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

R v Macduff (1832) NSW Sel Cas (Dowling) 215; [1832] NSWSupC 15

Solicitor General, right to defend prisoners

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 3 March 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 151] [Where a defendant was convicted of a common assault in the prosecution of a private individual but was [p. 152] defended by the Solicitor General.  Held that no new trial could be granted; & quoece whether the public law officer of the Crown could be permitted to defend the party without the licence of the Crown.]

 

[p. 151]March 3rd 1832

Rex v Macduff

 

The defendant was tried and convicted before me of a common assault and sentenced to 5£ fine to the King.

Williams now moved for a new trial.  He had been retained as Counsel to conduct the prosecution but being [p. 152] prevented from attending the trial proceeded in his absence the Judge examining the witnesses.  The Solicitor General (McDowell) had defended the prisoner as was alleged without a special licence and he wished to obtain the opinion as to the regularity of this practice.

The Chief Justice.  There is no ground for granting a new Trial in such a case.  Such a thing was never heard of where a party has been convicted and the prosecutor seek a new trial.  We are not called upon to give any opinion as to whether one of the Crown officers can be opposed to the Crown in a Crown case without a special licence.  As a general observation however it must be borne in mind that the Crown officers in this Country are in place of a Grand Jury, & it [p. 153] certainly would not be seemly that a gentleman armed with such extensive powers should be permitted to defend cases where he is by face of law the formal public prosecutor.

Dowling J. until the contrary is shewn, we must presume that the Solicitor General had a licence from the proper authority to defend this man.  At the same time concurring with the general observation.  Suggested by the Chief Justice, it would be as well to guard against the anomalous position (in this country) of a paid public Crown Officer apparently representing the Crown, but substantially appearing against the Crown.  It is difficult to draw a distinction between a misdemeanour and a Capital felony, if the practice alluded to were permitted.

 

Rule Refused.

Published by the Division of Law, Macquarie University