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

R. v. Police Magistrates of Sydney [1834] NSWSupC 17

jury trial - magistrates, action against - supervision of inferior courts

Supreme Court of New South Wales

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

Source: Sydney Gazette, 4 March 1834[ 1]

The Solicitor-General moved for a rule to shew cause why a criminal information should not be filed against the three Police Magistrates of Sydney for neglecting to prepare the jury lists for the present year.  The learned gentleman read his affidavit in support of the motion, which went to shew that he was employed to conduct several cases for the Crown during the present term, as well as private suits; in the management of which, it would become necessary to make application for special juries to try the issues, but which, from the neglect of the Magistrates could not be had.  On application at the Sheriff's office, he learned, that it was proposed to adopt the jury list of 1833, as that of the present year.  Against this arrangement, however, he had to raise an objection, as it was a circumstance within his knowledge that in the lists for the previous year, were included the names of the Attorney-general, and other gentlemen of the bar, besides members of the Council, who were not liable to be returned on the pannel [sic].  The names of other persons also, who were duly qualified as special jurors were entirely omitted, so that if the Court should decide upon receiving the list of 1833, it would subject the business of the Court to great inconvenience, by reason of its numerous errors.  The learned gentleman contended, that he had a right to apply for a criminal information, by giving up his right of a civil action.  It was with great pain he made this application, but he did not see any other fit course left for him to pursue.

The Chief Justice, as at present advised, must refuse the application.  It was competent for the law officers of the Crown to prosecute for the penalty provided against the neglect of the justices, in the Act of the local legislature, and he could see no reason for granting a criminal information in the present instance.  He was of opinion, that such a mode of proceeding could not be entertained.

Mr. Justice Dowling expressed himself of the same opinion.

Mr. Justice Burton dissented from the judgment of his learned brethren, inasmuch as the neglect referred to in the Act, was stated as wilful, and he was inclined to think, that under those circumstances, a criminal information would be.  But at the same time he was disposed to believe that it would be more prudent to sue for the penalty.

Motion refused.

The Court suggested, that the gentlemen of the Bar would perhaps consider the case, as to whether it might be raised on any other question.  If coming before them in any legal shape, their Honors would apply to the government for the proper machinery of the Court, otherwise it might become placed in the same predicament which occurred some years since, when the Court granted motions of Counsel for trial before jurors, and no jury could afterwards be found to try the issues.



[1 ] See also Australian, 3 March 1834.  For commentary, see Australian, 3 and 7 March 1834, and see 10 March 1834.

Published by the Division of Law, Macquarie University