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

R. v. Long (1829) NSW Sel Cas (Dowling) 507; [1829] NSWSupC 10

liquor laws - supervision of inferior courts - certiorari - married women's legal disabilities

 

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ,, 2 March 1829

Source: Sydney Gazette, 5 March 1829

Rex v. Daniel Long.

In this case Mr. Sydney Stephen moved for a writ of Certiorari, directed to certain Magistrates of Sydney, calling on them to bring up the record of the proceedings against the defendant, in a case of selling spirits without a license, and also the conviction had thereon, in order to its being quashed.  Mr. Stephen was about stating the various objections he had to take to the nature of the evidence adduced, and also to the form of proceeding before the Justices, when he was interrupted by,

Mr. Justice Dowling, who stated that these were matters wholly for the consideration of the Magistrates, and that the Court had nothing whatever to do with any thing but the conviction itself.  The law had given the Magistrates jurisdiction over such cases as the one mentioned by the learned Counsel, and it was not for that Court to go into the grounds upon which they arrived at the conclusion they had formed.  If the objection was to the conviction, then the Court would entertain the question; because a general form had been drawn out by the Chief Justice, which was to be followed in all cases before Magistrates, wherein no specific provision of that nature was made by the existing law.  The only thing the Court could look at was the conviction; if that was regular, it had no further jurisdiction.  And it had been already solemnly decided that all a Certiorari could do was to compel the Justices to return their conviction.  If it could be shewn that they acted improperly in performing their functions, there were specific remedies provided by law.

Mr. Stephen stated, that an application had been made to the Magistrates for a copy of the conviction, but they had declined furnishing it, 'till they had consulted with the Crown Officers.  But he had every reason to suppose that it was not made up after the form prescribed by the Chief Justice.

The Chief Justice observed that every convicted man was entitled, as of right, to a copy of his conviction.  If, however, the Magistrates had only declined for the purpose of obtaining proper advice upon the subject, he was of opinion that the present application had better stand over till Saturday next, and that, in the mean time, the Magistrates should be again applied to for a copy of the conviction.

The case was accordingly directed to stand over.[1 ]

 

Hearing, 30 March 1829

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

 [p.177] [In order to support a conviction for selling spirituous liquors without a license it must appear that the party convicted actually sold, or was privy to the act of selling.  Selling by wife not sufficient to convict husband.]

March 30th 1829

Rex v Daniel Long

The Defendant had been convicted of selling Spirituous liquors without a license upon proof that the selling was by the wife alone.

Per Curiam.  This conviction cannot be upheld.  There is an erroneous impression upon the minds of the Justices that they may convict the husband for an act done by the wife; but this cannot be without proof that the husband is privy to or concurs in the act.

Conviction quashed

 

Notes

[1 ] This hearing was recorded in Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, as follows:

[pp 133-134] "[Before the Court will grant a certiorari to return a conviction on the ground that Justices have refused a Copy, there must be a regular demand and refusal.]

[p. 133]"In re Daniel Long

"S. Stephen moved for a certiorari to return the conviction of this person for selling spirituous liquors without a licence, and the proceedings in order [p. 134] thereto.

"It appearing that there had been no regular demand and refusal of a copy of the conviction the case was ordered to stand over, if Stephen chose to renew his motion."

Published by the Division of Law, Macquarie University