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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Clarke (1828) NSW Sel Cas (Dowling) 766; [1829] NSWSupC 49

liquor laws - supervision of inferior courts - habeas corpus - certiorari


Supreme Court of New South Wales

Banco hearing, 28 March 1829

Source: Australian, 31 March 1829



Mr. Rowe moved in the Supreme Court on Saturday, that Francis Clarke, who had been twice brought up and remanded, on that grand constitutional right -- a writ of habeas corpus, should be forthwith discharged.  This individual had been convicted on the 29th January last, of selling a gill of gin to a man named McDermott, and two other persons, on the 18th November preceding, he not being licensed to retail spirits.  It appeared that Clarke was fined 25l. sterling, and 2l. 14s. costs; and in default of payment within fourteen days, he was on the 13th February committed by the two Magistrates who had convicted him, to hard labor in the house of correction for three calendar months.  Mr. Rowe said he had several objections to take, but he would content himself with stating to their Honors the following: -- He contended the Magistrates had no authority, under the Act of Council, to pass sentence of 25l. penalty, or three months confinement.  The Act says, that in case of non-payment, &c. within fourteen days, an attachment shall issue against the goods and chattels of the offender, and if no sufficient goods were found, then, argued Mr. Rowe, and then only, would it be lawful to issue a warrant for imprisoning the defendant.  In this case no such attachment had issued, nor was it stated in the conviction that the money had not been paid within fourteen days, as required by the Act of Council.

The Solicitor General attempted to justify the validity of the conviction, but the Court held that the objections were fatal, and ordered the defendant to be discharged.

Mr. Rowe observed that his client had already suffered six weeks imprisonment.  If the conviction were illegal, then the imprisonment must have been illegal.  Why Mr. Rowe did not push the matter, we cannot say -- one conclusion being about as evident as the other.  It is to be hoped this, and the result of Bardsley's case last week, will make certain Magisterial persons cautious how they proceed in future.


Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462[2 ]

[p. 174] [The Court will not discharge a defendant for a defective warrant of commitment founded on a good conviction and will of it own authority direct a certiorari to return the conviction.  Before a debt is committed for an offence against the spirit license act, the justices must first ascertain whether he has any goods or chattels on which the penalty can be levied]

In re Clarke

The Defendant had been committed upon a manifestly defective warrant founded on a conviction for selling spirituous liquors without a license.  The Court ruled that they must see the conviction which if good on the face of it they would direct the warrant to be amended   In virtue of the general authority of the Court, a Certiorari was directed to issue to bring up the conviction for the Court to see it the conviction being returned accordingly it appeared that the justices before committing the Defendant for non-payment of the fine had not taken the preliminary steps to ascertain whether he had goods & Chattels on which the penalty could be levied pursuant to the local ordinance in that behalf and therefore directed the conviction to be quashed.




[1 ] See also Sydney Gazette, 31 March 1829.

The following is the complete record of another 1829 case on a similar point (Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462):

"[p. 195] [If there be a good conviction the Court will not discharge a Defendant upon a defective warrant of commitment.]

"In re James Cox

"The defendant had been convicted before three Justices at Parramatta for selling spirits without a license contrary to the local ordinance 6 G 4. No 4. 7 G 4. No 2.  Being unable to pay the penalty he was committed to render a warrant signed by only one of the convicting Magistrates.

"[p. 196]Rowe now moved for a Habeas Corpus to bring up the body and a Certiorari to return the proceedings for this objection, contending on the words of the Local ordinance 8 G 4. No 1. Sec 3 that the warrant must be signed by the Justices before whom the conviction took place.

"The Court granted the writs; but on a subsequent day the Solicitor General appeared for the Magistrates and consented that the conviction should be quashed upon the merits, and the Defendant discharged.  The Court on that occasion said that they should in the exercise of the general jurisdiction of the Court, have directed the warrant to be amended if there had been a legal conviction to support it and therefore for the objection to the warrant they could have granted no relief."

In the same volume of the Select Cases, Dowling J. also recorded the following:

"[p. 157] [The Court will not discharge a Defendant for a defective commitment on a summary

conviction without seeing the conviction]

"March 14th 1829

"In re Thomas Maher

"In this case Rowe moved to discharge the Defendant for a defective commitment, but the Court said they would see the conviction on which the commitment was founded before they would look to any defects in the latter, for not constant there might be a good conviction whereby to amend the commitment selling spirits with license.

Habeas corpus granted and certiorari awarded to bring up the conviction."

[2 ] From its position in the Select Cases, this appears to be a report of the same hearing of In re Clarke.

Published by the Division of Law, Macquarie University