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

Ex parte England, Mackay and Coomber (1830) NSW Sel Cas (Dowling) 574; [1830] NSWSupC 79

convict escape, habeas corpus, Western Australia, hulk, Supreme Court rules concerning , Supreme Court Rules, disallowance of

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 27 and 29 November 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466[1 ]

[p. 33]

Where three men were brought in Irons by the Captain of a Ship of War from Swan Port, and lodged in Irons on board the Prison Hulk in Port Jackson a Judge at Chambers granted a Habeas Corpus to inquire into [p.34] the cause of their detention.  A warrant of Commitment by a single N.S.W. Magistrate under the above circumstances headed Summary Jurisdiction "Strongly suspected to be run aways from Van Dieman's Land" Remanded to the Custody of the Sheriff for the disposal of His Excellency the Governor" is bad upon the face of it.  A vague suspicion without any proof that such persons are runaway convicts from V.D.L. is not [p.35] sufficient to cause their detention.  Persons brought here by compulsion suspected to be convicts from V.D.L. are not within the jurisdiction of the local magistrates of Sydney.

For actions.

Source: Dowling, Proceedings of the Supreme Court, Vol. 48, Archives Office of New South Wales, 2/3231

[p. 33]

In the morning of this day, Forbes C. J. granted a Habeas Corpus, on the prayer of Rowe to bring up the body of the persons named in the Margin confined on board the Prison Hulk Phoenix in Port Jackson, for the purpose of being discharged for want of a sufficient ground of detention.  The writ was made returnable this day at two o'clock.

[p. 34] Accordingly at that hour, I sat at the request of the Chief Justice to hear the case.

Mr. Murray the master of the Hulk brought the prisoners before us in pursuance of the writ.

Mr. Gurner the Chief Clerk read the affidavit on which the writ was grounded, which stated in substance, that the prisoners were His Majesty's free subjects, and had shipped themselves as free men from Van Dieman's Land to go to Swan Port - that on arrival there they had been placed in irons on board the H. M. S. Comet and brought to N.S.W. and were now detained on board the Phoenix Hulk without any lawful cause.

The return to the Habeas Corpus was in the following terms, setting forth of the Copy of the Commitment ``Summary Jurisdiction"

``Strongly suspected to be runaways from Van Dieman's Land" - ``Remanded to the [p. 35] custody of the Sheriff for the disposal of His Excellency the Governor."[2 ] Signed F. A. Hely J.P."

Rowe for the prisoners contended that they were entitled to be discharged, and addressed the following arguments:

Assuming that the magistrates have jurisdiction over persons suspected to be runaway prisoners of the Crown from V.D.L. still the place of confinement is improper, for they are only to be kept in safe custody, which may mean the watchhouse - on bail - or the ordinary Prison - but not in the Phoenix Hulk which is appropriated only to convicted persons.  The return to the Habeas Corpus however is insufficient in point of form, first in not shewing any lawful ground of detention, & secondly, in directing the prisoners to remain in custody ``for the disposal of His Excellency the Governor."  The commitment should shew a positive charge of a crime committed within the summary jurisdiction of the magistrates.  They are only said to be ``strongly suspected [p. 36] of being runaways from Van Dieman's Land." This does not necessarily import that they are runaway prisoners of the Crown. They may be runaway soldiers, or sailors, or free servants in breach of a civil contract.  Ex viterunium there is not constat of any offense committed by the prisoners warranting their detention.  On this ground they are entitled to their discharge.  But secondly they are ``Remanded to the custody of the sheriff for the disposal of his Excellency the Governor." - Remanded for the disposal of His Excellency the Governor! What authority has the Governor of this Colony to dispose of any person prima facie a free subject? These men are sworn to be free, & there is nothing on which the Judges can act, to gainsay this assertion.  Every man is presumed to be free until he contrary is shewn.  But assuming that the Magistrates have jurisdiction in this matter by virtue of the Local Ordinance 9 G. 4. No. 10. (which it is denied that they have for that ordinance was passed alio intuitu - namely for the internal police of N.S.W and to regulate the treatment [p. 37] of convict felons transported to this colony), still they have not pursued the course pointed out by the ordinance - They are only to detain in safe custody persons suspected to be runaways, until they give the magistrates reasonable satisfaction that they are not runaways.  Now these men offered to given the magistrates reasonable satisfaction that they are free - namely, by calling witnesses to shew that they are free men - & the prisoners are now prepared to take issue upon that fact.  So that the Magistrates have not proceeded to hear & determine this matter, as they ought to have done, according to this ordinance.  They would be compellable by mandamus to hear & determine under the ordinance, whether the men were free.  This they have not done. - So that in every point of view their proceedings are null & void.

Forbes C.J said he had no difficulty in intimating that the clause of the Local ordinance adverted to was only intended to apply to cases brought before Magistrates residing at the distance from Sydney, without the ready means of ascertaining from the Colonial office [p. 38] whether a person suspected to be a runaway prisoner of the crown, was or was not a free man.  For this purpose the party might be detained in custody, until he himself gave the magistrate reasonable satisfaction that he was a freeman, or until the magistrate could obtain the necessary information from the Colonial Secretary's Office.  There might, however, be some other local ordinance, which would warrant this course of proceeding with respect to persons in this country suspected to be run away prisoners of the Crown from V.D.L.  Until that fact was ascertained, the prisoners must be remanded, and in the mean time, a certiorari must go to the committing magistrates to return the depositions on which the commitment was founded.

Dowling J. suggested also to Mr Rowe that he had better serve a notice of this proceeding on the Crown Solicitor for him to attend, on Monday, at two o'clock; to which day & hour the case was adjourned, & the prisoners were remanded.

[p. 39]

Monday 29th November

At Chambers

Present Forbes C.J. Dowling J.

In re John England and others.

Now on this day the prisoners were again brought before us and were attended by their Counsel Mr. Rowe.  W.H. Moore Esqre attended as Solicitor for the Crown.

No formal return had been made to the certiorari, but F.A. Hely Esqre who had received notice of the proceedings, transmitted to Mr. Gurner the chief clerk, three several documents as being the only grounds for committing the prisoners.  These documents were read.

The first dated 14th October 1830 purported to be a letter written by the prisoner England by the name of David Gorbel and addressed to Sir Edward Parry at Port Stephen for the [p. 40] the purpose of requiring that gentleman to identify the prisoner as David Gorbel a seaman who had sailed from England with Sir Edward in February 1829 on board the same vessel, in which that gentleman had arrived in New South Wales.  The letter called the attention of Sir Edward to a number of minute circumstances which were stated to have occurred on board the vessel during the voyage for the purpose thereby of bringing the writer to the recollection of Sir Edward.

The second document was a letter dated Port Stephen October 29th 1830 addressed by Sir Edward Parry to F. A. Hely Esqre acknowledging the receipt of the letter purporting to have been written by David Gorbel and stating [p. 41] stating that he had a recollection of a seaman named David, but whose surname he did not know, having served on board the vessel in which he came out to New South Wales. The man David he described as being 21 years of age, six feet in heighth [sic] and a Yorkshireman by birth.  The letter concluded by referring Mr. Hely to certain persons by name living in Sydney who could identify the man David as being the person to whom he alluded and determine whether the writer of the letter to him was that person. -

The third document, purported to be a voluntary declaration of the prisoner John England, in the presence of F. A. Hely Esq to the effect that the prisoner had been tried and convicted and sentenced to seven years transportation at Bristol in the month of October 1820; that from Bristol he was removed on board the Justice Hulk at Woolwich [p. 42] Woolwich [sic], that shortly afterwards he was put on board the Malabar convict ship, Ascough, Master, and arrived at Van Dieman's Land in 1821; that at Vandiemans Land he served out his 7 years term of transportation & afterwards carried on the business of a lime burner as a free man on his own account, that in September last he shipped himself on board the William, Young Master, as a carpenter and cleared out as a free man to go to the new settlement at Swan River; that on board the William there was a seaman named David Garbel, who had come out in the ship with Sir Edward Parry; that being willing to conceal the fact of his having been a convict at Van dieman's Land, he for that purpose whilst at [p. 43] at Swan River assumed the name of David Garbutt and was afterwards put on board H.M.S. Comet on suspicion of being a run away convict.

The deposition of Captain Sandilands of H.M.S. Comet, taken before Mr. Hely was then put in and read. The deposition stated that the three prisoners had been brought on board H.M.S. Comet in September last whilst that vessel was at Swan River, and that at the requisition of Captain Stirling, Governor of that settlement, being suspected to be runaway convicts from Van Diemans Land they were delivered to deponent in irons as prisoners for the purpose of being brought to Sydney.  The affidavit concluded in these terms, ``from all deponent has [p. 44] has heard, he has reason to suspect and believe that the prisoners are runaway convicts from Van diemans Land."--

These were the only documents brought before us to warrant the detention of the prisoners.

Rowe, on behalf of the prisoners contended that the deposition of Captain Sandilands, did not disclose any grounds for causing the apprehension of the prisoners by Lieutenant Governor Stirling.  Captain Sandlilands did not shew any warrant document or evidence authorising him to take these persons on board the comet.  He merely deposed, that from all he had heard, he had reason to suspect and believe that they were runaway convicts from Van diemans Land.  Now that was not sufficient for the detention of these persons.  There must at least [p. 45] least [sic] be some reasonable cause to suspect and believe that they were runaways in order to justify this extraordinary proceeding. Hearsay and conjecture were not sufficient to deprive a man of his liberty.  Whatever suspicion might arise respecting the prisoner England that suspicion only arose from his own conduct in this country and not from any thing that appeared to have taken place at Swan River.  So that his original detainer was  unlawful and the man being brought here against his will, his conduct in this country would not make him amenable to our local laws.  With respect to the other prisoners, there was not a shadow of pretence for saying that they were runaway convicts.

Moore, on the part of the crown admitted [p. blank] admitted, that the commitment of the prisoners by Mr. Hely was informal, but the question, he said, was whether the judges would order them to be discharged if there was reasonable ground for suspecting them to be runaway prisoners of the crown.  It was immaterial to the present question whether the original confinement on board the Comet, was justifiable or not.  From that confinement they had been released by habeas corpus, and then being found at large in Sydney, they were taken up again  carried before Mr. Hely and committed on suspicion on being runaways in order to be sent to Vandiemens Land. Now there were two local ordinances applicable to the present case.  The first was No. 10.9.G.4. which authorised the detention of persons suspected to be prisoners of the crown unlawfully [p. blank] - fully [sic] at large, and cast upon them the burden of proving that they were free, and the second was No. 13.9.G.4. which gave the Justices a jurisdiction as well over convicts transported to Vandiemens Land if found in New South Wales, as over convicts originally transported to New South Wales.  Here then these prisoners though originally transported to Van diemens Land being found at large suspected of being runaway prisoners of the Crown, the onus of proving their freedom, lay upon them, and admitting that their first commitment was informal, still the judges are bound to remand them, to have them properly committed. -

Rowe in reply contended that the local ordinances cited did not apply to the present case.  The first was a temporary act passed for ht purpose of preventing [p. 46] preventing housebreaking and was expressly confined in its operation to offences committed in New South Wales.  These prisoners however having been brought here by force they could not be said to be found unlawfully at large.  It was true that the second act gave to the Justices of this Colony a jurisdiction to hear and determine summarily offences committed by persons originally transported to Van deimens  Land and coming to this country from thence before their sentence was expired.  But that jurisdiction could only arise where an offence was committed in this colony by such persons.  Now assuming that these prisoners were transported [p. 47] convicts to V.D. Land yet they have committed no offence which would render them subject to the jurisdiction of the Sydney Magistrates.  At all events the jurisdiction must be exercised by two or more Magistrates whereas here only one appears to have acted.  So that the whole of the proceeding is illegal in form as well as in substance.

Forbes C.J. It appears to me that the instrument under which these persons are detained in custody is so informal, vague, and indefinite, that they are entitled to be discharged from it out of custody.  They are committed to the custody of the Sheriff ``for the disposal of his Excellency the Gover" - being ``Strongly suspected to be runaways from V.D. Land."  I do not know under what law these men could be disposed of by the executive authorities [p. 48] on the vague suspicion here alleged.  There must be some proof clearly establishing at least a prima facie charge of an offence before the Executive authorities could step in & seize upon these persons & dispose of them, either by imprisonment, or transportation to some other settlement.  Under the circumstances presented to us we were bound to grant a Habeas Corpus, & direct a Certiorari to issue to bring up the depositions.  From the documents produced it appears to us that there is nothg on the face of them to warrant the magistrate in taking these people up & committing them in this manner.  It is contended that this proceedings was justifiable under a temporary act of the local legislature passed for the suppression of robbery & house breaking.  I will make this observation, namely: - It appears to me that it is a most important part of the duty of magistrates in the exercise of a very difficult & important trust, to  give the act of the local legislature a natural & obvious construction, and not to strain the [p. 49] law so as to make it applicable to cases which the legislature never could have had in contemplation.  The act referred to is limited in its operation for two years.  The preamble recites - ``that the crimes of housebreaking and robbery have increased to an alarming degree & that it was necessary to make temporary provisions suited to the emergency of the occasion." Can I understand that a person proceeding from V.D. Land, o Swan River, a free settlement, & brought thence to this colony, under the circumstances of this case, was ever in the contemplation of the legislative in passing the Local ordinance in question, the words of which are ``That it shall be lawful for any persons having reasonable case to suspect & believe any other person to be a transported felon unlawfully at large, immediately by himself". &C?  These men were seized at Swan River, put on board a man of [p. 50] war, & on their arrival here are transferred on board the Phoenix Hulk for better security.  They have always been in custody since they have been in this colony - they have never in fact been at large except for a few hours, & then only because one of the judges under writ of habeas corpus ordered them to be released for want of a sufficient cause of detention being shewn on the face of the return.  If indeed they had come here voluntarily, & were found moving about under suspicious circumstances, then I am not prepared to say that under the local ordinance they might not be taken up & detained until it cd be ascertained whether they were or were not [p. 51] unlawfully at large in this Colony. I have no difficulty in saying that this local ordinance does not apply to these men, for they were never unlawfully at large in this colony.  It is well known that the provisions of this act, are in many respects in derogation of the laws of England, & as they give the Magistrates of this Territory very extraordinary powers, they ought to be construed most strictly.  But looking at the powers thereby given or detaining a person suspected to e unlawfully at large it is obviously that it applies to the up  country districts & not to Sydney, where there are the means at once of ascertaining whether the person be or be not a runaway convict, transported to this Colony. In the case of a man escaping from V.D. Land I take it to be perfectly clear that the magistrates of this territory have no jurisdiction [p. 52] to determine that question.  In this case these men were suspected to be runaways from V.D.L; that circumstance ought to have awakened the attention of the Magistrate, & he must have seen at once that he had no jurisdiction.  He ought not have a strained the law to meet a case not within the words or the spirit of the local ordinance.  In the case of persons transported to any other Colony, & being found unlawfully at large here, the manner in which they are to be disposed of is matter for the executive authorities of government, & not for the local magistracy whose jurisdiction is [p. 53] confined to the bounds of the territory.  If this were a case of that description and it appeared manifest, or there were reasonable grounds of suspecting & believing that these men were runaway convicts from V.D.L., then the question would fairly arise what steps the Executive Government might take for the removal of them to the place whence they were suspected to have escaped.  By virtue of the authority of the Supreme Court, which had the general administration of the laws of the empire, in such a case, I am not prepared to say that the Judge, would not be warranted in ordering the parties to be detained & transmitted to the place where they might be tried according to law.  This was the course adopted by the Court in the recent case of Jane New but in that case the woman admitted in an affidavit that she was a transported felon the V.D.L then under an unexpired sentence, whereupon, as she had no lawful excuse for being found [p. 54] at large in this Colony, the Judges, by reason of their general power as conservators of the general laws of the empire directed her to be detained & removed to V.D.L. Where inferior magistrates interfere with the personal liberty of a subject they are bound to shew jurisdiction - that they have authority to deal with a man under the circumstances here disclosed.  These persons being brought before us by Habeas Corpus, & according to the return there being nothing but a mere vague suspicion of there  being runaways from V.D.L. we have no alternative but to direct their discharge. With respect to two of the individuals before us, there is not a shadow of proof that the [sic] are or ever were convict felons to this country or V.D.L.  There is nothing but a vague suspicion [p. 55] alleged upon the deposition of Capt Sandiland -- stating that from all he has heard & believe , he suspects that they are runaways from V.D.L. He does not even say that he believes them to be runaways.  There is no statement on oath of any circumstances fairly inducing the suspicion alleged.  The error appears to lie at Swan River in sending these men without any proof whatever of their having done anything which would warrant their removal to this settlement.  With respect to the man England alias Garbett the case is somewhat different.  He admits that he was once a prisoner under sentence of transportation to V.D.L. but having become free, went to Swan River, & there assumed the name of Garbett in order to conceal the fact of his having been transported.  His conduct in writing to Sir E Parry in the name of Garbett, & his subsequent admission that that was not his name, does certainly excite some suspicion, but as he affirms that he is in a condition to prove most satisfactory that he is a free man, we will give him an opportunity of producing his witnesses, although I think the onus lies upon the other side to prove that he is otherwise than a free man.

Dowling J concurred with the C.J.

The prisoners Mackay & Coombes were discharged [p. 56] and England was admitted to bail to come up again on the 1st December


Wednesday 1st December 1831

Coram Forbes C J

 Dowling J

Now on this day the prisoner England appeared & produced most satisfactory proof that although he had originally been transported to V.D.L. he had become free by effluxion of time, & set up the business of a lime burner which he carried on for some time at Hobart Town, & then went to Swan River settlement in the service of Mr. Gallibrand, & was from thence conveyed to this settlement in the Comet.

He was then ordered to be discharged.

See the account of actions brought by these men subsequently - vols post.

Vols 51. 52 -53



[1 ] See also England v. McQuoid and Murray, 1831; Mackay v. McQuoid and Murray, 1831; Mackay v. Sandilands, 1831; England v. Sandilands, 1831.  Darling reported these cases to Murray on 2 February 1831: Historical Records of Australia, Vol. 16, p. 61.

Murray informed Governor Darling by despatch dated 12 May 1830, that the British government had decided to disallow the Supreme Court Rules dealing with the hulk and the gaols.  There had never been an intention that the judges were entitled to make rules on such subjects: Historical Records of Australia, Series 1, Vol. 15, p. 473.  The Legislative Council should pass an Act instead.

[2 ] Marginal note: ``23d Nov 1830".

Published by the Division of Law, Macquarie University