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

R. v. Nicholls [1837] NSWSupC 12

habeas corpus - convict evidence - legal practitioners, delays by - equity, delays in - Dowling A.C.J., attitude to attorneys

Supreme Court of New South Wales

Dowling A.C.J., 14 March 1837

Source: Sydney Gazette, 16 March 1837

Lyons v. Nicholls - Mr. Windeyer moved for a Writ of Habeas Corpus, to produce one Dobson in custody of the Sheriff, under execution, on the affidavit of Mr. Unwin, setting forth, that the said Dobson is a material and necessary witness in the case.

His Honor considered that no such power was invested in the Court, as to giving an order for the release of a prisoner in execution of the Sheriff.  As well might it be competent, to order prisoners up from Norfolk Island, or Moreton Bay.  If the witness were produced with the consent of the Attorney General, it was quite another thing; he would then be examined; similar applications had been made to the Court, and invariably refused.

Mr. Attorney General, doubted much, whether he possessed such power; If he did possess that power, he could as well release all the prisoners at Norfolk Island, and Moreton Bay, as His Honor had observed.

Mr. Windeyer submitted, that, as the prosecution in question, was partly on behalf of His Majesty; if the Attorney General appeared as His Majesty's representative it certainly became his duty to promote it in every way to serve the ends of justice.  The learned Counsel quoted the Act, 9th. Geo. 4. which empowers the Court to issue an order for the production of persons necessary as witnesses confined in any gaol, or prison, with the exception of prisoners of war, for the production of whom an application to the Secretary of State, is necessary.  He also quoted from 3. Barrows 1440; the case; the King v.Burbage, to prove the competency of the Court to counteract any attempt to abuse this privelege [sic]; of course such an application would not be likely to be made in England, as there the witness would not be a competent one although here admitted as such; he would remind His Honor, that a witness named Palfrey, who was in custody at the hulk, or elsewhere, under sentence for cattle stealing, was produced in the case of Sparke, and Jones, which was tried the other day, on the order of the very judge who convicted him, and his testimony received upon the trial; he would beg permission to issue a subpaena for Dobson, and have him examined, de bene esse; His Honor objected to that rule of Court, applying solely to persons intending to leave the colony.  Mr. Windeyer quoted from the books, and after much hesitation on the part of the learned Judge, the motion was granted.


Dowling A.C.J., 15 March 1837

Source: Sydney Herald, 16 March, 1837[1 ]


Wednesday, March 15, 1837 - Before the Acting Chief Justice and a Special Jury.

Lyons qui tam v. Nicholls - The Attorney-General said, that in moving that this case be postponed, he felt himself bound to say that it was chiefly his fault that the case could not come on.  It was not till the evening before, when reading his brief to prepare himself for the case, that he found that one-half of the sum sought to be recovered would circumstances, he could not appear for the defendant, and had thrown up his brief when it was too late to retain another counsel.

His Honor said that there were many Special Jurors bought down from the Country, and it was downright injustice to the gentlemen who had that onerous and important duty to perform, to let them go home and then have to return again.  If the case did go over, the defendant must pay the costs of the day.

The Attorney-General said that as he was the cause of the delay, he should pay the expenses out of his own pocket.

His Honor - The Attorney must have been aware you could not defend the case; the declaration commences by setting forth that the case is proceeded with in the name of the Attorney-General on behalf of His Majesty.

Mr. Windeyer said that there must have been some special reason for giving the brief to the Attorney-General in the case.  Mr. S. Stephen had last term moved that the case be postponed.

His Honor - Nobody is ever ready in this Court, all owing to the Attorneys.  It is such proceedings as these that cause the clamour out of door that nobody can come into court on account of the expense, and it is all caused by the negligence of the Attorneys.  Let the case be placed at the bottom of the list for to-morrow, and let the Attorney in the case pay the expenses out of his own pocket.[ 2]




[ 1] See also Australian, 17 March 1837; Sydney Gazette, 18 March 1837. 

See also Sydney Herald, 20 March, 1837: ``Lyons qui tam v. Nicholls. - This case was postponed to next Sessions, in consequence of the absence of a material witness."  For earlier proceedings, see Sydney Herald, 20 February 1837 (a prosecution for conspiracy under which the defendant was fined £500 and sentenced to two years imprisonment) and see Sydney Gazette, 16 February 1837.

For newspaper commentary, see Sydney Gazette, 21 March 1837.

[2 ] Something of the attitude of the judges towards the profession can also be seen in the following report of the proceedings of the Supreme Court of 25 March 1837 (Sydney Herald, 27 March 1837): ``Saturday. - Before the three judges in banco.

``On the first case being called on, Mr. Sydney Stephen said that as their Honors had several days to sit, and had not more business than could be done in two days, it was the wish of the bar that the Court should adjourn until Monday.

``The Chief Justice. - And I suppose on Monday you'll want a holiday because it is Easter Monday; I do not see why the Judges should be brought up here day after day for nothing.  Go on with the paper, (the bell for church service commenced ringing); are you going to church?  If that is your ostensible reason we'll adjourn."

As Dickens suggested in Bleak House, the longest delays were in equity. For a New South Wales equity case that lasted several years, see Perkins v. Jones, Sydney Herald, 17 July 1837.



Published by the Division of Law, Macquarie University