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

Re Plunkett [1837] NSWSupC 21

Attorney General, attempted impeachment of - crime suppression association

Supreme Court of New South Wales

Dowling A.C.J. and Kinchela J., 15 February 1837

Source: Sydney Herald, 20 February, 1837

The Attorney General and Mr. Sydney Stephen.

The Attorney-General wished, in the present of the Court, to ask Mr. S. Stephen when he intended to bring forward his impeachment for not allowing him to act as Counsel for the Crown, in certain cases of felony, which Mr. Justice Burton would recollect Mr. S. had threatened to make.

A rather angry desultory conversation took place between the learned gentlemen, which ended in Mr. Stephen pledging himself to bring the unprofessional conduct of the Attorney-General in monopolising the Crown Briefs between himself and Mr. Roger Therry before the Court at an early period.

Several matter of course motions having been made, the Court adjourned; and their Honors the Acting Chief Justice and Mr. Justice Kinchela proceeded to try Criminal cases.

 

Dowling A.C.J., and Burton and Kinchela JJ, 31 March, and 1 April 1837

Source: Sydney Herald, 3 April, 1837[1 ]

 

The Attorney General said the Court would recollect, that Mr. Sydney Stephen had, during the last criminal sessions threatened him with an impeachment.  On the first day of term, Mr. Stephen had promised to make the motion in the course of the term, and as it was now the last day of the term, and as it was now the last day of the term, he would ask Mr. Stephen when he intended to bring his charge.  He had no angry feeling in bringing the matter before the Court, but merely wished to set himself right with the Judges, and through them with the public, whose paid servant he was.  What he had done was in the exercise of his public duty, and to the best of his judgment, and he could not allow any charge that had been publicly made to lay over any longer; and if Mr Stephen had no motion to make, he trusted he might be allowed to make a calm statement of the facts

Mr. S Stephen said, that being called on by the Attorney General he should bring forward the charges.  On the first day of term he had promised to make them during the term, but he thought the case had dropped.  He had to complain of an interference on the part of the Attorney General, from what he considered improper feeling, and he had prepared the charges which, but for the absence of a copying clerk, he should have had with him, but he pledged himself they should be laid before the Court before it rose.  His ill health was a sufficient excuse for not having prepared them before.

The Attorney General said that was all he wanted; he ought in courtesy to be allowed to see the charges before he was called on to answer them, but as he was armed in honesty, he would meet them at once.

 

After a few motions of course had been disposed of, the Judges sent their compliments to Mr. Stephen that they were waiting for him. After a considerable space of time, a note was received from Mr. Stephen, stating that his charges would not be ready for an hour, when he would deposit them with the Chief Clerk. Mr. Gurner was then sent to inform Mr. Stephen, that as the charges had been publicly made, they had better be discussed publicly.

Mr: Gurner returned, stating that Mr. Stephen was neither at his house or his office, but had gone out for a ride.

Mr. Therry complained of the discourtesy of Mr. Stephen. His name was in some way to be mixed up with the case, and he had written upwards of a fortnight ago to Mr. Stephen on the subject, and had received no answer. He must leave town on public business on Saturday afternoon for a month, and he particularly wished to have the matter settled before he left.

The Acting Chief Justice said, under the circumstances, he would adjourn the Court to Saturday, and desired the clerk to inform Mr. Stephen that they would sit specially to hear him.

Saturday, April 1 - Before the three Judges.

On their Honors taking their seats this morning, the Acting Chief Justice said that Mr Sydney Stephen having handed a written communication to the Judges concerning the conduct of the Attorney General and Mr. R. Therry, the Court deemed it necessary that those gentlemen should answer the charge in writing, and that the Court, painful as it would be to them, would then decide. For the purpose of giving the learned gentlemen time to answer the charges, they would adjourn to Monday week.

The Attorney General said, that after the fatigue of the term, he was going out of town, and this was the only opportunity he had of leaving town. If the Court would allow him and Mr. Therry an hour or two, they would be prepared with an answer, and he hoped their Honors intended to decide publicly.

The Acting Chief Justice - Certainly, the decision shall be as public as the accusation.

The Court was then adjourned to two o'clock.

At half past three o'clock their Honors took their seats, when the acting Chief Justice said, that having been invited as Judges of the Court to investigate a complaint against the Attorney-General and Mr R. Therry, and a written statement having been forwarded by Mr. S Stephen, and the Attorney-General and Mr. Therry having sent an answer to those charges, the Judges felt it their duty, however painful, to have the whole of the Documents read by the officer of the Court, in order that the public might have the means of judging of the conduct of those gentlemen themselves, and also of judging of the decision the Judges might come to.

The Chief Clerk then read the statements of Mr. Sydney Stephen, the Attorney-General and Mr. R Therry, but, as after the statement of the Chief Justice that they ought to be laid before the public, of course they will be through some source; we shall not pretend to give garbled statements, but endeavour in our next to lay the whole before our readers.

Mr. Sydney Stephen said, that many of the statements made were absolutely false and capable of disproof, if time were allowed to procure affidavits. He did not allude to Mr. Therry's statement, he did not say that was false.

The Acting Chief Justice said that the Court could not fail to recollect that on the first day of term Mr. Sydney Stephen had promised to make these charges, and that he had allowed the last day of term to pass without making them, and that yesterday the Court waited near two hours for Mr. S , and they considered the application for delay came from Mr. Stephen with a bad grace. The charge had been made in writing, and had been answered at a very short notice by the gentlemen concerned, and all the statements having been read, the Court considered the matter ripe for decision. Taking the statements to be the statements upon honor of members of the honorable profession of the bar, the Court had carefully reviewed them and could not refrain from deciding on them, however painful they might consider their duty to be. He was of opinion that such an enquiry had never before been submitted to the decision of a Supreme Court of Judicature. The Judges were satisfied that the charges made were wholly unfounded as regarded the unprofessional and improper conduct of the Attorney-General and Mr. Therry, and that the charges were altogether frivolous.

Mr. Stephen said, of course, the Court would furnish him with copies of the statements.

The Acting Chief Justice  said that the matter was decided, and copies would not be furnished.

Mr. Justice Burton - You made a statement just now, that it would be better for you if the Court would forget it. You had better go home and not let us see you any more to day.

 

Notes

[ 1] See also Australian, 7 April 1837; Sydney Gazette, 7 April 1837.  The Australian was critical of the conduct of Burton J. at this hearing.  The Sydney Gazette stated the substance of Stephen's objection to Plunkett: that he had been employed by some cattle associations, partly to obtain fees for his associate Therry, and partly through hostility to Stephen.  This also involved a conflict of interests in the Attorney General.

Published by the Division of Law, Macquarie University