Skip to Content

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

In re Stone [1832] NSWSupC 38

habeas corpus - liquor laws - convict, harbouring - supervision of inferior courts - certiorari

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 9 June 1832

Source: Sydney Herald, 14 June 1832[1 ]


In Banco.

Saturday. - Mr Rowe moved that Edward Stone, then before the Court on a writ of habeas corpus, be discharged from custody, on the ground that the commitment was irregular, and not in accordance with the Act.  The man was committed to gaol by Major Antill and Mr. Elliot, from the Stone Quarry Bench, for the period of nine calendar months; six for selling spirits, and three for harbouring the person to whom he sold them.  Mr. R. now contended that the commitment was irregular, inasmuch as the Act set forth only months, not calendar months.  Stone had therefore been sentenced 270 days confinement, while the utmost time allowed by law was only 252 days, the commitment was therefore void in force; the Magistrates had acted extra-judicially in a case where they had no authority.  He moved this as one ground for his discharge.  Again the conviction was informal.

Chief Justice. - There is no conviction before the Court, but a parcel of crude and loose notes taken before the Bench.

Mr. Rowe. - Well your Honors, I rely on the first ground.

 Chief Justice. - There are on the proceedings a body of facts, out of which a good and valid conviction could be made.

Mr. Rowe. - But your Honors, they could not, alter the commitment.

Judge Dowling. - Oh, yes, Mr. Rowe.  In the memorable case of Lockaye, the man was sent back, and a proper commitment made out.  It is an every day practice at home.

Judge Stephen. - It is more a matter of form than of substance.

Chief Justice. - We will let the case lie over till next Saturday.  At present he had no doubt the case should be sent back, and a proper conviction and regular commitment made out.  He hoped every Magistrate in the Colony would in future understand, that when the proceedings were required in a case of summary jurisdiction, there was no necessity to send voluminous proceedings - all that was necessary was a record of the conviction.  In this case the very thing required had been omitted.



Forbes C.J., Stephen and Dowling JJ, 19 July 1832

Source: Sydney Gazette, 21 July 1832[2 ]


A settler of the name of Edward Stone, had been committed to the jail of Sydney, by Major Antill and Mr. Eliot, two magistrates of the Stonequarry district, for 270 days, there to be kept to hard labour, as the house of correction.  A Habeas Corpus had been obtained on a former day (which the Court ordered to be accompanied by a writ of Certiorari, to bring up the conviction, &c., from the above justices):-  Stone being before the Court, Mr. Rowe moved their Honors that the proceedings be read, when it appeared that two convictions under two separate Acts of Council had been embodied into one conviction, and one committal; and that the justices had exceeded their jurisdiction, by sentencing the defendant to about 20 days' more imprisonment than they had power, and to hard labour likewise; the Act against selling spirits, not authorising hard labour.  Mr. Rowe, on the return to the Certiorari being read, claimed, at once, the discharge of the defendant upon the three grounds apparent on the conviction - first, there being two charges in oneconviction, which went on to say, ``for the said offence;" the conviction and commitment were bad for duplicity.  He cited here a case in point, decided before the King's Bench in England, and reported in 1 Paley and B. and A. [Mr. Justice Dowling observed that this was a stronger case; as that referred to by Mr. Rowe had been two convictions under one Act, whereas the matter now before the Court had been under two distinct Acts.]

Mr. Rowe went on to contend, secondly, that the conviction and commitment were void, as the justices had given more than they had authority as punishment; and, thirdly, to that species of punishment (hard labour) not authorised by the Act.

Their Honors asked if any gentleman appeared for the magistrates in question, and being answered in the negative the three Judges delivered their opinions seriatim upon the badness of the conviction and warrant, and directed the proceedings to be quashed, and the defendant to be discharged.


Forbes C.J., Stephen and Dowling JJ, 19 July 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255


[p. 87] In this case the magistrates having returned the proceedings it appeared that they had included two convictions for two different offences in one record, namely one for harbouring prisoners of the Crown & the other for selling spirits without a licence.  For the first offence, by the local ordinance, the deft would be liable to hard labour in addition to imprisonment but for the second he could only [p. 88] be imprisoned without hard labour.  The judgement of the magistrates in both cases awarded hard labour in addition to the imprisonment, which was calculated not by calendar months, but by days.  After hearing Rowe, who prayed that the conviction be quashed,

The Court were clearly of opinion that the conviction was void, for including two distinct offences in one record.

Dowling J.  In all pleadings or forms of proceeding whether civil or criminal, certainty to common intendment is requisite.  In Civil causes, you cannot join different species of action - such as tort with assumpsit.  So in criminal proceedings you cannot join felony with misdemeanour - why? because the judgement of the law is different.  Here two offences are contained in on record [p. 89] each being subject to a different mode of punishment, & to both are confounded together in such manner as that neither of their convictions is perfectly recorded.  In Rex v Solomon, (See Payley on convictions 218) it was doubted whether one record co.d contain two convictions upon this same statute.  Here the two convictions are upon two different local ordinances, & I think we ought not support this conviction.  Upon the merits of the case little can be said in the Defts favour, but he is entitled to the benefit of the formal objection, & therefore the Conviction must be




[1 ] This was recorded by Dowling J. in Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255 at pp 71-72.  He recorded the judges' decision as follows: "The Court determined that they could not discharge the prisoner for any defect in the commitment until they saw the conviction, for non constat there was a good conviction, & if so they would remit the prisoner to the Bench of Justices to make out a good commitment.

"A certiorari was therefore directed to bring up the conviction."

Duties were imposed on imported liquor by (1831) 2 Wm 4 No. 2 (Sydney Gazette, 15 October 1831).

[2 ] See also Sydney Herald, 23 July 1832.

Published by the Division of Law, Macquarie University