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

Ex parte Attorney General, in re Lewthwaite [1837] NSWSupC 42

legal profession, discipline - Attorney General, role in discipline of legal profession

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 10 June 1837

Source: Sydney Herald, 12 June 1837[1 ]

The Attorney-General moved that Mr. Lethwaite, an Attorney, be called on to answer matters which were set forth in certain depositions made in the Police Office, by which it appeared that Mr. L. had tampered with a witness and endeavoured to compound a felony.  Ordered.

The Attorney-General said, that it had been intimated to him by some of the gentlemen at the bar, that this motion should not have been made by him, but by a private barrister on the motion of some prosecutor.  He (the Attorney-General) thought differently - the matters appeared on sworn depositions which were lodged in his office, and he felt himself bound to take notice of them.

The Court considered that as it was a matter that concerned the administration of justice, the Attorney-General was bound to bring it under the notice of the Court; a private person might be deterred from making a motion on the subject by fear of the costs; besides, the Attorney-General always had a jurisdiction over the malpractices of members of the profession.

 

Dowling A.C.J., and Burton and Kinchela JJ, 12 July 1837

Source: Sydney Herald, 13 July 1837[ 2]

 

Wednesday. - In Banco. - Before the three Judges.

Exparte the Attorney-General. - This was a rule calling on an attorney named Lewthwaite, to shew cause why he should not be attached for attemping to compound a felony.  Mr. Lewthwaite appeared to shew cause, and put in two affidavits, which the Chief Justice said did not at all meet the charge, but upon Mr. Lewthwaite asking for time to consult counsel, the Court directed the Attorney-General to take out a rule, calling on Mr. Lewthwaite to shew cause why he should not be struck off the rolls of the Court.

The Attorney-General said, he thought it right to inform the Court and the profession that this was the last case of the kind in which he should act; the duties of his office were now so multifarious that he should not move in a case of the kind again. The profession now contained so many members of respectability and integrity that they should form themselves into a society for the regulation of their own members. There were invidious duties enough attached to the office of Attorney-General, without attending to the morals and manners of the profession.  Hitherto he had not kept back when he considered he was called on to act; the Court might recollect that he had on one occasion moved against a member of his own profession, and there was the case of another Attorney coming before the Court, but in future he should not consider it his duty to act in such matters.

Mr. Justice Burton thought, that as Attorney-General and public prosecutor, he would sometimes find it his duty, not as guardian of the profession, but in his official capacity, where a case of misfeasance or malfeasance came before him to proceed against the offending party; of course he would use his own discretion as to the course he should pursue, whether by indictment for misdemeanor or by moving the Court.

The Acting Chief Justice said, that in the present case the Attorney-General had not gone out of his way to look for it - it came before him on the affidavits returned to his office, and he was bound to bring it forward.

The Attorney-General said, that there were many cases which would attach great disgrace to the party in a professional point of view, but still he might not be able to move in them, and he thought that the members of the profession should form a Law Society for the protection of their own interest.

The rule was then ordered returnable on Friday, the 14th instant.

 

Dowling A.C.J., and Burton and Kinchela JJ, 14 July 1837

Source: Sydney Herald, 17 July 1837

 

Exparte the Attorney-General v. Mr. Lewthwaite. - Mr. Stephen appeared for Mr. L., and contended that from the affidavits which were before the Court, it was evident that Mr. Lewthwaite did not wish to persuade Mr. Cohen to abstain from prosecuting the male prisoner, but only the female, whom he believed to be innocent, which belief was strengthened by the fact that she had been since acquitted.  Mr. Stephen said that Mr. Lewthwaite had always been a most respectable man, and he had letters in Court, from Lord Lonsdale, Lord Stanley, and others, confirming the respectability of Mr. L. in England.  The affidavit of Mr. Lewthwaite stated that he was at an inn kept by Mr. Benjamin Morris, when a Mr. Wickham, a settler residing at Patterson's River, told him that a man and woman were in custody for stealing a pair of earrings from Mr. Cohen, that he had known the female for some time, and believed her to be a respectable, honest woman, and requested Mr. L. to go down and see if he could do anything in the matter; that upon this statement he went to Mr. Cohen, and after hearing his description of the position of the two persons, he felt quite convinced she was innocent, and told Mr. Cohen, that as he had not yet been to the Police Office he need not proceed against the woman.  Mr. Lewthwaite positively denied that he recommended Mr. Cohen not to prosecute the ``prisoners," and asserted that he received no fee for going to Mr. Cohen, but merely went on the belief that the female prisoner was innocent and acted entirely on pure and incorrupt motives.  The affidavit of Mr. Benjamin Morris corroborated Mr. L. as to what took place between him and Mr. Wickham, who has since gone to England.

The Attorney-General said, that as the rule was in his name, he would not press the utmost rigour of the rule, but as it was necessary that some example should be made, the Court might perhaps think that suspension, for a limited time would be a proper punishment.

The Chief Justice desired Mr. Lewthwaite to attend at ten o'clock on Saturday for the decision of the Court.

 

Dowling A.C.J., and Burton and Kinchela JJ, 15 July 1837

Source: Australian, 18 July 1837[3 ]

SATURDAY. - In Banco. - Exparte the Attorney-General v. Lewthwaite. - The Acting Chief Justice pronounced the decision of the Court.  He said the Judges were called upon to discharge a most painful but imperative duty on an Attorney of that Court.  He said the Judges were called upon to discharge a most painful but imperative duty on an Attorney of that Court.  It was, however, necessary they should discharge that duty, and vindicate the character of the honorable profession of the Law.  Mr. Lewthwaite, as an officer of that court, must have well known the grave nature of the charge preferred against him, and he had had ample opportunity of meeting it.  But he had not done so; he had only attempted evasively to answer it.  The charge involved that of endeavouring to obstruct the course of justice, and that charge had not been denied.  He had gone to a person, who had a charge of felony pending against two individuals, represented the case as a trifling matter  of 30s. or 40s. value, and endeavoured to dissuade him from appearing against the parties charged.  Now, it could not be denied that such conduct, especially on the part of the Attorney, was highly improper, and calculate to pollute the stream of justice, which should flow most purely from the fountain-head through all its channels.  It had been urged that one of the parties, in whose behalf Mr. Lewthwaite had so improperly interfered, and that from pure motives, had been acquitted of the offence imputed to her, but the Court could not shut out from its view, that she was the wife of the other party, who was convicted, and that she was probably acquitted on some technical point of law, which excused her on account of having acted under the control of her husband.  Under all the circumstances of the case, the Court had come to the conclusion, that it was their bounden, although painful duty, to order that Mr. Lewthwaite be struck off the Rolls of the Supreme Court. - Ordered accordingly.

Notes

[1 ] See also Australian, 13 June 1837; Sydney Gazette, 15 June 1837; Sydney Herald, 19 June 1837; Sydney Gazette, 20 June 1837.

[2 ] See also Australian, 14 July 1837.

[ 3] See also Sydney Herald, 17 July 1837.

Published by the Division of Law, Macquarie University