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

Tunnicliff v Barrett [1833] NSWSupC 48

felony attaint, impact on tickets of leave - ticket of leave - convict rights - costs, legal - reception of English law, convict rights - repugnance to English law - judicial notice - convict, proof of conviction

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 8 June 1833

Source: Sydney Herald, 10 June 1833[ 1]

Tunnicliff v. Barrett. - The defendant in this case moved, that plaintiff should give security for costs, he being a prisoner for life holding a Ticket of Leave.

Mr. Keith opposed the motion, on the ground that a Colonial Act of the 24th August, 1832, permitted Ticket-of-Leave holders to sue and be sued, and that the English statute of the 11th of July, 1832, was not in force in this Colony.

The Chief Justice was of opinion that the question did not admit of two arguments; the Act of the Imperial Parliament was the law of this country; he wished the law had stood according to the local act; it would have been much better; what was the use of giving persons Tickets-of-Leave and shutting Court's of Law against them, it was making them vagrants, it was a plain position of common sense.  The Act passed in July, as soon as it arrived was promulgated, and became a posterior law by which the other laws were abrogated, therefore security must be found. - Granted.

 

Forbes C.J., Dowling and Burton JJ, 8 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

 

[p. 68] Wentworth had moved for a rule calling on the plf Tunny to shew cause why he should not give security for costs, he being a convict felon holding a ticket of leave.  It was an action of assumpsit.  He relied on the late act of 3 Wm. 4. s. 2. which prevents any transported person holding a ticket of leave from acquiring [p. 69] property or serving in any court of law.

Keith shewed cause & contended that the statute of Wm. 4 upon this subject was not in force in the colony until it was adopted by the local legislature.  That act passed on the 11th July 1832.  Now by the local ordinance of 3 Wm 4. No. 3. s. 36. passed on the 24th Augt 1832. persons holding tickets of leave were expressly permitted to sue & be sued.  Admitting however that the statute Wm 4. to be in force here, still it could not have a retrospective operation so as to affect persons, who like the plf had had their tickets of leave before the passing of the act.  That act in the first clause, abolished the punishment of death in certain cases, previously capital, & substituted transportation for life.  As matter therefore of fair construction, the act could only be applied to [p. 70] such persons as were transported under that act.  In addition to this, New South Wales was not expressly named in the 2.d Section.

Forbes C.J.  There is no doubt that the act of Parliament, being declaratory is in force in the colony without any express adoption by the local legislature.  The Court knows that this act has been promulgated in the New South Wales Government Gazette.  In the second section it declares that all transported persons to any penal colony of England, holding tickets of leave shall not be capable of acquiring property or maintaining any action or suit at law.  There is here no limitation of time as to its operation.  New South Wales is not in terms mentioned, but the court is bound to take judicial notice that this is one of the [p. 71] few penal colonies belonging to the crown.  The effect of the act is to repeal that part of the local ordinance respecting persons holding tickets of leave.  Acts of the Imperial Parliament made for the Colonies are paramount & control the ordinances of the local legislature, without any express adoption.  It appears to me that we are bound to hold the act in full operation, & therefore the plf must give the required security.

Dowling J.  I am of the same opinion.  Similar applications to this were made last term & the court ordered security to be given (Gilroy v Mannix Ante p. 14.)[2 ]  The words of the clause are too comprehensive to admit of any doubt of its including all transported persons, not having the Governor's pardon.  The act itself is only in affirmation of the Common law as it stood [p. 72] before with reference to convict felons.  It however goes farther than the common law, so as to comprehend all transported persons, no matter for what offence they shall have been transported.  There are some transportable misdemeanours - such has perjury - offences agt the Customs laws - desertion from the Army & Navy by the articles of war.  All persons transported for such offences are included.  The act of Parliament clearly overrides the local ordinance.  That ordinance was passed for regulating the summary jurisdiction of magistrates.  It contains one clause providing a very easy mode of proving both in civil & criminal cases, that a person has been an attainted convict - thereby dispensing with the ordinary legal proof in such cases.  By way of compensation however [p. 73] for such a modification of the English rule of evidence in such cases, the last clause makes a saving in favour of persons holding tickets of leave, who are expressly recognized as being sufficiently Sui generis, as to sue & be sued, & capable of holding & acquiring property.  The effect however of the act of Parliament is to abrogate that part of the local ordinance. -

Burton J. was of the same opinion.

Rule absolute.

 

Notes

[1 ] On the rights of convicts, see also Attainted Jurors Opinion, 1833; Gilroy v. Mannix, 1833.

See Bourke to Goderich, 20 November 1832 (Historical Records of Australia, Series 1, Vol. 16, pp 802-805) on the history of the colony's ticket of leave regulations.  After two years' service, male convicts were also given the right to have their wives and families travel to New South Wales from England, and to obtain a ticket once they arrived.  Those who had families in the colony could obtain a ticket to maintain them even before two years.  Female convicts had to wait two, three or four years, depending on the length of the original sentence.  Governor Bourke also said that he had always considered that attaint applied as soon as a person was sentenced to transportation and servitude, so that he or she was unable to hold property or sue in the courts.  (On this he was wrong: attaint did not attach to all convicts, but only to those sentenced to death for felony. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 66, 70.)  The governor also pointed out that it was often impossible to produce the original record of conviction from Britain or Ireland, and thus attaint could not be established.  Thus the Legislative Council relaxed the law of evidence by s. 35 of (1832) 3 Wm 4 No. 3: the fact of a person coming to the colony as a convict was prima facie proof of conviction of felony.  Under s. 36, the common law on attaint was relaxed a little: ticket of leave holders could sue to protect property gained during the currency of the ticket.  This, Bourke admitted, may have been inconsistent with the imperial Act, 2 and 3 Wm 4 c. 62.  A ticket of leave allowed the convict to earn sufficient money to feed, clothe and house herself or himself.  For this to work, he or she had to have the means to sue in order to protect any property earned.  Any imperial Act that removed this right would destroy this system.

[2 ] See Gilroy v. Mannix, 1833.

Published by the Division of Law, Macquarie University