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

R. v. Dumaresq [1837] NSWSupC 15

Australian Agricultural Company - criminal procedure

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 25 March 1837

Source: Sydney Herald, 27 March, 1837[1 ]

The Attorney-General applied for a rule, calling on Lieutenant Colonel Henry Dumaresq to shew cause why a criminal information should not be filed against him, for publishing certain statements respecting Dr. Thomas Whitfield, tending to provoke a breach of the peace

It appeared that in July, 1835, Dr. Whitfield entered into an agreement with Colonel Dumaresq to proceed to Port Stephens as Superintendent of Agriculture for the Australian Agricultural Company.  He remained there until February 6, 1837, when he received a note from Colonel D. stating, that in consequence of a charge which had been preferred against him, he must decline holding any intercourse with him, and on the following day, Mr Whitfield received a communication from Colonel D, enclosing a statement which had been forwarded to him by Lieutenant Caswell, R N. The statement contained several distinct charges of indecent conduct on the part of Dr. Whitfield, towards five or six of the company's assigned servants, at different times.  The following day, an investigation was held, when one of the men named in Lieutenant Caswell's statement denied that that portion of it which alluded to him was correct.  Mr. Whitfield then requested that any further investigation should take place before Mr. Cook, the Police Magistrate, but Colonel Dumaresq refused to make any charge in that way, as in his opinion the case was not in a state for a judicial tribunal.  Dr. Whitfield then came to Sydney, and by his attorney wrote to Colonel Dumaresq, that unless he preferred a charge against him before the Magistrate he should commence proceedings against him, and Colonel D. not having done so, the present application was made.  Doctor Whitfield's affidavit totally denied the whole of the charges preferred against him, and explained away one or two of the cases referred to in Lieutenant Caswell's statement.  A civil action has been commenced against Lieutenant Caswell, but from the relative positions of the applicant and Colonel Dumaresq, it was feared that a civil action would not lie against him.  The Attorney General addressed the Court at great length, but the above are the facts of the case.

The Court would not grant the rule.  Looking at the situation in which Colonel Dumaresq stood, as the innocent recipient of a charge which he had communicated to the accused in the most delicate and proper manner, they did not see any ground for granting the rule.  The very circumstance of Colonel Dumaresq seeking a private enquiry, was a proof of his acting bona fide.  The primary object of Doctor Whitfield, that of putting his denial of the charge, on oath he had accomplished.  Rule refused.




[ 1] See also Australian, 28 March 1837; and the editorial on criminal procedures and grand juries in the Sydney Herald, 23 March 1837.

Published by the Division of Law, Macquarie University