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

In re McLaren (1830) NSW Sel Cas (Dowling) 662; [1830] NSWSupC 10

trial by jury, contempt

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, March 1830[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[p. 290]

[Where a Special juryman being fined for non attendance after being duly summoned sought to have the fine remitted on the ground that persons not duly qualified had been returned by the Magistrates as fit to serve on the same Juries the Court refused to remit the fine.]

In re John Maclaren

This Gentleman had been duly summoned as a special Juryman on the late Trials, and having failed to attend when called upon he was fined in the sum of 10£ for each default.

Dr Wardell now moved that the fines be remitted on the ground that the official Jury had not been duly struck in as much as most of the persons struck as special Jurymen although described as Merchants were in fact retail dealers, contrary to the provisions of the local Jury act.

Forbes CJ.  I am of opinion that there is no ground mat [sic] out for remitting these fines.  There was a duty imposed on this Gentleman in common with other Jurors summoned to attend the Court in obedience to this summons.  He has not attended and has broken the law and has rendered himself liable to the Penalty for his Contempt.  With respect to the objection suggested that proper persons were not returned to serve as special jurors assuming it to be well founded [p. 291] it cannot avail this gentleman nor can we take notice of it.  The act of the Local Legislature[2 ] has prescribed the mode in which special Jurors shall be returned that act was framed with great care pointing out the manner in which this public duty is to be performed.  We must presume that the persons to whom this duty is entrusted Have performed their duty.  If they have failed in performing their duty there is a course open for punishing them, and the law is strong enough to reach them for their neglect.  No legal ground certainly has been made out for accusing this gentleman for his contumacy.

Stephen J. concurred.

Dowling J.  Assuming that there is anything irregular in the mode of refusing the special Jurors, this objection does not lie in the mouth of this Gentleman, who being duly [p. 292] summoned was at all events bound to obey the Exigency of this summons But I do not think the objection of any validity in as much as we must assume that the summoning officers of those whose duty it was to return qualified persons have performed their duty.  I [sic] they have failed they may be liable to be prosecuted for their neglect.  The fines were mitigated to £5 in consideration of Mr Mclaren's honest mistake.



[1 ] From its position in the notebook, it is likely that this hearing took place in March 1830.

[2 ] Section 8 of (1828) 9 Geo. 4 c. 83 stated that civil cases were to be heard before a judge and two magistrates sitting as assessors.  However either side could apply instead for trial by jury, which the court could award or refuse "as the Justice of each particular Case may seem to such Courts to require".  (The provision applied to the Supreme Courts of New South Wales and Van Diemen's Land.)  The section also said that the qualifications and management of such jurors were to be established by colonial legislation.  The legislation was passed by the New South Wales Legislative Council in 1829: 10 Geo. IV No. 8; and amended in 1830: 11 Geo. IV No. 2.

Published by the Division of Law, Macquarie University