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

Ex parte Wilson, Windeyer and Slade [1834] NSWSupC 15

trial by jury - magistrates, action against - jurors, emancipists as - malfeasance versus misfeasance - administrative law

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 March 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3276, vol. 93, p. 20

[p. 20]Plunkett S.G. moved for a rule calling on the Sydney Stipendiary Magistrates, as Superintendents of Police, to shew cause why a Criminal Information should not be filed against them, for neglecting to return to the Sheriff's office the Jury lists for the year 1834, as required to be prepared & perfected within the first week of January agreeably to the local ordinance 2 Wm. 4. No. 3. s. 6.  He contended that though the Magistrates might be liable to a pecuniary penalty for their neglect, as provided for in the local ordinance, yet that would not protect [p. 21] them from a proceeding by Information. Great mischief would arise to the administration of justice, for by their neglect, there would be no Jury list for the year 1834; & considerable doubts might arise whether the lists of 1833 would be available.  Beside that list was improperly & imperfectly, made up, by the introduction of the names of ticket of leave holders, who were returned as qualified to serve as Special Jurors.

Forbes C.J.  I am of opinion that a criminal information will not lie in this case.  By the 11th. Section of the Act a certain penalty is to be imposed upon all persons neglecting to perform any of the duties required of them to be performed in execution thereof.  The legislature therefore appears to have measured the punishment, for any neglect of duty in the Superintendents of Police, & a specific mode of proceeding is pointed [p. 22] out for any infraction of law. - This is not like a breach of any general duty imposed by law upon Magistrates, qua Magistrates; but a positive duty created by a specific local ordinance, with a pecuniary penalty attached for a breach of such duty.  Beyond that penalty you cannot go, where nothing but mere neglect is alleged, & no imputation of corrupt motive.

Dowling J.  I am of the same opinion.  You allege no malfeasance, but merely the neglect of a duty imposed by the local legislature.  Now the legislation itself has pointed out & limited the mode in which such neglect shall be punished, namely by a pecuniary penalty, as an adequate compensation for the civil inconvenience supposed to arise from the offence.  [p. 23]  If you had alleged wilfulness - or corruption, I should hold the pecuniary penalty not sufficient.  For where disobedience of the law, wilfully & designedly, involves in it also any degree of public mischief or private injury, there the offence would be against good conscience, & might involve the Justices in a predicament beyond the mere pecuniary penalty.

Burton J only inclined to the same opinion.  He admitted that if the ordinance defined the offence to be a wilful neglect, it would be necessary to allege & prove wilfulness; but he still thought a Criminal Information would lie, notwithstanding the pecuniary penalty.

R.R.[ 1]

Plunkett S.G. then desired to have the opinion of the Court [p. 24] whether the Jurors to serve during the Current year, might be taken from the old list of 1833.

Sed Per Curiam.  We cannot entertain that question at present.  It must be properly raised in a case before the Court.  But we will privately consider the matter. ...

[p. 25] At Chambers

At the rising of the Court today, the Judges conferred upon the question whether the Jury list for 1833 would serve for 1834, & adverting to the 12th Section of 2 Wm 4. No 3. they thought that though the lists were to be made out de anno in annum, yet they [p. 26] were of opinion that as it was enacted that the lists for the current year were to be the list of jurors until the list for the next year was transcribed, the list of the last year, would in the terms, though not in the spirit of the act, be sufficient until a fresh list was made out.  They however, thought it safest to recommended [sic] the correction of the defect, by applying to the local legislature.


Forbes C.J. to Governor Bourke, 1 March 1835

Source: Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651


[p. 374] It having been this day brought under the judicial notice of the Judges of the Supreme Court, that the necessary jury lists for the current year, have not been prepared for Sydney according to the provision of the Act of the Governor and Council 2. Will. 4. No 3, and a question having been made, whether juries impannelled out of the lists for the last years were legally qualified to serve on the tried of issues, in the present year, their Honors have felt that the subject is of sufficient importance to require the early consideration of your Excellency, and have requested me to address your excellency upon it.

I have the honor to state that by the provisions of the Act referred to[ 2] the Superintendents of Sydney are required to cause proper jury lists to be prepared for the currant year, in the first week of January in each year,[ 3] and the Petty Sessions are required to settle them in the third week of the same month, and it is expressly provided that[ 4] ``the lists so settled, shall continue in force for the current year. [pg 375] The Act further provides that the lists so settled shall be transmitted to the Sheriff, and shall be, by him, transcribed in a book to be called the ``Jurors Book": and that the said Jurors Book shall continue in force for the current year, and until the jury lists for the year next ensuing, shall be transcribed by the Sheriff into the juror's Book" -

Although it may be held, under the latter words of the Act of the Governor and Council, that the jurors' Book for the last year is in force until the new Jurors' Book is made up for the present year, yet it is a question upon which doubts have been raised, and of which different opinions may be entertained - We have therefore thought it of sufficient importance to require the interposition of the legislature, as well to remove all doubts as to provide regular juries for the current year -

Should your Excellency entertain a similar view of the subject, we have the honor to suggest the following head for a short bill, to be laid as early as may be practicable, before the Legislature Council.

1. The Act should recite that doubts had been entertained, and should declare the old jury lists and jurors Book to be, and to have been, in force until the new lists and new jurors book shall be respectively settled and transcribed.

2.  The times should be enlarged for preparing and settling the new lists for the current year, and transcribing them in the Jurors' book.

3. The new list and jurors' Book as soon as completed respectively, should take effect in like manner as they had been settled and transcribed at the time directed by the first mentioned Act of the Governor and Council.



[ 1] Rule Refused.

[ 2] Marginal note in manuscript: sect. 6.

[ 3] Marginal note in manuscript: sect. 8.

[ 4] Marginal note in manuscript: sect. 9.

Published by the Division of Law, Macquarie University