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

In re Scott [1836] NSWSupC 1

magistrate, rights of - law reporting, Australian

Supreme Court of New South Wales

In banco, Forbes C.J. and Burton J., 1 February 1836

Source: Sydney Herald, 4 February 1836[ 1]

His Honor the Chief Justice said that he understood that a gentleman who was a Magistrate of the Territory, wished to offer some observations to the Court relative to some of the Officers of the Court, which the Court was now ready to hear.

A. W. Scott, Esquire, J. P., rose and addressed the Court - ``I have attended this day to complain of an injustice done to my character as a Magistrate, by His Majesty's Attorney General and Crown Solicitor, on the 10th November last, in this Court, whereby His Honor the Chief Justice was induced to pass a severe but unmerited censure upon me, and the Public led, from such high authority, to believe the statement as correct.  I trust I shall be permitted to lay the matter before you, and I hope to do it in such a clear manner as will prevent unnecessary discussion, and protect the Magistracy in future from being subjected to such unjust and uncourteous reproofs.  On the 6th November last, our Bench received a letter from the Crown Solicitor, which with your permission, I shall now read.

`Sirs, - I do myself the Honor to request that the prisoner named in the margin, (John Snell), may be forthwith sent to Sydney gaol, for trial at these criminal sessions, as the witnesses for the Crown are in attendance.  I have likewise to desire that a report may be made to this office, why the prisoner was detained at Newcastle, having been committed for trial at Sydney.  I have the honor to be, &c., (signed) John Fisher, Crown Solicitor.'

Your Honors will perceive, that by the first paragraph we are requested to forward a prisoner from the gaol, confined for felony, and which as Magistrates, we had no power whatever of doing; and it likewise implies blame, as the witnesses were in attendance.  The second paragraph desires us to make a report why the prisoner was unnecessarily detained.  I do not conceive that I am to be ordered by the Crown Solicitor.  I will now give to Your Honors our reply.

`Sir, - We have the honor to acknowledge the receipt of your letter of yesterday's date, respecting the transmission to Sydney of the prisoner (John Snell) named in the margin, and we beg to say we have no knowledge whatever of the circumstances alluded to, and to add, that any communication addressed to the Sheriff, would have elicited the required information.

`We do not conceive it is incumbent on us to make reports at the desire of the Crown Solicitor.  We have the honor to be, &c, &c (signed) George Brooks, J. P., A. W. Scott, J. P.'

Your Honors will remark that we did make such enquiries as the time would allow, and could ascertain nothing satisfactory, and then we suggested that the Sheriff who was not only the proper person, but actually on the spot, could have given every information - and in conclusion, we simply repeat the very word used by the Crown Solicitor, and so much complained of by him.  Having now explained to Your Honors the ground of complaint against us, I shall read the charge prefered against us by His Majesty's Attorney General and Crown Solicitor, as reported in the Australian.

``tuesday. - The Attorney General complained to the Court of the conduct of two Magistrates at Newcastle, viz., - Dr. Brooks, and A. W. Scott, Esq., in writing an impertinent letter to the Crown Solicitor, who had merely applied to them for information on the subject of a prisoner who had been committed for trial, and who it was discovered after the witnesses had been subpoenaed, and were actually in attendance in Sydney, was still confined in Newcastle gaol.  The learned Attorney read an extract from the letter, which was to the effect that they (the Magistrates) did not consider themselves called upon to furnish reports at the desire of the Crown Solicitor; he also observed that it was the duty of the Magistrates to furnish information to the law officers of the Crown whenever they were called upon, for the purpose of furthering the public business and justice of the Country, and that it was fortunate for the Magistrates that the letter in question had not been written to him instead of the Crown Solicitor."

``Mr. Fisher explained to the Court that he had forwarded a courteous letter to the Magistrates, merely asking for information where a prisoner who had been committed was confined, and in return he had received the letter alluded to, which, to say the least of it, was excessively uncourteous."

``The Chief Justice stated, that in England, by the Act of Parliament, the committing Magistrates were bound to forward the depositions and recognizances of the Crown witnesses to the Clerk of the Peace, if a party was committed for trial at the Quarter Sessions, or to the proper officer of the Court (the Clerk of the Arraigns) in which the trial was to be heard, if committed to be tired at the Assizes; by these officers the bills were prepared and laid before the Grand Jury, who either found or rejected them.  In this Colony the Attorney General stood in the place of a Grand Jury - all offences were prosecuted by information exhibited by him, and he was the proper officer to whom all proceedings should be sent.  It was necessary for this officer at times to communicate with the Magistrates, not to obtain information for his own private purpose, but for the purpose of obtaining the necessary information for the furthering the public justice of the Country; Magistrates were therefore bound (he apprehended) to give every information in their power to the law officers of the Crown, for this legitimate purpose, and if they withheld or refused to give it, an application must then be made tot he Executive Government, through the colonial Secretary, to remedy the evil by the appointment of other persons who would do that which was legally imposed on them.

From the extracts it evidently appears that His Honor the Chief Justice and the Attorney General were under the impression that we were the committing Magistrates, and that we had failed in doing our duty as such, and in refusing to give necessary information, and I know such likewise is the feeling on the part of the public.  I shall now perhaps surprise Your Honors when I state, and that without the slightest fear of contradiction, that the Crown Solicitor well knew previously to the writing of his letter, that we were not the committing Magistrates, that we had nothing to do with this transaction, and that he was purposely giving our Bench unnecessary trouble.  This can be shewn, not only by the every depositions by means of which the witnesses were summoned, and in actual attendance.  For, is not the Magistrate's name and residence stated therein? but by Mr. Fisher's own admission to two gentlemen, that he had written to our Bench for the purpose of avoiding a disagreeable communication to the committing Magistrate.

I therefore conceive, if the witnesses were summoned, the Crown put to unnecessary expense, and justice impeded, it is distinctly attributable to either His Majesty's Attorney General or Crown Solicitor.  Surely the duty of the Magistrate is to commit for trial, and not to dictate the place of trial!  It is not for him to direct the Sheriff where the criminal is to be taken!  This is the part of the law officers, and if neglected, the onus lies with them.  I have to call the serious attention of Your Honors to a similar case of mismanagement where perhaps - The Chief Justice said the Court could not go into any other case.

As it is deemed improper for me to proceed, I shall conclude at once, trusting I have already explained sufficiently not only to justify my own Magisterial proceedings, but to obtain from Your Honors an opinion that our Bench acted with propriety, and that our letter was misconstrued.

The Attorney-General said, that he had not applied the term ``impertinent" to the reply from the Magistrates, and if it was so stated, it was false.  He had termed the reply uncourteous, and would now repeat, that he still considered it uncourteous.  He had applied to the Bench for information connected with his office, which it was necessary he should receive, and his duty to require for the administration of Justice, and if he was not supported by the Magistrates in the arduous duties he had to perform, as Attorney General, it was impossible that justice could be done.  Here was a man who had been committed for trial, the indictment prepared, the witnesses in attendance, but who was not forwarded, and he had a right to inquire the cause of his being kept back, and it was the duty of the Magistrates to give him the information he required.  But he must also state that neither Mr. Scots' nor Mr. Brooks' names were mentioned in the complaint made tot he Court, although they appeared in the Australian newspaper, which might be in the recollection of His Honor, the Chief Justice.  That report, however, was quite incorrect.

Mr. Scott rose and said, I regret the Attorney General should have taken up so much time of the Court, as he evidently still appears to think we were the committing Magistrates.

The Chief-Justice interrupted, and

Mr. Fisher, as he had been so particularly alluded to, felt bound to state, that he had no idea of offering insult to the Magistrates in the letter he had written; he must observe, however, that the letter was not addressed either to Mr. Scott or Mr. Brooks, but to the Bench; and it could not be supposed that he should wish to insult gentlemen with whom he was not acquainted, even if the letter would bear such a construction.  But he would say, that he did not believe any gentlemen of education would have construed the letter as Messrs. Scott and Brooks had done, nor did he think any other two gentlemen in the Colony would take offence at such a letter.  He had written it in the Court in the hurry of business and without the most remote idea of its being offensive in any way, and he thought it was not a letter that required so uncourteous an answer as the one returned to it.

Mr. Scott said, that the Crown-Solicitor ought to have known that the letter was improper to be addressed to him, who had nothing to do with the case.

His Honor the Chief Justice said, that so far as his recollection of a case which he never expected to hear of again, went, he was certain that the term impertinent had not been used, neither had any names been mentioned.  The term used by the Attorney General was ``the committing Magistrate."  On the complaint of the Attorney-General on a former occasion in the remarks made, he had premised that it was a case in which the Court could not adjucate.  The question of the duties of Magistrates having arisen, he had stated his opinion on the subject, and in that point of view only had he entertained the complaint.  It now appeared that an improper report had gone forth to the world, and the Court felt bound to afford the Magistrates an opportunity of explaining the case.  It appeared that a very inaccurate report had been published in one of the Journals, which had ended to convey wrong impressions of the facts as they occurred before the Court.  He could not help noticing an expression which had fallen from Mr. Scott in his explanation, that the Court had passed severe and unmerited censure on him.  The report must be very incorrect, if it put into the lips of the Court any censure on Mr. Scott or Mr. Brooks whose names had not appeared to the Court, nor was it the practice of the Court to pass censure on any one without giving an opportunity of explanation, and more particularly, when the party was absent.  His Honor had disclaimed at the time that the Court had jurisdiction in the case, and it had simply stated the duties of Magistrates generally, without reference to any particular Magistrate.  But, if a case in which the Court had jurisdiction came properly before the Court,, which required reproof, he hoped that he should be found firm enough to apply it.  On view of the facts it did appear to the Court that the letter from the Crown Solicitor was improperly addressed, neither of the Gentlemen, under the circumstances, had considered the latter part of the Crown Solicitor's letter as uncourteous, and the latter part of the reply, which was considered by the Attorney-General as uncourteous, was evidently written under such a supposition.  Taking the Crown Solicitor's denial of any intention on his part of being uncorteous [sic] towards the magistrates, it would have been more desirable had an explanation taken place out of Court.

Mr. Justice Burton said, that as Mr. Scott had appeared personally, the Court had felt it an act of justice to allow him an opportunity of removing any erroneous impression that might have gone abroad from the proceedings that had taken place in the Court, and after the very satisfactory explanation of Mr. Scott, he (Mr. Burton) considered that he was entitled to an amende for the error which had occurred by the Crown Solicitor's letter, which, as Mr. Scott was not the committing Magistrate, and knew nothing of the matter referred to in the letter, was improper.  The language of that letter was very authoritative to say the lest of it, particularly when addressed to Magistrates who could not legally have complied with the desire, and His Honor was not at all surprised at the letter from the Magistrates to the Crown Solicitor, looking at the first uncourteous letter.  He thought that the Attorney-General should have relieved the Court of the necessity of going into an explanation - Mr. Scott was certainly entitled to an explanation after the reports that had gone forth.  If a Magistrate had failed in his duty the reproof would have been merited, in Mr. Scott's case it appeared that any implied censure which might appear from the proceedings before the Court was unmerited; the foundation for any complaint being taken away by his not being the committing Magistrate, and he (Mr. Burton) thought that this ought to have rendered the interference of the Court unnecessary.  He regretted that Mr. Scott had fond it necessary to apply to the Court, and that the Crown Officers should have complained; but he was glad to see the magistrates come forward to support their characters: it was evidence of their fitness for the important trust committed to them, of their desire to fill their posts with credit, when they zealously watched even the slightest aspersion of their characters; and he should be gratified to see every Magistrate act as Mr. Scott had done.



[ 1] See also Sydney Gazette, 2 February 1836.  For comments, see Australian, 5 February 1836.

Published by the Division of Law, Macquarie University