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

R. v. Elliot [1834] NSWSupC 11

Bushranging Act, renewal - repugnance to English law, Bushranging Act - attempted  murder of policeman - sentencing discretion - capital punishment

Supreme  Court of New South Wales

Forbes C.J., 18 February 1834

Source: Sydney Herald, 20 February 1834[1 ]

William Elliot was charged on an indictment of three counts - first, for shooting with an intent to murder; second count, to do some bodily harm to Corporal James McNally, of the Mounted Police, on the 10th day of December last; and the third count charged him with making resistance against his legal apprehension.

James McNally deposed that on the day above named, he was employed to carry despatches from Long Bottom to Parramatta; on his return he heard a rush amongst some Bush, on the road side, near the corner turning to the  Concord road; he leaped the fence, and saw a man making off with a musket in his hand; he called out to him to stop, but without effect; he fired, and the man fell over a tree; prisoner at the bar then jumped up and fired at witness, and wounded him severely in the neck; he was subsequently unhorsed, and a dreadful scuffle ensued, during which one of his pistols was broken, and he received many blows from the parties, whom he states to have been three in number, and all armed with muskets; the villians [sic] managed to get possession of his ammunition, in consequence of the brass on the shoulder giving way, the pouch fell to the ground; witness then retreated to his horse, which during the affray, had leaped the fence, and was standing in the road; on going away, prisoner presented his piece, which he had re-loaded, and making use of the most deadly threats to shoot him, snapped it two or three times; witness returned to Long Bottom, and from thence to Sydney, and was confined in the Hospital for eleven days, in consequence of his wound.

Two witnesses were called by the names of Bates and Mackintosh, who captured the prisoner in a hut; and they spoke of the determined resistance he made.  A pistol was found on him, which McNally swore was his, as it was marked 64, the number of his horse appointment.

The evidence adduced for the prosecution, was given in a clear and positive manner.

The learned Judge then summed up, explaining that the Colonial Act, 11th Geo. 4, No. 20, authorised the apprehension of all suspicious persons found with arms on their hands.  The prisoner at the bar was charged under the Statute with a capital offence.  It was for them to consider whether that charge had been substantiated by the evidence by witnesses for the prosecution.[ 2]

The Jury then retired for a short time, and returned a verdict of Guilty.

The Judge immediately passed sentence of death on the prisoner, and advised him to make his peace with an offended God, by contrition and sincere repentance, as there were no hopes of mercy for him in this world.[ 3]

A more hardened wretch, though only twenty one years of age, was never put to the bar.  On leaving the dock, he desired the constable to fetch him some peaches.  This is the same man who was convicted yesterday, with Smith, of highway robbery.[4 ]

 

Burton J., 1834

Burton to Bourke, 25 August 1834

Source: Historical Records of Australia, Series 1, Vol. 17, pp 524-533[5 ]

 

Sir,

I have now the honor to transmit to Your Excellency the ground of my opinion, contained in my letter to Your Excellency of the 19th instant, that certain provisions of the Local Act, 5 Wm. 4, No. 9, entitled,

``An Act to facilitate the Apprehension of transported Felons,

and Offenders illegally at large, and of persons found with

Arms, and suspected to be Robbers."

are repugnant to the Laws of England, which are as follows:--

1st.  By the 1st Section, it is enacted ``that it shall be lawful for any Constable or other person, whatsoever employed in or belonging to the Police of the said Colony, or for any free person whatever, having reasonable cause to suspect any person to be a transported Felon or Offender, unlawfully at large, immediately by himself or with the assistance of other persons, and without a Warrant, for such purpose to apprehend or cause to be apprehended every such suspected person, and him to take, or cause to be taken, before the nearest Justice of the Peace for examination as hereinafter provided."

By the 7th Section, it is enacted ``that all His Majesty's Subjects shall be liable to be called upon to aid and assist any Constable or other person in executing ad enforcing the several provisions thereof; And ever person, who shall be so called upon to aid and assist, and shall refuse or neglect so to do, shall be liable to a fine not exceeding Five pounds, to be recovered and levied in a summary manner, before any Justice of the Peace, over and above any other punishment to which such person shall be liable by Law."

By the 8th Section it is enacted ``that, if any Action or suit shall be brought against any Justice of the Peace, Constable, or other Person or Persons, for any Act or thing during the continuance of this Act, done in furtherance of the objects or in pursuance of the provisions of this Law or ordinance, the defendant or defendants in every such action or suit may plead the General Issue, and give this Act, and the special Matter in evidence at any trial to be had thereupon; and, if the Verdict shall be for the defendant or defendants in any such action or suit, or if the Plaintiff in any such action or suit shall be nonsuited, or discontinue his, her, or their Action or suit, after the defendant or defendants shall have appeared, or, if upon demurrer judgment shall be given against the Plaintiff or Plaintiffs, the defendant or defendants shall have treble Costs, and Shall have the likes remedy for the same, as any other defendant or defendants hath or have in any other case to recover costs by Law."

The Law of England[6 ] makes every man an officer to arrest a Traitor or Felon, and all persons of Competent Age, who are present where treason or felony is committed or a dangerous wound is given, are bound to apprehend the Offender on pain of being fined and imprisoned for their neglect; they are also bound to raise Hue and Cry, and pursue him; and every private person is bound to assist an officer demanding his help for the taking of a Felon suppressing an affray or apprehending the affrayers.

In such cases they are under the same protection of the Law as Officers of Justice;[ 7] if they are resisted and killed, it is Murder in the party resisting and Slaying; if the Offender flees and cannot be otherwise apprehended, and is killed, it is in them Justifiable Homicide, but in all these cases it is essential that a Felony should have been committed, or that a Hue and Cry has been raised.

Private persons are also permitted by Law (but not enjoined) to arrest without Warrant, upon sufficient causes of suspicion of Treason or Felony,[8 ] but in such cases if an innocent person has been arrested, and it be proved that no Treason or Felony has been committed, the party arresting or causing the arrest does so upon his own responsibility,[ 9] and, note being enjoined by Law, is no longer within the same protection of the Law, if resisted or slain, and if he should kill upon pursuit; and a party, injured by a wrongful arrest, under such circumstances has his remedy by action against him.[ 10]

Private Persons are also permitted by Law[ 11] to arrest others upon their own authority for the prevention of a Treason or Felony, or any act which would manifestly endanger the life of another, and may detain him until it may be reasonably presumed that he has changed his purpose.

As to arrests by Officers of Justice without Warrant, wherever an Arrest may be justified by a private person, in every such case it is a fortiori[ 12] justified by an Officer of Justice, or persons in their aid, and all the protection which the Law affords to private persons of course extends to them and the same immunity from Action; with this also, that an Officer is justified in arresting upon reasonable suspicion from information or charge of others (who continue however liable to a party aggrieved) and at the suit of the party arrested, notwithstanding that he is not only proved afterwards to be innocent, but also that no Felony has been committed.[ 13]

But neither Officers of Justice nor private persons are enjoined or permitted by the Law[ 14] of England to arrest another without Warrant upon mere suspicion of having committed a misdemeanour without violence; and, having no such authority, it follows that in the performance of a duty or authority; and, if a party so entitled to maintain an action for the injury sustained, and the offence mentioned in the 1st Section of the Local Act, vizt., that of ``transported Felons or Offenders" being unlawfully at large within this Colony, being a misdemeanour only, under the provisions of the Local Act 3rd Wm. IV, No. 3, it also follows that the 1st Section, which gives authority to Constables and private persons to arrest any person upon mere suspicion of being a transported felon or offender unlawfully at large, and the 7th Section whereby all person are enjoined to assist any Constable or other person in so doing, and the 8th Section whereby they are indemnified against the consequences of such Acts, the effect of which provisions is to change the respective liabilities of all the parties, if death should happen in making such arrest; and to take away the right of action of an innocent party aggrieved by a wrongful arrest, are repugnant to the Laws of England.

2ndly, By the 2nd Section of the Act, ``every suspected person, who shall be taken before any Justice of the Peace as aforesaid, shall be obliged to prove, to the reasonable satisfaction of such Justice, that he is not a felon or offender under sentence of transportation, upon which proof he shall be immediately discharged; and, in default of such proof, such Justice of the peace may cause such person to be detained in safe custody until it be proved as aforesaid whether he be under sentence or Free; and the proof of being free shall be upon the person alledging himself to be free, Provided always that such suspected person to be securely removed to Sydney, to be there examined and dealt with in like manner as aforesaid, and every person arrested and taken before a Justice as aforesaid, who shall be proved to be unlawfully at large, shall be dealt with according to Law."

It is a principle of the Common Law of England that every man is presumed to be Free, until he has been proved to have forfeited, or been deprived of his legal character of a Free man; and the Law casts upon the part, charging another with having committed an offence or seeking to deprive him of his liberty, the burthen of proving his guilt, and not upon the party accused, before any such proof has been given, to shew his innocence.  But the 2nd Section of the Act, without requiring any preliminary proof on the part of the accuser, casts upon every suspected person, who shall be taken before a Justice of the Peace, the obligation of proving to the reasonable satisfaction of such Justice that he is not a felon or offender under Sentence of transportation, and imposes imprisonment upon him until he is able so to do.  For which reasons, I am of opinion that it is repugnant to the Laws of England.

3rdly.  The offence ``of transported Felons or Offenders, having Fire Arms or other Weapons in their possession without permission of their Masters or of a Justice of the Peace, without being able to prove that they are intended for a lawful purpose," is, by the Local Act 3 Wm. IV, No. 3, Sec. 12, made Felony, and to be punished by transportation for life to a penal Settlement, and by the 3rd Section of the local Act, 5th Wm. IV, No. 9 (now under consideration) ``every person found with fire arms or other weapons in his possession, under circumstances affording a reasonable ground for suspecting that he has committed or intends to Commit a Robbery or Felony, is liable to be apprehended and dealt with in the manner provided by the first and second sections of the Act (already observed upon) respecting Persons suspected to be transported felons, or offenders unlawfully at large; and it is enacted that every person who shall be proved to be free, and shall not shew to the satisfaction of such Justice (that is the Justice before whom he shall be taken) that the fire-arms or other Weapons found in his possession were intended for a legal and innocent purpose, shall be committed upon a charge of misdemeanour, and being thereof lawfully convicted, before the Supreme Court or any Court of Quarter Sessions, shall be liable to be imprisoned, at the discretion of such Court, for any time not exceeding three Years; and in every such case, whether previously to the committal by the Justice of the Peace or upon trial before the Competent Court, the proof that such fire-Arms or other Weapons were intended for a legal or innocent purpose shall be upon the person in whose possession the same shall have been found."

So that, if a Free person shall be found with fire arms or other Weapons under circumstances of suspicion, vizt., ``that he had committed, or intends to Commit a robbery or Felony," and it being afterwards found upon investigation that he has not committed it, and that there has been no actual attempt made by him to commit it, He is still bound to prove that he is a free person in the manner prescribed in the 2nd Section (as to which I would again apply in this place the same remarks which have already been made thereon); having succeeded in so doing, it is nevertheless made a misdemeanour in him, punishable by three Years' imprisonment, ``if he shall not also shew to the satisfaction of the Justice," before whom he is taken, that the fire arms or Weapons were ``intended to be used for a legal and innocent purpose," and upon his trial the proof of legal or innocent intention is imposed upon him, the party arresting him, having wholly failed in proving any legal cause of detention, and he having proved his right to be discharged out of Custody, is to be put upon his trial for a misdemeanour and found guilty and imprisoned for three Years, if he do not prove his innocence.

The effect of which provisions, taken together with the 8th section above referred to and observed upon, is to subject a person, upon the mere suspicion of any other person to be dealt with as one whose guilt has been fully proved, and to take away the rights of action of an innocent party aggrieved under such circumstances, against the party who has injured him by a wrongful arrest.

Whereas, by the Common Law of England, no man is bound upon a charge against him in the first instance to prove his innocence; but on the contrary his accuser is bound to prove all the facts, which the Law makes necessary to constitute the offence charged; and that, in all cases, whether depending upon actual commission or guilty intention, and if an innocent party be injured by wrongful arrest, the Law gives him a remedy by Action against the party injuring him.  For which reasons, and also those above stated (the third Section of the Act being dependent in some of its provisions upon the 1st and 2nd Sections), I am of opinion that the provisions of the Third Section are repugnant to the Laws of England.

4thly.  By the fourth Section, it is ``enacted that it shall be lawful for any Constable or other person employed or belonging to the Police of the Colony, or for any free Person whatever, having reasonable cause for suspecting that any person may have fire-arms or other weapons concealed about him, to search or cause to be searched any such suspected person; and, in case of discovering any such fire-arms or other Weapons, to take him before the nearest Justice of the Peace to be dealt with in all respects, as hereinbefore is provided in reference to persons found with fire arms or other weapons in their possession."

The effect of which is that the mere suspicion that any person has in his possession Fire-arms, or other Weapons, unexposed and unattended by any circumstances of suspicion that he intends to use them illegally, renders him liable to be searched by any constable or officer of Police, whether Free or Convict, and by any other free person; and then being found to have fire-arms or other Weapons in his possession renders him liable to be apprehended by any person and taken before a Magistrate, and obliged to prove in the manner pointed out by the first and second Sections, that he is free (as to which I would again apply in this place the same remarks, which have already been made thereon); and that, after he has thus proved himself to be free, the mere possession of the fire-arms  or other Weapons, unexposed, unattended with any circumstances of a presumption that they are intended for an illegal or guilty purpose, and exposes him to be dealt with in all respects, and punished as is provided in the 3rd Section in reference to persons found with fire arms or other Weapons in their possession under circumstances of suspicion (as to which I would again apply in this place the observations which have been already made on that Section) and  further, the effect of these provisions taken together with the 8th Section is to take away from an innocent party Wrongfully arrested the privilege of personal protection and right of lawful resistance to an assault upon his person, to dispossess him of the protection of the Law, and to give it to a trespasser, and to deprive him of all right of action against a party, who has wrongfully assaulted his person and deprived him of his liberty;  Whereas by the Law of England,[15 ] it is lawful for His subjects to carry arms for their own personal protection, and the presumption of Law, in the absence of proof to the Contrary, is in favor of innocence.

For which reasons, and also for those thirdly above stated (inasmuch as the 4th Section is in some of its provisions made dependent upon the third), I am of opinion that the provisions of the 4th Secti9on are repugnant to the Laws of England.

5thly.  I am of opinion that the several provisions of the Act, which have been shewn as above to be repugnant to the general Laws of England, are also repugnant to the Stat. 9 Geo. IV, c. 83, upon the following grounds, Vizt., that it is by the 24th Section of that Act provided ``That all Laws and Statutes in force within the Realm of England, at the time of the passing of that Act (not being inconsistent therewith, or with any Charter or Letters Patent, or order in Council which may be made in pursuance thereof) ``Shall be applied in the administration of Justice in the Courts of New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said Colonies."

That those parts of the Laws of England, which are above stated, were in force in England at the time of the passing of that Act, and the object of the proposed Bill is to prevent their application in the administration of Justice in this Colony.

6thly.  It remains that I point out to Your Excellency more particularly the important consequence, which may be expected to result from the above deviations from the Law of England, in order that it may fully appear that they are of so considerable a character as not to be made, but upon the most urgent and unavoidable necessity. 

As to those parts of the act which give authority for the arrest of persons by Officers of Justice and private persons, and make it their duty to do so, under circumstances where such arrest is not authorized by the Law of England, as in the 1st, 3rd, 4th, and 7th Sections of the Local Act, it follows that officers of Justice and private persons so authorized may, in the exercise of that authority and performance of that duty, do all those things which persons having authority by the Law of England or whose duty it is to arrest offenders may do, but which done without the authority of the Law makes the Parties committing them trespassers, and liable as such to the legal consequences of their trespass; and thus the whole Law of England, as it relates to offences against the Persons of individuals, from that of assault to that of murder, becomes entirely reversed.

The Arrest or Search, which by the Law of England is unlawful, might be resisted by a person knowing himself to be and afterwards proved to be innocent; and, if in so doing it should unfortunately happen that the aggressor should be slain by him, the killing would bat the most be manslaughter, and in many cases Justifiable Homicide, which under the Local Act would, whether he were innocent or guilty, be Murder; on the other hand, if the death of the party attempted to be arrested should ensue in over-coming his resistance, that, which if done without authority would by the Law of England be murder, becomes in consequence of the authority, given by the Local Act, Justifiable Homicide.

In the same manner where the arrest is under the authority of the Law, as in cases where the Local Act gives an authority Contrary to the Law of England, if the party attempted to be arrested flees, pursuit may be made; and, if he cannot be otherwise taken and prevented from escaping, and be slain, it is Justifiable Homicide in the party killing him; but, if he kill any of his pursuers, it is murder; whereas, if the same acts shall be done under the Law of England, the legal consequence of it would be murder in the former case, and Justifiable Homicide or at the most manslaughter in the latter.

Doors may be lawfully broken open and parties resisting it slain, where he, whose arrest is under authority of the Law, betakes himself to his house, which are sacred, and the parties breaking them Guilty of Murder, if the party resisting be killed, where there is no such authority; on the other hand, where under the Local Law the party resisting such an aggression should kill another, he would be guilty of Murder, the same Act committed under the same circumstances would by the Law of England be Justifiable Homicide, or at the most manslaughter.

And in those offences against the persons of Individuals, where death does not ensue, the same Act which by the Local Law would if committed on a party proved to be innocent, be lawful, and the injured party precluded from legal redress and liable to treble costs if he should bring an action, if committed under similar circumstances under the Law of England would be unlawful, and the injured party entitled to redress in an action for damages.

These results, if happily none have yet occurred of a nature to attract public attention, are nevertheless such as a day may bring forth, and especially when it is considered how large a number of Free Emigrants are now Yearly adding themselves to the population of this Colony, bringing with them their English feelings, and a knowledge which the lowest possess of their personal rights by the Law of England; and that they arrive in this Colony ignorant of this particular Local Law, which is so widely different therefrom; when also it is considered how large a proportion of His Majesty's free subjects travel upon the roads of this Colony, having for lawful purposes fire-arms concealed about them, any one of whom may be the Local Law be lawfully searched and apprehended and taken before a magistrate by any free person, who has reasonable cause to allege ``the absence of any recorded case of abuse or injustice arising out of it," as a reason for continuing the Law.  But the fact that it may produce such consequences forms one of the grounds of my opinion against it.

It is a consequence also of the giving authority to private persons to arrest without Warrant upon mere suspicion, and indemnify them from all the consequences of so doing, that there is not that check preserved over their conduct, which may be a security that they will not commit abuses.

An Officer of Justice is amenable to his employers, and may (if not liable to an Action) at all events suffer the loss of his situation, if he act improperly although within the letter of the Law; but a private person, who is indemnified from the legal consequences of his Act, and is liable to no such loss, is far less worthy of confidence than the other; and an innocent person may be seriously injured by a wrongful imprisonment caused by a private Individual, transported felon or offender unlawfully at large, and detained in safe custody for several Weeks, and afterwards removed in similar custody to Sydney to be there examined, before he may be able to comply with the requisites of the 2nd Section in proving himself to be free to the satisfaction of the Justice before whom he may be taken.

Whether the circumstances stated in the preamble of the Local Act, Vizt., that ``it has been His Majesty's pleasure to appoint this Colony as a place to which felons and other offenders under sentence or order of transportation or banishment shall be conveyed for the purpose of being there employed on the Public Works, or assigned as Servants to private persons for their benefit, on which account it has been found necessary to establish efficient regulations of Police for the control of such transported felons and offenders, and to protect His Majesty's free subjects within the said Colony by laws suited to the actual state and condition thereof" are such as to justify on the ground of necessity alone so wide a departure from the Law of England, will I apprehend depend upon the question whether those objects could be attained by a less sacrifice of the fundamental principles of the Law.

It is true that the Law of England does not contemplate the existence within the British Dominions of a Class of Persons similarly circumstanced to the Convict population of this Colony; but several of its provisions may be made strictly applicable to such a state, and where these are wanting, others may be framed preserving the spirit, and without departing from fundamental and constitutional principles; thus, although it be admitted to be necessary that any person should be liable to be arrested without warrant by any Constable or other peace Officer, having reasonable cause to suspect such person to be a transported felon or offender unlawfully at large, and in so far as the provisions of the 1st and 8th Sections of the Local Act legalize such an arrest, and protect the Officer of Justice making it from all the consequences which might happen upon attempting it, or might ensue from the arrest proving afterwards to be wrongful, and although it should be admitted to be necessary that a private person should be authorised to arrest without Warrant ``any transported felon or offender" (preserving by those terms to the party aggrieved his remedy against the Aggressor, if he shall prove to be free), both of which, although not within the letter of the Law of England, might be legalized without invading its spirit; yet it does not follow that the necessity exists for authorising a private person to do such an act upon bare suspicion that a party is a transported felon or offender, and for protecting him from the legal consequences of his Act, when proved to be wrongful, to the prejudice of an innocent party who has suffered by it; and before the latter is deprived of his legal rights in such a case, the necessity for doing so ought to be shown.

So also as to a person who has been arrested on suspicion of being a transported felon or offender, although it be admitted to be necessary to detain such person in custody for a sufficient and reasonable time, in order to ascertain the truth of that fact, and that might be legalized without any invasion of the spirit of the Law of England, yet that being done and the means of proving him to such being already prescribed by the local Act of 3rd W. IVth, Sec. 35, and very simple and in the power of any person to obtain, vizt., ``By production of the Indent, or an Extract from it, under which the party arrived in this Colony, accompanied by proof of his being reputed to be and dealt with as that person," the necessity ought to be made apparent for relieving his accuser from that duty, and imposing upon him the burthen of proving himself to be free to the satisfaction of the Justice and detaining him in custody until he does so, and depriving him of his remedy by law, if afterwards shewn to be an innocent person wrongfully arrested.

And further although it be admitted to be necessary to apprehend and correct in a summary manner rogues and vagabonds, whether free or bond, Yet when the English Vagrant Act, 3 Geo. IV, c. 40, includes in its ample provisions not only all those suspicious persons, who are mentioned in the Local Act, vizt., all such ``who shall be apprehended having in possession any picklock, key, crow, jack, bit or other implement with intent feloniously to break and enter into any dwelling house, ware-house, Coach-house, Stable, or out-building, or having in possession any gun, pistol, hanger, cutlass, bludgeon, or other offensive Weapon, with intent to assault any person or persons, or commit any other illegal Act," and when the provisions of the English Vagrant Act include many other descriptions of persons, who might with equal propriety be the objects of summary apprehension and Correction in this Colony, which have not been, but which might be applied without any departure from either the letter or spirit of the Law of England, the necessity ought to be shewn for imposing upon the party charged the burthen of proving his innocence, and of departing from a fundamental principle of the English Law, that his accuser is bond to prove the facts which constitute the charge against him.

Lastly, if it be necessary to prevent any person from carrying fire-arms or other Weapons unexposed, and to subject any person to be searched upon bare suspicion of having such arms or weapons, concealed and unattended by any other circumstances of suspicion and to be apprehended and taken before a Justice and detained in Custody, until he prove himself to be free, and further proves that the fire-arms, or other weapons were intended to be used for a legal and innocent purpose, and to deprive him of his remedy by action if he be afterwards found to be altogether innocent, the necessity ought to appear for any further departure from the principles of the Law of England, than to allow such a search upon mere suspicion to be by any Officer of Justice, whose person or badge of office being known may protect ignorant person from making resistance to his authority.

The law in question is nearly similar in its terms, excepting in the provisions of the 5th Section, to the local Act 11th Geo. IV, local Act, 2 Wm. IV, No. 9, at both which times I had not the honor of a seat upon the Bench of this Colony; but, referring to the preamble of the first mentioned Act, and to the history of the period when it was passed, it appears evidently to have been framed upon a sudden exigency, and was limited to the shortest duration, which as I am informed, His Majesty's instructions allow for local ordinances passed in this Colony; it is expressly declared that it was only intended to be temporary, under which circumstances I presume that the then Judges of the Supreme Court, feeling themselves bound by the recited necessity of the case which was then stated upon the authority of the Legislative Council to exist, made no representation against it, although I have authority for saying they were of opinion that it was in all its provisions repugnant to the Laws of England.

The case is however very different when the Act is proposed to be a second time prolonged, and thus assures the appearance and character of a permanent law, although its recital still profess a temporary object; since there can be no period of time anticipated, so long as there remains a Convict population within the Colony, when, if not now, a period at which the Legislative Council in their preamble to the present Act no longer state the same necessity or state of the Colony to exist, the character of the act may be more assimilated to the Laws of England.

I would also add that, since the passing of the Act 11th Geo, IV, No. 10, the political and moral character of the people of the Colony must necessarily have undergone considerable changes from the arrival in it of free Emigrants to the number (according to official returns laid by Your Excellency before the Council) during the Years 1830, 1831, 1832, and 1833 of 5,457 persons, and in consequence of the increase of the free population born within the Colony during those Years.  Referring to the last census taken on the 2nd September, 1833, and laid by Your Excellency before the Council, it appears that at that period the total number of free persons within the Colony was 36,318, which number has been since augmented by fresh arrivals; these latter are so considerable as reasonably to claim for them that the Laws of England shall not be departed from beyond the necessity of the case, arising from the difference of circumstances between the two Countries.

And, notwithstanding that I acknowledge the elements of which the general body of Society in New South Wales is composed to be such as to require the most prompt and vigorous laws for apprehending and bringing offenders to Justice, and for the protection of those concerned in doing so, Yet if that can be done, as I am of opinion it may, upon principles which are not repugnant to the Constitutional Laws of England, the necessity does not exist for departing from them.

I have, &c.,

W. W. Burton.

A true Copy.                                                                                        

 

Forbes C.J., 1834

Source: Forbes Papers, Mitchell Library, A 121 (CY 545), pp 947-56[16 ]

 

The following is a Summary of the remarks of Mr Forbes, Chief Justice of the Supreme Court, upon the representations of Mr Justice Burton, against the Act of the Governor and Council of New South Wales, commonly called the Bushrangers Act as delivered by him before the Legislative Council.

We are called upon to reconsider the Law which has lately passed the Legislative Council, in consequence of the representations made by Mr Justice Burton, in conformity with the mode of proceeding pointed out by the 22C Section of the New South Wales Act (9 Geo IV C 80). His Honor is of opinion that the local act of the Governor and Council is repugnant to the Laws of England. The Act of Parliament does not require the Judge who may consider the proposed Law as consistent with the Laws of England, to express his assent to its legality - but it may be fairly assumed from the silence of the two other Judges of the Supreme Court, that they do not entertain the same opinion on the proposed law as Mr Justice Burton. I may be permitted to say, in this place, that Mr Justice Dowling concurs with me in opinion, that under the circumstances of the Colony, as set forth in the preamble of the Act of the Governor and Council, and with the Judicial knowledge we have, that New South Wales is appointed by His Majesty, with the Sanction of Parliament, as a place for the reception and safe keeping of transported felons, the local Act is not repugnant to the Laws of England, according to the legal meaning of the term, and it appears to us to have been intended to be used in the Act of Parliament. It is in this particular only, that we differ from our respected colleague. If by the word "repugnant", be intended every actual difference between any two Laws, then it is admitted that the local Act of the Governor and Council is different from any existing law in England. But I am of opinion that this is putting much too limited a meaning upon the word, and restraining it within much narrower bounds than were contemplated by Parliament. The word itself is not new in  a legal sense. Sir William Blackstone in speaking of the English Plantations says their constitutions depend upon the perspective Commissions issued by the Crown to the Governors, under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the Laws of England - Com No 1 page 109. The clause of the New South Wales Act is in strict keeping with the constitutional Laws of the Colonies, as it is laid down by Judge Blackstone, and I think it is going too far to hold, that Parliament in applying a word of established use and signification in other Colonies, to the constitution of the Legislature of this Colony, must be presumed to have intended to apply it in sense in which it had been perceived in the other Colonies, and recognized by His Majesty in Council. By referring to the numerous Laws which have been passed in the American Colonies, particularly such as relate to Slavery, and the discipline of Slaves, it will be found impossible to escape the conclusion, either that such Laws are repugnant to the letter of the English Law, or that the term is received by the Colonial Courts, and by the King in Council (whose assent is expressly or impliedly given to every Colonial enactment, before it becomes a complete Law) under a different acceptation from that contained in the representations of the Learned Judge, which are now before the Council. Forming my opinion upon what appears to have been the usual interpretation of the word repugnant, as put upon it by the Legislatures and the Courts of the elder Colonies, and the Crown Lawyers to whom their enactments have been submitted, and applying my own mind to discover what I think the Imperial Parliament must have intended by the use of it, in the Act which creates a Legislative power to meet and provide for the unforeseen exigencies and wants of this remote Colony, I conceive that the word was intended to convey a meaning to this effect - that in making laws "for the Peace, welfare and good Government of the Colony", the Governor and Council shall take into their considerations the circumstances of the particular matter which requires Legislative provision, and make such a Law as may remedy any particular mischief, consistently with the general principles of the laws of England. I am aware how difficult it is to lay down an abstract rule for the interpretation of Acts of Parliament - and that the meaning I have affixed to the particular clause referred to, is open to objection. I would be understood however to confine it to the class of legal enactments properly remedial, because the Act of the Governor and Council is a remedial Act or Ordinance. In the particular local law now under consideration, the mischief which is intended to be remedied is recited - it presents a state of Society so widely differing from that of the parent State, as obviously to Enquire a corresponding difference in the Law. The facts set out by the Local Legislature we are bound to assume to be true - and the question is, whether the Laws of England for restraining and preventing the Commission of Crime, by persons in any degree resembling in condition the transported Convicts in New South Wales, are sufficient. As matter of fact, the Legislature have declared that they are not sufficient - and every man who has local experience of the great number of Convicts who are always at large, and have no other mode of subsistence than such as may be acquired by plunder - of the facilities to escape and concealment, which are supplied by the uncleared forests and trackless retreats of the Colony - of the previous habits and reckless characters of the Convicts - and above all, of the frequency and malignancy of the Crimes which are sought to be prevented and repressed - must concur with the Legislature in thinking, that the actual state of England presents no parallel with the actual state of New South Wales; and that the existing Laws of England are not calculated for the existing condition of this Colony, and are not sufficient for the protection of the Inhabitants. This is the particular mischief which was required to be remedied. The the question arises - are the Governor and Council clothed with sufficient power to meet the actual state of the Colony, and to pass a coercive law, sufficient for the protection of the Inhabitants assuming my interpretation of the powers delegated to them by Parliament, and of the true meaning of the term - repugnant, to be correct, I think that they do possess the power they have exercised and that the law they have passed does not go beyond what the principles of their constitution will allow; and what the British Parliament, prescribing a similar limitation upon their own power, would have passed, imperfect consistency with the general Laws of England, under a similar state of things, in any part of the Empire.

It is not necessary for me, on this occasion, to follow the several arguments of Mr Justice Burton, beyond the preliminary question of repugnancy. If the law itself be not repugnant to the Laws of England, under the state of facts recited in the preamble, then it is competent to the Governor and Council, in passing the Law for the apprehension of Convicts unlawfully at large, and the suppression of robbery and house breaking, to protect the persons enforcing such law, against vexatious proceedings, whenever they have acted bona fide, and upon reasonable grounds of suspicion. I apprehend it to be a clear principle, that whenever the law authorizes one man to apprehend another, for a particular offence, that he may do so wherever the law authorizes one man to apprehend another, for a particular offence, that he may do so wherever  reasonable ground of suspicion appears that the party apprehended has committed such an offence, although it should afterwards turn out to be unfounded. I am not aware of any distinction between a Constable and any other person, where the Law gives equal authority to both to apprehend. The whole of the objections of His Honor upon this point, are as applicable to the vagrant Laws of England, as they are to the Ordinance of the Governor and Council. The present vagrant Act of Parliament (3cGeo IVC 40) which embodies and consolidates the provisions of the previous Acts, specifies certain cases of vagrancy, such as usually occur in England - it imposes upon the persons accused, the obligation of giving "a satisfactory" or "a good account of themselves", (as it is to be presumed) to the person making the enquiry or apprehending such persons - it authorizes "any person whatsoever, without any warrant for such purpose", to be apprehend any other person offending against that Act -and it enables the person who may be sued for anything done under the Act, to plead the General Issue, and give the special matter in evidence in his defence - and if such person shall be exculpated, it entitles him, in the discretion of the Court, to treble Costs. The local Act does nothing more - the details differ in some particulars from the Vagrant Act, but there is no difference in principle - one is adapted to the state of facts in another Country- the English Act  provides a remedy co-extensive of the mischief in England - the local Act provides for a more extensive local mischief. Taking into consideration the actual state of Society in England, and the actual condition of the people of this Colony, and comparing with them the Vagrant Laws of the former, and the Law for apprehending Convicts unlawfully at large; and suppressing Highway Robbery in the latter, and also bearing in mind that the end and object of all Laws is the protection of Society, I don't think that the local ordinance has gone beyond the principle of the Imperial Act, or that the Governor and Council have, in any degree, exceeded the just limits of their power.

(Signed) Francis Forbes - Chief Justice of the Supreme Court.

 

Notes

[1 ] See also Sydney Gazette, 20 February 1834; Australian, 21 February 1834.  For another apparent prosecution under the Bushranging Act, see R. v. Maroon and Inglis, Sydney Gazette, 12 May 1835.

[2 ] This was apparently a reference to the Bushranging Act (1830) 11 Geo. 4 No. 10.  Section 3 of that Act provided that when a person was found on the roads or elsewhere with firearms affording suspicion of intention of robbery, that person could be apprehended and taken before a magistrate.  The onus was on the arrested person to disprove the intention.  The Act was in force only two years, but was regularly re-enacted.  On the 1832 re-enactment, see R. v. Ryan, Troy and others, 1832.  The Australian, 9 March 1832, opposed that renewal.

The Act was renewed twice in 1834 (see 5 Wm 4 No. 9), but Burton J. stated that the Act was repugnant to the laws of England.  His protest and the reply of Forbes C.J. are reproduced below.

The Australian, 3 June 1834 recorded Governor Bourke's argument in 1834 for the second renewal:

``I have lately had occasion to call your attention to the Colonial Act of the Governor and Council (11 Geo. IV. No. 10), for suppressing Robbery and Housebreaking.  The Council then considered the necessity for renewing the Act to be clearly established by the Reports from the Magistracy laid upon your Table, but extended the duration to the 31st August only, with the view in the mean time of maturely weighing whether any, and what alterations might be effected in its enactments, to remove as far as should be found practicable, without defeating the purpose of the law, the objection made to it by the Judges on account of its repugnancy to the law of England.  A Bill now to be laid before you modifying some of the provisions of the 11 Geo. IV. No. 10, and asserting the necessity for its enactment in terms more suited to the present comparitively [sic] tranquil state of the Colony than those which are found in the preamble of the Act now in force.  Whilst it must be admitted however, that the necessity of the case can alone justify the Council in passing a law at variance with the law of England, it should be borne in mind that the state of society in this Colony, so widely different from that of the Mother Country, does not permit a perfect similarity in its laws to be at all times preserved.  If it be alleged that the provisions of the Colonial Act against Bushranging are altogether dissimilar to the law of England, it must be also allowed that there have been periods at which by the repeal of the Habeas Corpus Act and by other restrictive measures, the state of the law in England has varied essentially from its ordinary free character.  It cannot then be said to be repugnant to the English Constitution to enact laws restricting the usual liberty of the subject, when the public safety demands the innovation.  In the present mixed state of the population of New South Wales, it is required to give ample protection to His Majesty's free subjects, although in order to afford this protection it is at the same time necessary to subject them to a restraint unknown to the ordinary administration of English law.  This necessity is now declared to exist, and will exist in some degree or other as long as the population of the Colony continues to be of this mixed description.  The Bill  now to be presented varies little from that which it is intended to replace.  I recommend its being sent to a sub-committee for report."

The Bill was sent to a subcommittee of the Legislative Council, which unanimously recommended its renewal after considering a report from the magistrates.  See Bourke to Stanley, 15 September 1834, Historical Records of Australia, Series 1, Vol. 17, pp 520-521.

The Australian continued its opposition to the legislation: Australian, 6 June 1834, and on the legislative history, see Australian 11 April, 17 June and 4 and 8 July 1834.  On the background to the bushranging legislation, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, ch. 39.

[3 ] According to the Sydney Gazette, 20 February 1834, Forbes C.J. stated: ``Prisoner at the bar - you have been convicted this day of a determined attempt to murder, by shooting at a policeman, who was endeavouring, in the exercise of his duty, to apprehend you.  You were also convicted yesterday before me, of a highway robbery, committed under violent and daring circumstances.  This is therefore the second capital offence of which you have been convicted within these two days.  Young as you appear to be, it is necessary for the public welfare, that your wicked career should be stopped, and I have therefore the painful duty to discharge, of pronouncing upon you, the sentence of an ignominious death.  It becomes my task also, to warn you, that the determined nature of your crimes, does not warrant me in holding out to you the most remote prospect of clemency from the government.  Let me entreat you therefore, not to employ the few remaining days of your existence, in careless, and hardened indifference of your approaching fate, but earnestly to seek the welfare of your immortal soul, by due penitence to that offended God, before whom you must shortly appear.  His Honor then passed sentence of death upon the prisoner in the usual manner."

The Australian, 21 February 1834 added a further detail: ``While prisoner was being removed from the dock, he with utmost nonchalance handed sixpence to a constable, and desired him to purchase 6d. of peaches, and to let them be good!"

[4 ] See R. v. Elliot and Smith, 1834.  Elliot was hanged on 6 March 1834: Sydney Gazette, 6 and 8 March 1834; Australian, 7 March 1834.  He tried to appear ``game" and declared that the policeman had shot at him first.

[5 ] Under 9 Geo. 4 c. 83, s. 22, the legislation of the colony's Legislative Council was submitted to the judges of the Supreme Court.  Any of them could declare the Act repugnant to English law, but if they did, the Legislative Council could adhere to the legislation; then it went into effect until Royal pleasure could be notified.

Lord Glenelg later told Governor Bourke that his view on both this and the usury Act agreed with that of Forbes C.J. and Dowling J., rather than Burton J.: Glenelg to Bourke, 5 September 1835, Historical Records of Australia, Series 1, Vol. 18, pp 94-95. (Additional information taken from a Macquarie University student essay by Joshua Barr; copy with author.)

Once again, as in MacDonald v. Levy, 1833, Burton J. was more concerned with adherence to strict English law than were his brother judges. For the views of Alfred Stephen J, click here.

[6 ] Marginal note. - Hawk. P.C Bk. 2, Cap. 12.

[7 ] Marginal note. - Foster, ut Supra, Sec. 15.

[8 ] Marginal note. - Hawk. P. C. Cap. 12, from Sec. 7 to 18.

[9 ] Marginal note. -- Foster, ut Supra, Sec. 15.

[10 ] Marginal note. -- Smith v. Payne and others, Douglas Rep. 359.

[11 ] Marginal note. -- Stonehouse v. Elliott, 3 Term, Rep. 315; White vs. Taylor and Simcox, 4 Espinasses, Rep. 80; Hedges vs. Chapman, 8 Binghams, P. 253; Hawk, P.C. Bk. 2, Cap. 12, Sec. 19; Foster, Cro. Law, Disc. 2, Sec. 4.

[12 ] Marginal Note. -- Hawk, P. C. Bk. 2, Cap. 13, Foster; Cro. Law Disc. 2. S. 1 to 3.

[13 ] Marginal Note. - Smith v. Payne and other, cases ut  Supra.; Hobbs v. Branscomb, Drinkwater and others, 3 Camp., rep. 420.

[14 ] Marginal Note. - Hawk. P.C. Bk. 2, Cap. 12 and 13; Foster, Cro. Law, Disc. 2.

[15 ] Marginal Note. - Nat. 1 W. and M., Sess. 2, Cap. 2.

[16 ] This is also reproduced in Historical Records of Australia, Series 1, Vol. 17, pp 533-536.

Published by the Division of Law, Macquarie University