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

In re Shelly (1828) NSW Sel Cas (Dowling) 207; [1829] NSWSupC 92

prison conditions - bail - imprisonment for debt

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 December 1829

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


[p. 266] [ A person of respectable condition being committed to the common gaol for want of sureties to keep the peace, and having no means of taking air and exercise without mixing with common Felons, the Court ordered him to be removed to the Debtors side.][1 ]

In re John Darley Shelly

This gentleman had been bound over the 21st Decr last by the Sydney Police Bench in the sum of 600£ and two sureties in the sum of £300 each to keep the peace for two years towards all his Majesty's subjects and particularly towards General Ralph Darling the Governor of N.S.W. for violent conduct towards His Excellency on the steps of St James' Church on Sunday the 20 December.  He had been committed to Jail for default of Bail.Keith now moved on his behalf complaining that he was confined on the Felons side of the Gaol in an unhealthy situation, and compelled to listen to the conversation of the worst class of Felons.  He therefore prayed that he might be removed to a more airy apartment less liable to injure his health, and less subject to annoyance by the conversation of the inmates of the Jail.  He denied all intention of assaulting or injuring the Governor and stated that as he was a stranger in this Country he had no prospect of obtaining the required security. [p. 267]  Forbes CJ after conferring with the other Judges said - There us no statement made by the petitioner which imputes any undue severity or improper exercise of authority towards him on the part of those who have charge of the Jail, and the Custody of persons in his situation.  It is an application to the discretion of the Court to give directions as to the mode in which he shall be confined.  He states that he has been taken before the Magistrates upon a charge which Induced them to bind him over to keep the peace for two years, himself in £600 and two sureties in £300 each - That finding himself a stranger in this Country without the means of procuring sureties, and that in failure thereof he has been committed to prison; that he is now in a situation in the prison in which he has no means of taking air and exercise without mixing with common Felons that even in his apartment he is liable to have his feelings wounded and his quietness interrupted by hearing the conversation of persons whom he has [p. 268] never been in the habit of associating and he prays that the Court will cause him to be removed to some other part of the Gaol where he may have the benefit of air and exercise free from these annoyances.  There is no doubt that this Court without violating any rule may direct that Gentleman shall be removed to another part of the gaol.  We may deal with this case, as with every other of this description.  The Gaol is by law under the authority of the Court.  The Court has made rules and regulations for the conduct of the Gaol  At the time these rules and regulations were made.  We felt the difficulty from the want of room and accommodation of entering into any regular classification of prisoners no provision for that reason, was made for persons of the Class of this gentleman Confinement in cases of this nature often operates as a punishment of considerable severity.  The rules of the Court were framed under this difficulty that we had not the means of alloting any particular portion of the Gaol to persons committed for want of sureties to keep the peace  We divided the inmates [p. 269] of the Gaol as far as we could into classes.  These were persons confined for debt felony, misdemeanours and fines.  We never contemplated that persons of this Gentlemans condition would be compelled to go to Gaol for want of sureties.  A stranger in this Colony may be so situated as not be able to procure persons to bail him  Although there may be rules drawn up for the Government of the Gaol yet those rules fall under the general principle of the rules of this Court, which may be necessary from time to time to mould them according to circumstances.  Attending to the Matters now stated to us in the affidavit read we think it our duty to interpose, and for that purpose we do order and direct that this person be removed to the debtors side of the gaol, and be allowed the use of that portion of the gaol in common with the debtors.




[1 ] See also, Australian, 31 December 1829.



Published by the Division of Law, Macquarie University