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

In re Rowe [1838] NSWSupC 72

legal practitioners, discipline of - striking off legal practitioners - costs, legal, in criminal cases - criminal prosecutions, right to counsel - legal practitioners, division of profession

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 16 June 1838

Source: Australian, 19 June 1838[ 1]

The Chief Justice said that he understood a professional gentleman was waiting in Court in expectation of a Motion being made respecting his conduct, and the Court wished to know whether the Attorney General had any such motion to make.

The Attorney General said that he had intended to bring a case under the notice of the Court, but he had not been instructed by the Crown Solicitor, the case was that of Mr. T. D. Rowe, an attorney of the Court.

The Chief Justice said that as Mr Rowe was present, he having received notice that a Motion would be made, in justice to that gentleman, the case should be proceeded in or total abandoned.  It would not do to trifle with the feelings of any person.

The Attorney General said that on the trial of the King v. Macarthy for felony, he had observed to the Court, the disgraceful practice of Attorneys getting large sums of money from prisoners as payment of fees, and after giving a barrister a small sum for conducting the case, pocketing the rest.  It was notorious and disgraceful, and he thought that a scale of attorneys' costs should be established for the protection of the poor prisoner, and to put an end to this disgraceful practice.

His Honor Mr. Burton said, that the Court was not going to enter into the question of Attorneys fees.  He understood that a charge was to be brought against a professional gentleman for taking a large sum of money for fees and to subpoena witnesses, and pocketing it without bringing down the witnesses.  Mr. Rowe had written a letter to the Judges to know if the application was going on, and he thought that it ought to be brought forward at once.

The Chief Justice said, that as it had been a public matter referred to in open Court, he thought Mr. Rowe ought to have an opportunity of as publicly clearing himself from any imputation.

Mr. Rowe said, this was the first time that any aspersion had been attempted to be cast upon his character, and he repelled the insinuation with indignation, and he could not help observing that the Attorney General was not explicit on the circumstances which were fully known to that gentleman who had been present at the trial of Macarthy, and whose observations on that occasion had led to the necessity of an explanation.  He (Mr. R.) had been harrassed [sic] with public, as well as private insinuations against his professional character, and that to at a time when he was applied to by many persons who wished his professional services at the Quarter Sessions.  He hoped and trusted that no petty feeling existed in the mind of the Attorney General; he hoped that no petty feeling existed in the mind of Mr. Fisher; he believed not and hoped not; he only wished for a full investigation which he was ready and anxious to meet; he had been an attorney and solicitor of the Supreme Court for 14 years, without a slur being thrown upon his professional character, and he could get the testimony of many professional gentlemen then in Court, to to [sic] the honesty of his professional dealings.

The Attorney General said, that one Cornelius Macarthy tried at the last Criminal Sessions, had put in an application to have his trial postponed.  When the prisoner was put to the bar, he stated to the Court that his witnesses were not in attendance and he was not prepared to go to trial, which application appeared to him (the Attorney General) as rather extraordinary as the prisoner had counsel, and as his attorney (Mr. Rowe) was sitting in Court at the time, and did not explain the prisoner's application, but rather appeared to wish that the trial should be proceeded in.  The Chief Justice who presided at the trial, saw the brief in the case, and perceiving that the witnesses were necessary to the prisoner's defence, he postponed the trial to give him an opportunity of getting them.  It then appeared on the prisoner's statement that twelve guineas had been paid to Mr. Rowe to fee counsel and get the witnesses, which  had not been done - however, Mr. Rowe's own affidavit admitted that he had received twelve guineas, and it appeared that the witnesses had not been subpoenaed.  Now, there was no difficulty in getting the witnesses who lived at Appin, and who were afterwards procured upon the prisoner's statement, although it was set out, in excuse that the prisoner had not instrutced [sic] Mr. R. where his witnesses were to be found.  But he (the Attorney General) contended that it was not the business of an ignorant man to be prepared with all the minutiae necessary for his defence to instruct his attorney, but the duty of an attorney to sift the matter, and find out from the prisoner what would be favourable to his defence; and to enquire of him what witnesses he could get to make out his case.  He would ask Mr Rowe, if the counsel in the case was satisfied with a fee of £5, what Mr Rowe had done that could entitle him to £7 for his costs.  He (the Attorney General) was not certain, but he believed the prisoner had stated that the brief was prepared in the gaol - how then could Mr Rowe make out a claim of £7; he had not even prepare the brief; he had not subpoened witnesses; what benefit had accrued to the prisoner? actually none, for what could counsel do without witnesses.  It was stated in the affidavit, that he (Mr Rowe), had had a long conversation with a person named Calaghan the man who had paid Mr R. the twelve guineas, but what good had that done the prisoner? he had not asked where his witnesses were to be found; it was also stated, that Mr Rowe had had conversation with the prisoner himself, but of what service was that, when he had not found out what witnesses were required, or where they were to be found; and had not taken any steps to have them on the trial.  The very circumstances of the witnesses being afterwards easily procured, was proof that no exertion had been made to get them before.  One thing was certain, that Mr Rowe had not even attempted to account how the seven guineas had been appropriated, or in what manner he could make up a bill of costs, which would take a good many six and eight pences, to amount to seven pounds.  But it appeared that this was not the cause stated for the absence of the witnesses, but merely for fees of counsel; when the Court saw counsel and attorney in any case present in Court, it was natural for the Court and the Crown Prosecutor to suppose that they were in full possession of the case, but in the present it appeared to the contrary.

The Chief Justice - You have stated, Mr Attorney, that no witnesses were forthcoming when the trial was called on, but that they were afterwards subpoened; can you inform the Court how those witnesses were afterwards obtained?

The Attorney General said, that it appeared on the Crown Solicitor's affidavit, that by direction of the Court, he had made enquiry into the case, and had been instructed by the prisoner, that two witnesses, Edward Welsh and Mary Murphy, of Appin, were necessary to his defence.  The Crown Solicitor had subpaened them and the witnesses had immdiately [sic] attended the subpoena.  It also appeared, that the prisoner admitted that he had not communicated the residence of these witnesses to Mr Rowe.  But what he (the Attorney General), relied on was, that Mr Rowe had got seven guineas from the prisoner to conduct the case, and it was his duty to have made the enquiry, and have taken care that they were forthcoming.  If Mr Rowe had laid affidavits before the Court that he had endeavoured, but could not get the witnesses, it would have altered the case.  It was his duty, as Attorney General, to protect the interests of the Bar, and he would, upon every occasion that came under his notice, bring similer [sic] cases before the Court.  The division of the Bar had been a salutary check upon the practice of solicitors taking money in their right hands as attorneys, and putting it into their left as barristers; and he thought that they ought to be still further checked by a scale of costs for their proceedings.  He could only say, that during many years practice, at home, half a guinea had been the attorney's fee for handing over a brief to a barrister, and they were perfectedly [sic] contented with that sum.

Mr Rowe - That was in Ireland, Mr Attorney General.

The Attorney General said that it was in Ireland, and he only wished the attorneys of this Colony would be guided by the Irish practice, so many cases of the present nature would not then occur.  He had not been in possession of the affidavits in this case before he came into Court, but for the honor of the profession, he had felt it his duty to bring the case forward.  He had no private feeling in the case; he would be glad that Mr Rowe would clear himself from the imputation.

His Honor Mr Justice Willis wished to know what was the date of Mr Rowe's affidavit.  It appeared by Mr Fisher's affidavit, that Mr Rowe had stated to him, that he had been sent for by the prisoner to the gaol, and that the latter had then admitted that it was not Mr Rowe's fault.  Now, Mr Fisher said, expressly, that the prisoner stated he had not sent for Mr Rowe; and if Mr Fisher's statement was true, then he (Judge Willis), considered that Mr Rowe had wished to impose upon the Court by a statement altogether untrue, with intent to deceive the Court, knowing that that statement would be conveyed to the Court by Mr Fisher?  and His Honor conceived that this was an aggravation of his former conduct.  His Honor had stated this, seeing Mr Rowe in Court, to enable him to account for what appeared to be a very serious charge.

Mr. Rowe begged to call the attention of their Honors to the wording of the affidavits, by which it appeared that he had done nothing which was reprehensible, or that could affect his honor as an attorney of the court.  It had been stated, that he had received twelve guineas from the prisoner, five of which had been paid to a barrister (Mr. Foster) and it had been insinuated that he had done nothing for the £7 remaining.  He had done every thing.  The Attorney General had admitted that he was not acquainted with the practice of prisoners employing attorneys, and from what he (the Attorney General) had stated, he (Mr. R) believed he was not.  If he made himself acquainted with it, he would find that many interviews were necessary for the defence, or before even the truth could be sucked out of a prisoner; and with reference to the Attorney General`s remark, that nothing appeared on paper, he (Mr. R.) for one would never again put his opinion in any case on paper; he thought that it was quite sufficient for an attorney to set by counsel and instruct him in the case.  As to the witnesses, it appeared on his affidavit that the prisoner had not informed him where they were to be found; this was true, he had sworn it, how then could he subpoena them? but moreover, at last it appeared that these witnesses were at Appin, and it would have taken the whole, if not more than the entire sum to pay their expenses down and back.  But he would appeal to His Honor, the Chief Jurtice [sic], who presided on the trial, whether the prisoner did not state at the bar, that he did not know where his witnesses were to be found; that they were moving about from place to place, and had no fixed place of residence.  But the charge that had been attempted to be made against him was founded on a letter, which the Attorney General had not thought fit to produce to the Court, and the charge therein stated was negligence in his duty. (the letter was here produced and read).  He was bound to say, that this was the first time any attempt had been made to charge him with imposing on the Court; he could not recollect having made any such intimation to Mr Fisher as that attributed to him, and if he had done so it could not have been with any intent to impose on the Court.  The very circumstance of his having called upon the person who had the charge of the prisoner, (Mr Kick, the Governor of the gaol) was a denial of his wish to impose upon the Court, and Mr Keck's affidavit totally disproved any desire on his (Mr R's) part to bounce the prisoner.  He might have asked him how he could have stated circumstances so false, but he did not attempt to bounce or intimidate him - with this feeling he would leave the matter with their Honors.

The Attorney-General said he would not reply to what had fallen from Mr Rowe, but leave it to the judgment of the Court whether he had in any way exonerated himself.

The Court ordered that Mr Thomas Deane Rowe, appear on Saturday next, to hear the decision of the Court.

 

Dowling C.J., Burton and Willis JJ, 23 June 1838

Source: Australian, 26 June 1838[ 2]

 

His Honor the Chief Justice said, that in the matter of T. D. Rowe, an Attorney of that Court, Mr Rowe had applied to the Court to have the case referred, and to be allowed to be heard by counsel.  With every disposition to afford that gentleman ample opportunity to clear himself from the imputations against him, the Court could not grant his application, especially as Mr Rowe was present in Court when the case was brought on, when he had full opportunity to reply to the application and remarks of the Attorney-General, and had not then made any such application.  The Court would not now form a precedent that might be of great inconvenience to the Court hereafter.  A rule to shew cause why an attachment should not issue against Mr Rowe would issue, and Mr Rowe would then have opportunity to appear and defend himself by counsel --.  Rule returnable on Saturday next.

 

Dowling C.J., Burton and Willis JJ, 23 June 1838

Source: Australian, 26 June 1838[ 3]

 

The Attorney-General then rose, and said nothing but a sense of his public duty would compel him to bring a charge against a professional gentleman, who had already been before the Court that day upon a somewhat similar charge; but he felt less hesitation in doing so as the gentleman, he meant Mr Rowe, had had notice on Saturday last of his (the Attorney-General's) intention to do so - unless Mr Rowe did account for certain moneys which had come into his hands in rather an extraordinary manner.  The case was as follows:-- In the case of the Queen v. Archibald McKeon alias Campbell, tried at the last Court of Quarter Sessions for Sydney, at which he was found guilty, it appeared that the sum of thirty-seven pounds had been deposited in the hands of Mr Francis Mitchell, of Sydney, which appearing to the Crown Solicitor to be part of the money for the stealing of which the prisoner was tried, Mr Fisher gave notice to Mr Mitchell to retain the money in his hands until the case should be decided.  Before the notice, however, reached Mr Mitchell, that gentleman had paid into the hands of Mr Rowe, by the prisoner's order, the sum of £32, for defending him at the Court of Quarter Sessions.  It appeared plainly that the sum of £32 was a part of the sum of £50, stolen from a man named McDowall, who was tried and convicted of horse-stealing at the last Criminal Court.  It was more than probable that Mr Rowe must have known that this money was not honestly come by by [sic] the prisoner, but even if he had not been acquainted with the fact at the time, it afterwards came to his knowledge on the trial, and he (the Attorney-General) thought that Mr Rowe ought then to have accounted for the sum, and have handed over any balance to the Crown Solicitor, as he must have known that the money was forfeited to the Crown by the prisoner's conviction.  Perhaps Mr Rowe might yet be able to account for the expenditure of the money in some way that was not apparent to the Attorney-General, but that sum could not possibly be retained as fees of counsel for defending a common Sydney case at the Quarter Sessions, especially as Mr Rowe appeared as counsel, and conducted the defence in person.  At any rate it was his (the Attorney General's) public duty to enquire what had become of the money, and he had applied to Mr Rowe more than once for an explanation of the transaction, without receiving any answer.

The Chief Justice said that there might possibly have been many witnesses in the case, and the expense of collecting witnesses was heavy.

The Attorney-General said that there could not have been any great expense attending it as it was a Sydney case.

His Honor Mr. Burton wanted to know whether the prisoner had been tried before or after McDowall.  If he had been tried before McDowall's conviction, the money had passed into Mr Rowe's hands before the Crown had any claim on it, which only arose when McDowall was convicted.  If the case stood as represented by the Attorney-General, Mr Rowe was charged with receiving the money knowing it to be stolen.

The Attorney-General did not say that - he only said that it appeared to him that Mr Rowe must have been acquainted with it.  If Mr Rowe could account for the expenditure of the £32, then the Crown could not claim it; but he (Mr R.) was bound to account for it, for it could not be claimed as fees for the defence; and he thought that even if the man had made Mr R. a present of it, it would have been incumbent on him, when made acquainted with the way in which the man had become possessed of it, to come forward and account for it.

The Chief Justice directed that Mr Thomas Deane Rowe be ordered to appear on Saturday next to answer the charge made against him.

 

Dowling C.J., Burton and Willis JJ, 30 June 1838

Source: Sydney Gazette, 3 July 1838[ 4]

 

The Attorney-General moved that the rule which had been issued calling upon Mr. Rowe to show cause why an attachment should not be issued against him be made absolute.

Mr. Therry appeared to show cause.  He said that the facts of the case were fully before the Court, this being the third time that the matter had been heard; but he must say that it was not very easy to collect the precise grounds which had influenced the Court in granting the rule.  The case appeared to divide itself into two parts - first the original case of the motion, and secondly a point which arose during the case, and which appeared to make an impression the mind of one member of the Court, and to meet which an additional affidavit had been filed by Mr. Rowe.  The gist of the first charge appeared to be, that he had acted unprofessionally in receiving a sum in gross; and the second, that he had made a statement with intent to deceive the Court.  (The learned gentleman here read the additional affidavit filed by Mr. Rowe, which stated that he had no recollection of informing Mr. Fisher that he had not seen McCarty, but that he had sent him a message stating that Mr. R. was not to blame for not getting his witnesses down; and that he believes Mr. Fisher must have mistaken the intent of what he said; and that by whatever he said he had no intention of deceiving the Court; and in confirmation of this statement he referred to the affidavit of Mr. Keck.)  The gist of the charge was, that he had received twelve guineas for defending McCarty.  Five guineas of this sum it was admitted had been paid to Mr. Foster for Counsel's fee, and the other seven Mr. Rowe claimed for his own services.  When the circumstances of the case were first brought under the notice of the Court, the Attorney-General stated that the practice of taking sums in gross prevails in this colony, and he (Mr. T.) believed it was well known to be prevalent in England.  That it was irregular he was willing to admit, and he thought there might be a great improvement, but if the practice prevails, it is more to be attributed to a defect in the law than any fault in the practitioners.  There is no regulation by which a bill of costs for defending a prisoner can be taxed.

Mr. Justice Burton said that every bill of costs for services done in Court by an attorney, comes within the Act, and is taxable.

The Chief Justice said that the reason why bills in criminal cases are not taxed, is, either because the prisoner is convicted, or, when he is acquitted, he is too glad that he got off to be very particular about the attorney's bill; but ever charge made by an attorney is taxable.

Mr. Therry said that he had looked through Mr. Chitty's four volumes, and could not find any case where a bill of costs in a criminal case had been taxed.  In all the cases where champetry or maintenance were alluded to, they were civil suits.  If the practice of the profession in this respect had been irregular, he respectfully submitted that the most the Court should do would be to prevent it in future, for to punish Mr. Rowe for following up a practice which had been sanctioned and tolerated, would be a species of iniquity that he was confident the Court could not contemplate.

The Chief Justice said he would not allow Mr. Therry to state that the practice had been sanctioned by the Court: the Judges were not aware of its existence.

Mr. Therry said that the practice had been so far sanctioned that, although it had been long known to exist, this was the first time that it had been brought before the Court.  In coming to a decision on the point, the Court would take into its consideration whether there was any great disproportion between the services rendered and the money received.  Out of the £12 received, £5 had been paid to counsel, and he understood that if a regular bill of costs for the visits to the gaol and other services performed was made out, it would far exceed the sum received.  Seeing that the case was not flagrant, and that it had long been the practice, he was sure the Court would deal with it rather as a case for prevention in future, than punishment.  The cases in the books, in which conduct of this kind had been brought before the Court, referred to civil suits, where the agreement had been to receive part of the money or land sued for, but there was no instance where a bill of costs in a criminal case had been brought before the Court.  Having disposed of the first he would proceed to the second branch of the case.

The Chief Justice said that Mr. Therry had not alluded to the gravamen of the charge, which was, that after undertaking to defend a prisoner, and receiving his money, he had done nothing for him.

Mr. Therry referred the Court to the affidavit of Callaghan, a friend of the party who paid the twelve guineas to Mr. Rowe, and who understood that it was fees for Mr. Rowe and Mr. Foster.  With respect to what Mr. Rowe had done, he submitted that it was not for the Curt to say what instructions he had given to counsel or what he had done, and without proof the Court would not be inclined to form a presumption that Mr. Rowe had been guilty of negligence.  With regard to the second part of the charge, with every respect for Mr. Fisher, who he was confident would not state what he did not feel confident of, he thought that he had laboured under a great misapprehension.  The conversation between Mr. Rowe and Mr. Fisher was said to have taken place on the 12th May, and it was not reduced to writing until the 20th, an interval of fourteen days, which would account for any imperfection of memory on the part of Mr. Fisher.  The learned gentleman continued his argument on this point to a considerable length, contending that if the conversation did take place Mr. Rowe could have have [sic] had no intention of deceiving the Court, or he would have embodied it in an affidavit which he made the same day; besides it was extremely silly to suppose that he would state that he had not had any conversation with Macarty, when he had called upon Mr. Keck to be present at the conversation, in order that he might hear what was said.

Mr. Justice Burton said, that in the 2nd Geo. IV., the statute under which attorney's costs are taxed, the words are attorney and client, which would apply to either criminal or civil cases.

Mr. Windeyer followed Mr. Therry.  He submitted that an attorney appears for his client under the sanction of different Act of Parliament, but here is no Act under which an attorney is allowed to appear for a person charged with felony; and in no work that he had read was there any allusion to an attorney appearing for a felon.  No doubt they appear in criminal cases where a party is charged with a misdemeanor; in criminal informations for libel for instance, they are allowed to appear by courtesy, and no doubt when they do appear they are liable to all the statutes, whether of James I. or any other; but he challenged the Attorney-General to show a case where the costs of an attorney were taxed for defending a party in a case of felony.  It would be monstrous to suppose that an attorney was not to receive costs in advance from a prisoner; suppose he is convicted, to whom is the attorney to look for payment, or to whom is his bill to be delivered?  In case of conviction the property vests in the Crown, so that the attorney would be driven to the chance of getting what he could from the Crown officers.  As there is no Act of Parliament authorising persons charged with felony to have an attorney, any body else will do as well, and he was aware that the practice at home was for the barristers to receive briefs from parties who were not attorneys, and at the Old Bailey he had frequently seen Mr. Clarkson and Mr. Phillips receive briefs that did not come from an attorney.

Mr. Justice Burton said, that he was sure Mr. Windeyer was mistaken; if any barrister in England did so he would be cut by the bar; if the party delivering the brief was not an attorney he was acting for one, and the name of some attorney was on the brief.

Mr. Windeyer said that the name of an attorney might have been used, but there was a class of persons known by the name of Old Bailey agents who drew up briefs for prisoners and gave them to counsel, and the irregularity was waived by law; but to satisfy the etiquette of the bar the name of an attorney might have been used.

Mr. Justice Willis said he had had no Old Bailey practice himself, but he was confident Mr. Alderman Harmer had appeared for many thousand prisoners.

Mr. Windeyer said he had acted, not appeared as an attorney; and although there is no statute by which attorneys can appear for a prisoner, there is no doubt that they act for them every day.  With respect to the power of the Court, he submitted that the Court has no common law right to tax costs, but must confine itself to the statutes, and it was quite clear that the Court had no authority; but it was not Mr. Rowe's wish to meet the case that way, as he felt confident that on the merits the Court would not be called on even to admonish him.  The Chief Justice had stated that the gravamen of the charge was that Mr. Rowe had done nothing for his client; this was the first time Mr. Rowe had heard this, and if the Court really thought this was the charge, Mr. Rowe must have time to answer it, and he would be able to show by affidavit that he had done a far greater amount of labour than would entitle him to the seven guineas.  All that Mr. Rowe thought he was to answer was, that he had not brought down witnesses, and on that point he was prepared to show that it was ridiculous to suppose that he could bring witnesses from Campbell Town for seven guineas.  With respect to the other charge, was it likely that after getting Mr. Keck to be present at the conversation, he had told Mr. Fisher that he had had no conversation with him; but supposing he did, how could it be for the purpose of deceiving the Court?  How was it to get to the Court?  Could he suppose that Mr. Fisher would whisper it to one of the Judges, or that the Court would pay any attention to it when it was whispered?

Mr. Justice Willis said that he did not see there need be any whispering in the case.  When Macartey made his statement Mr. Fisher was the officer directed by the Chief Justice to reduce it to affidavit, and enquire into the circumstances, and if, from what Rowe told him, Mr. Fisher told the Judge it was all right, and Mr. Rowe was not to blame it was likely the matter would have been dropped.

After commenting on the hardships likely to accrue to the profession if the affidavits of men like Macartey, who would sacrifice any one for the purpose of postponing their trials, were to be received.  Mr. Windeyer continued, he was about to prepare affidavits to show that the practice of receiving sums in gross is general, but he believed that the Attorney-General would admit it; it was common for attorneys to receive twenty or five and twenty guineas, and after giving the counsel five guineas, keep the remainder for the themselves, and as the practice was known to be universal he was confident the Court would deal lightly with Mr. Rowe.

Mr. Justice Burton said that it was not universally known; the Judges did not know it, and he looked upon it as a slander upon the profession to say any such disgraceful practice was universal.

Mr. Windeyer said he was about preparing affidavits of the fact, but he understood the Attorney-General would admit it, which would, he thought, satisfy the Court.

Mr. Justice Burton said, certainly not; no man's admission could be taken respecting a slander of that kind.

The Attorney-General said that he believed the practice had been going on but not in a way that was tangible.  The reason was obvious, it was not two years since the bar was divided; before that the profession were united, and an attorney extorted money from a prisoner then as an attorney which he paid to himself as a barrister, and nobody was the wiser.  The costs then were not in proportion to the magnitude of a case, but the ability of the client to pay, and he was aware by report that attorneys got large sums of money, and cattle and sheep from prisoners, and there was one case which was brought before the Court in which an attorney was suspended for three months for taking goods from a prisoner in a criminal case so that there was a precedent where the Court had recognised an attorney in a criminal case.  One of his learned friends had justified Mr. Rowe's conduct on the ground of usage and the other that an attorney acting for a prisoner did not come within the law.  With regard to the plea of usage as well might the highwayman brought up for robbing on Hounslow Heath, plead that other gentlemen do the same.  If nothing else had shown the utility of the division of the bar, he thought the exposure in this case had.  He had seen it asserted in papers edited by attorneys and in other papers on their authority that since the division of the bar the costs of law proceedings had increased twenty-five per cent., but in the presence of the Officer of the Court he asserted that was not the fact; on the contrary, when attorneys were in the habit of paying themselves ten guineas, the now only give a barrister three.  After some other remarks, the learned gentleman continued that he believed it was a libel upon the barristers of England to say that they will take fees from any one.  The Old Bailey practitioners certainly do not rank very high in the profession, but he presumed that the practice was the same there as on the circuits, and he could appeal to their Honors whether the practice prevailed then.

The Chief Justice said it was the practice in the House Circuit during the twelve years he practiced there.

The Attorney General said that in Ireland any barrister who took a fee from any one but an attorney, would be cut by the profession.  The regular fee for an attorney handing a brief to a barrister, which had been drawn up by a prisoner, was half a guinea.

Mr. Justice Willis said that although he knew nothing about Old Bailey practice, he could not forget that, in his own time, there had been a Erskine, a Gibbes, and a Garrow there, and he was sure that Lord Erskine would never have been Lord Chancellor, Sir Vicary Gibbes, Lord Chief Justice of the Common Pleas, or Mr. Garrow a Baron of the Exchequer, if they had been guilty of such unprofessional practice.

The Attorney General continued his argument at great length, to show that it was the duty of Mr. Rowe to have procured the attendance of the witnesses; and that, in telling Mr. Fisher that Macarty had sent him word that it was his (Macarty's) fault that the witnesses were not in attendance, his intention was to deceive the Court, and get the matter cushioned, and he did not consider that Mr. Rowe had answered either point.

The Chief Justice sad that the Court was of opinion that the rule must be made absolute, and the attachment issued; but, at present, the Court would forbear making any observations on the affidavits.  Mr. Rowe must enter into his own recognizance of £110, to appear and answer such interrogatories as might be filed.

The Queen v. McKeon. - In this case a rule had been obtained calling on Mr. Rowe to account for a sum of money he had received from the prisoner McKeon.  At the request of Mr. Therry this matter was postponed for a week, as he was not prepared to argue it.

 

Dowling C.J., Burton and Willis JJ, 11 July 1838

Source: Sydney Herald, 13 July, 1838[ 5]

 

Exparte M'Keon. - In this case a rule had been obtained calling upon Mr. T. D. Rowe, an Attorney of the Court, to answer the matters in an affidavit filed by the Crown Solicitor, which charged Mr. Rowe with having received the sum of £32 from a prisoner to defend him, which £32 was part of the money that the prisoner had stolen, and with having refused to give an account of it.

Mr. Windeyer appeared to show cause - He said that from the first Mr. Rowe had had no wish to conceal the facts relative to this money, and all that he had done was with a view to disabuse the Court from the impression which the application was made.  The real difficulty upon Mr. Rowe's mind was, whether he was bound upon the mere requisition of Mr. Attorney-General or the Crown Solicitor, to render them an account of the private transactions between him and his client.  To the Court, as an officer of the court, he was at all times ready to give an account of any matter.  No doubt the Attorney-General has great power, but whether that officer, without any form, could call upon an Attorney of the Court to answer any questions he might think proper to ask, and if he demurs, bring him before the Court, was a question.  The impression on the mind of the Court when it granted the rule must have been, that Mr. Rowe had applied the money to his own use, which his affidavit would at once disprove, and his only motive for not having given the account before was, that he had doubts whether the Attorney-General had the power to demand it.  The affidavit of Mr. Fisher was, that Mr. Rowe had received the sum of £32 which was supposed to be part of the change of a £50 note which was supposed to have been stolen by M'Keon from a man named Macdowell, who was supposed to have received it in payment for two horses that he had stolen, and that the Crown Prosecutor in the Court of Quarter Sessions had made a memorandum, on the affidavits that Mr. Mitchell should be written to not to give up this money; but memorandum had not been acted upon, how was Mr. Rowe to know any thing about it.  It appeared that Mr. Rowe had received the sum of £32 from a respectable person for the use of his client; but, supposing all that was stated in the affidavit of Mr. Fisher was true, was it to be said that a prisoner accused of stealing is not to give money to his attorney?  In this Colony nine-tenths of the prisoners are literally thieves, and have no money that they have acquired honestly; but is it on that ground to be said that they are not to give money to an attorney to defend them?  Mr Rowe's affidavit stated, that on the 20th February M'Keon was committed to take his trial for stealing; that shortly afterwards M'Keon handed him a promissory not of Mr. Mitchell's for £32 which he took with an understanding that he was to retain the sum of £10 for his own expenses, and give the remainder to the prisoner; when he got the money, M'Keon said it was unsafe for him to have it in gaol; and, with the exception of £13, which he took, requested Mr. Rowe to take care of the money, which Mr. R. out of kindness to him consented to do; that M'Keon afterwards drew upon him for various small sums which he paid, and for which he has receipts in his possession; and that the sum of £2 5s. is still remaining in his hands.  When he was first spoken to on the subject by Mr. Atkins, the Attorney-General's clerk, he acknowledged that he had received the sum of £32, and that he had a small balance in his hands.  Under these circumstances, Mr. Windeyer said that he felt that the Court would consider there was not the slightest imputation on Mr. Rowe.

The Attorney-General replied, briefly contending that Mr. Rowe ought, for the sake of his professional character, to have denied upon oath that he knew that this money was part of the stolen money.  If an attorney was allowed to become banker for a prisoner, it would often tend to defraud for the rightful owners of the money.  The learned gentleman said that he thought that Mr Rowe ought to be called upon to answer interrogatories as to whether he was aware of the origin of this money.

After a few minutes consultation, the Chief Justice said, this was an application calling upon Mr Rowe to answer the matter in affidavit filed by Mr. Fisher.  With respect to the objection which had been relied upon by Mr Rowe, that he was not called upon to answer the Attorney-General, he thought that the Attorney-General's conduct had been lawful and proper, and forbearing as regarded Mr Rowe.  The Attorney-General was bound ex officio to take notice of the fact which appeared from the depositions, that money which had been stolen by a prisoner had got into the possession of another party, and it was his duty to enquire what had become of it?  Instead of at once applying to the Court, the learned gentleman had had the courtesy to apply personally and privately to Mr. Rowe, and it was not until Mr Rowe had delayed to satisfy him what had become of the money, instead of which, with the exception of what he as mentioned to Mr Atkins, he had given no account.  The deposition taken before the Magistrates had not been filed in the matter, and therefore the only question was, whether the matter contained in Mr Fisher's affidavit had been answered?  To that part of Mr Fisher's affidavit, in which it was alleged that £37 was part of the stolen money, it was competent for Mr Rowe to reply that he had no knowledge of the money being part of the stolen property; it was necessary for Mr Rowe, where his honor was so impeached, to have said that he was not aware of the fact, and as he had not done so, it was incumbent on the Court to call upon Mr Rowe to show cause why an attachment should not be issued, in which case he would have to answer interrogatories on the subject.

Mr Justice Burton agreed with the Chief Justice.  He thought that when M'Keon was convicted, the Attorney-General stood in his place, and had a right to enquire what had become of the money.

Mr Justice Willis said that enough had been shown to call upon Mr Rowe to state that he did not know this money was part of the stolen property.

Mr Windeyer said that Mr Rowe was ready at once to answer on the floor of the Court, any interrogatories that might be put.

Mr Justice Burton said that would be irregular; but if Mr Rowe consented, the attachment could be issued, and the interrogatories filed at once.

Mr Rowe consented, and entered into his own recognizance of £100 to answer such interrogatories as might be asked.

 

Dowling C.J., Burton and Willis JJ, 14 July 1838

Source: Sydney Gazette, 17 July 1838[ 6]

 

The Queen v. T. D. Rowe. - In this case an attachment had been issued against Mr. T. D. Rowe, an attorney of the Court, who had been ordered to answer certain interrogatories.  The Attorney-General moved that the interrogatories, and the answers thereto, which had been filed by Mr. Rowe, be read by the clerk.  The clerk read the following interrogatories and answers, which verified by Mr. Rowe's affidavit.

1st.  Are, or are you not, an attorney of this Supreme Court of New South Wales? - I am.  2nd.  Were you employed as an attorney for one Cornelius Macarthy, who was committed on a charge of manslaughter, and if so, at what time? - I was retained by said Macarty in May last, on a charge under 9th Geo. IV., but not of manslaughter.  3rd.  Did, or did you not, receive any sum or sums of money from the said Cornelius Macarthy, or on his account; and if so, to what amount and when, and for what purpose? - I received the sum of twelve guineas in May last, on Macarthy's account, for the purpose of his defence, out of which I was desired to fee Mr. Foster, and did fee him accordingly.  4th.  Did the said Cornelius Macarthy inform you that one Edward Welsh and one Mary Murphy, or one or both of them, would be necessary to be called in his defence at the trial? - He informed me he thought they would be; but after many consultations with himself and friends, I was convinced that Welsh only would benefit his cause.  5th.  Did the said Cornelius Macarthy inform you where and to whom the subpoenas should be sent for service; or did you ask the said Cornelius Macarthy where they or either of them was to be found? - He promised me repeatedly, in reply to my enquiries to ascertain the places of residence of Welsh and Murphy specifically, but up to the day of postponing his trial, that promise was not fulfilled, nor was it mentioned to me to whom the subpoenas were to be sent for service.  6th.  Did the said Cornelius Macarthy inform you that he would write to a Mr. Hurley, a publican at Campbell Town, when the subpoenas were issued, as he had promised to assist in sending down his witnesses? - I have no recollection of Macarthy making such a communication to me, and I believe he did not; but I do recollect Mr. Hurely calling on me before Macarthy's trial, and on going through his case, observing that Welsh was the only witness who could be of use, and he was fearful of him.  7th.  Did, or did you not, desire him not to write to the said Mr. Hurley, as you would write and instruct him yourself?  No; I communicated my opinion to the prisoner very fully after seeing Hurley in Sydney.  8th.  Did, or did you not, write to the said Mr. Hurley?  Never, I believe, on behalf of Macarthy till the postponement of the trial.  9th.  Did, or did you not prepare any brief for counsel on the part of the said Cornelius Macarthy?  I did not in writing myself prepare such brief, but the statement of Macarthy's case was not furnished to counsel until after I had frequently seen and advised with Macarthy.  10th.  Do you know, or can you state, who wrote the brief prepared for counsel in the case?  I cannot, but after many instructions and advices from Macarthy, and reasoning on the probability of his case, stated to me I was better prepared to press the facts upon Mr. Foster's attention, for he (the prisoner) varied upon what the facts were to the day of his cause being called on.  11th.  Have you, or have you not, paid any and what fee to counsel to defend the said Cornelius Macarthy's behalf, and at what time and to whom directed, and what course did you adopt to secure the service thereof? - I obtained a subpoena at the postponement of Macarthy's trial, on a person (a constable, I think,) observing to me where Welsh and Murphy were sometimes to be met with; this I enclosed in a letter with directions accordingly, after an interview with Macarthy, as obsrved [sic] upon in the interrogatory number.  13th, Was, or was not, the trial of the said Cornelius Macarthy postponed in consequence of his witnesses not attending, and not having been subpoenaed? - Yes; Macarthy, however, admitted to His Honor the Chief Justice that as they were in the habit of going about from place to place, he could not say where they were to be found, or words to that effect.  14th.  Did, or did not, Mr. Fisher, the Crown-Solicitor, under direction of His Honor the Chief Justice, issue a subpoena for the attendance of the said Edward Welsh and Mary Murphy, on the part of the said Cornelius Macarthy,, after the trial had been so postponed; and did not those witnesses attend at the trial of the said Crrnelius Macarthy, on the 12th of May, in consequence of having been served with copies of such subpoenas?  They did attend, but whether in consequence of subpoenas served on them through my agency, as stated in answer to interrogatory 12th, or on Mr. Fisher's, I know not.  15th.  Did, or did you not, on the morning of the 12 May last, (the day on which the said Cornelius Macarthy was tried,) state to Mr. Fisher, the Crown-Solicitor, that you had received a message from the prisoner Cornelius Macarthy informing you that he (the prisoner) was to blame for the absence of his witnesses, as he had not given you their places of residence or words to that effect; and did the prisoner send you such a message, and by whom and at what time; and if not to that effect, did you make any and what communication to Mr. Fisher?  I do not recollect having made such communication to Mr. Fisher, or any conversation to that effect, or to any other effect, and I know of no such message being sent to me by the prisoner Macarthy.  16th.  Did or did you not also state to the said Mr. Fisher that you had not seen the prisoner Macarthy since the postponement of his trial?  I do not believe I made any such statement.  I am the more confident I did not, because I guarded myself against holding any conversation with prisoner after his trial was postponed, excepting in the hearing and presence of the principal of the gaol, and I had then but one conversation with him, which turned principally on the probability of the witnesses being found as adverted to in the 12th Interrogatory, and as Mr. Keck is ready to bear witness I have no doubt.  17th.  Did or did you not request the said Mr. Fisher to communicate the subject of your said communication to His Honor the Chief Justice in order with a view to stop further proceedings against you as an Attorney of the said Supreme Court on the complaint of the said Cornelius Macarthy?  Most certainly not.  18th.  Did or did you not see the prisoner Cornelius Macarthy from the postponement of his trial up to the time you had that conversation with the said Mr. Fisher, and if so where, and at what time, and what conversation had you with him?  This I submit I have already answered in my reply to the 16th Interrogatory.  19th.  How much did you appropriate to your own use out of the money so paid to you by the said Cornelius Macarthy, and for what services do you claim the same, and state specifically what these services were?  I appropriated the sum of seven guineas to my use as my retainer for my visits, frequent and exceeding more than five, for my interviews with his friends on his case, for my attendance at the Attorney-General's office, and on Mr. Foster, and my attendance also on his trial, and for studying his case generally.

The Queen v. Mc'Keon. - In this case an attachment had been issued against Mr. Rowe, who had been called upon to answer certain interrogatories which were now read by the Clerk.

1st.  Are or are you not an Attorney of the Supreme Court of New South Wales?  I am. - 2nd.  Were you employed as an Attorney for one Archibald Mc'Keon alias Campbell, who was committed on a charge of felony, and if so at what time?  I was employed previously to and acted for him (Mc'Keon) in the last April Sessions. - Did or did you not receive any sum or sums of money from the said Archibald Mc'Keon on is account, and if so what amount, when and for what purpose?  I received the sum of £32 from a Mr. Mitchell, merchant, of Sydney, in consequence of a note of his (Mitchell's) handed to me by the said Mc'Keon alias Campbell, out of which I was to deduct ten gui[n]eas for the purpose of his (Mc'Keon's) defence. - 4th. Did or did you not prepare any brief or statement for counsel or advocate on the part of the said Archibald Mc'Keon?  I prepared my own brief as I was particularly desired to act as attorney and counsel for the prisoner. - 5th.  Do you know or can you state who wrote the brief or statement prepared for the prisoner's defence in the said case?  I acted according to my own discretion in eliciting this statement or brief. - 6th.  Did or did you not know that the said Archiblad Mc'Keon was charged with stealing a large sum of money from the person of a man named George McDowall?  I believe that to have been the charge. - 7th.  Did or did you not know or hear that in the depositions taken before the Sydney Police Bench, in February last it appears that a sum of £37, supposed to be part of the produce of the money so stolen from the said George Mc'Dowall, was deposited by the said Archibald Mc"Keon with Mr. F. Mitchell, of Sydney, merchant?  Never until I heard them read in the Supreme Court did I know it appeared in such depositions, nor do I believe I ever before then heard it. - 8th.  Did or did not the said Archibald Mc'Keon give you an order on the said Francis Mitchell, and if so when and for what amount and for what purpose?  Yes, to the amount of £32 to defend him and for other purposes. - 9th.  Did you receive any and what sum from the said Francis Mitchell on account of the said Archibald Mc'Keon?  Yes, £32. - 10th.  Did or did not the Attorney-General and Crown Solicitor apply to you to know whether you had received any and what sum of money from the said Francis Mitchell on account of the said Archibald Mc'Keon, and if so furnish an account of the same?  I stated at once that I had received the £32 above referred to the remaining part of this interrogatory I submit is answered in the next. - 10th.  Did or did you not admit to the Crown Solicitor and to Mr. Edward Atkins, the Attorney-General's clerk or either of them, that you had received a sum of £32 from the said Francis Mitchell on account of the said Archibald Mc'Keon, and state that you had received that sum to defend the said prisoner and that you were not bound to furnish any account of the same?  I stated that I had so received that amount for the purpose mentioned, and to Mr. Atkins and I believe also to Mr. Fisher, the Crown Solicitor, I also said that the greater part had been expended (except a small balance) although at that time I did not consider myself bound to furnish the items. - 12th.  Did or did you not on the 27th of June last, furnish an expenditure of the said sum of £32 to the Attorney General?  I did of the greatest part of that sum including all that he claimed by his affidavit - 13th.  Was or was not the paper writing hereto annexed and marked with the letter A, on account of the statement so made by you to the Attorney-General?  It was. - 14th.  Is or is not that account and statement correct and true? - It is, he not being able except by his own affidavit to claim some small items, he did not include them in the affidavit. - 15th.  Have or have you not since that time made an affidavit and filed the same I the Supreme Court, stating that you still held as a balance a sum of £2 10s., or of any and what sum on account of the said Archibald Mc'Keon?  I have, because not being able to find the parties to whom were paid small sums and Mc'Keon being convicted, I forbore to mention them in my affidavit. - 16th.  How much did you appropriate to your own use out of the money so paid to you and for what services do you claim the same, and state specifically what those sums were?  I claim ten guineas as the fee agreed upon for my own services at and before the Quarter Sessions when prisoner was tried, in my double capacity of attorney and counsel at his special instance. - Is it customary for attornies of this Court to buy clothes for prisoners in Gal under a charge of felony, and generally as agents, but if attornies have money in hands they should act as agents if required, by paying buts on them as in the case of Mc'Keon. - 18th.  Were or were you not also empowered by the said George Mc'Dowall to defend him on a charge of felony?  I was employed but as attorney only - 19th.  Did or did you not know that the said George Mc'Dowall was committed on suspicion of having stolen a horse or horses?  I think as far as I can recollect such was the charge.  - 20th.  Did or did you not know that the money so proved and have been stolen by said Archibald Mc'Keon from the said George Mc'Dowall, was the supposed produce of the sale of the horse or horses so charged to have been stolen and sold by the said George Mc'Dowall?  I did not, nor had I the least idea of it (having received the amount by a note of Mr. Mitchell's from him ) until after the greatest part had been paid away, and after the trial of Mc'Keon.

The Chief Justice said, that the Court would take time to consider the answers and ordered Mr. Rowe to attend the Court on Saturday next.

 

Dowling C.J., Burton and Willis JJ,, 21 July 1838

Source: Sydney Gazette, 24 July 1838[ 7]

 

The Queen v. Rowe. - The Chief Justice said that the Judges had fully considered the case, and as he (the Chief Justice) had been chiefly instrumental in bringing this matter forward, Judge Burton would deliver the opinion of the Court.

Mr. Justice Burton said that there were two matters of contempt charged against Mr. Rowe, the first was in the case of a man named McCarthy, who was convicted at the last Criminal Session of a capital felony, and the other in the case of Archibald McKeon or Campbell, tried before the Court of Quarter Sessions in April last.  The second complaint he would deal with first; it was in substance that Mr. Rowe had received a large sum of money from McKeon, which, it was apparent, was part of the money stolen by McKeon from a man named Macdowell, who Mr. Rowe also defended, and that it was the produce of two horses stolen by Macdowell, and that after the conviction of Crown Solicitor with an account of the expenditure when required to do so; after fully considering the case, on the affidavits and answers to the interrogatories that had been filed, as Mr. Rowe had positively denied that at the time he received the money he had the slightest idea that it was the produce of the stolen horses, and as there was no evidence to the contrary, the Court considered that he had cleared himself from the charge and discharged him from the contempt, at the same time ordering him to pay over to the Sheriff, for the benefit of the Crown, the balance of £2 15s. acknowledged to be in his hands.  The substance of the first charge was that after receiving twelve guineas to conduct the defence of a person named McCarthy, he had neglected to take steps to procure the attendance of witnesses for the defence, and that when he was brought up for trial, the Chief Justice remanded the prisoner and desired the Crown Solicitor to enquire into the circumstances; Mr. Rowe made a false statement to that officer with the intention of deceiving the Court.  (His Honor here recapitulated the whole of the circumstances as already detailed.)  Mr. Rowe, in his answers, had not positively denied stating to Mr. Fisher that he had not seen McCarthy, but that McCarthy had sent him word that it was his fault that the witnesses had not arrived; he had said that he could not recollect it, and if he had said it he was confident he could not have intended that the words should be repeated to the court, but Mr. Rowe could not be permitted to explain the words away in that manner; if he could not recollect using them the court must be allowed to put its own construction upon them, and that was that he was conscious that the charge which had been made against him was just, and that he had attempted to get rid of it by asserting falsehoods.  Mr. Rowe had sad, that McCarthy told him the names of the witnesses who would be required, although he did not tell him where they resided, but Mr. Rowe had not catigorically [sic] answered the interrogatory of, ``did he ask McCarthy where they were to be found;" he merely stated that he did not tell him, which might be true, for perhaps Mr. Rowe had never gone near him after he received his retainer.  Altogether the court considered Mr. Rowe's explanation unsatisfactory, and that he stood convicted of a gross neglect of duty to his client, and also of having endeavoured to evade the consequence of that neglect, by making a false statement, with the intention of deceiving the court.  He (Mr. Justice B.) and his brother Willis, felt indebted to the Chief Justice for having brought this matter forward, and the Court felt under an obligation to the Attorney General and Crown Solicitor, for the manner in which they had prosecuted the case after it was put into their hands; and he wished that the steps the court was about taking, would assure the profession that their attempts to cleanse the court of improper characters, will always meet with support.  Whenever a case is brought before the Judges, they will always do their duty.  They could not but be sensible that complaints are often made against the profession generally, which ought to be preferred against individuals; but unless the parties who were aware of the facts would bring them under the notice of the court, the Judges could exercise no authority in the matter, but whenever a case was brought before them, they would deal with it as the interests of the public might require.  In this case the party convicted of discreditable conduct, had been on the rolls of the court for fourteen years, practising in the various branches of the profession, but latterly only on the criminal side of the court.  When addressing the court, Mr. Rowe had stated that he was known to all the Judges, and had received a complimentary letter from one of them; but he (Mr. B.) could only say, that his conduct showed he was not deserving of the estimation in which he considered he had been held, and must have been capable of blinding the court and acting very craftily, as it was impossible that a person could have deserved to be held in high estimation who could act as Mr. Rowe had done.  Taking all the circumstances in to consideration, the court considered that Mr. Rowe neglected his duty to his client, and behaved so very dishonorably, that he was not a fit person to remain on the roll of attorneys, and ordered him to be struck off accordingly.

 

Notes

[ 1]See also Sydney Gazette, 19 and 21 June 1838.  For the United Kingdom bill which liberalised the provision of legal counsel for prisoners, see Australian, 14 June 1836; Australian, 17 February 1837; and on the delay in its adoption in New South Wales, see Bourke to Glenelg, 24 July 1837, Historical Records of Australia, Series 1, Vol. 19, p. 44.   For a murder case where the prisoner had counsel who was not allowed to speak for him, see R. v. Smith, Sydney Gazette, 6 and 9 August 1836.  The prisoner put in a very long defence, saying that counsel had not been allowed to speak for him.

On this change in the law, see also Glenelg to Gipps, 26 October 1838, Historical Records of Australia, Series 1, Vol. 19, 631.

[ 2]See also Sydney Herald, 25 June 1838; Sydney Gazette, 26 June 1838.

[ 3]See also Sydney Herald, 25 June, 1838; Sydney Gazette, 26 June 1838.

[ 4]See also The Sydney Herald, 2 July, 1838; Australian, 3 July 1838.

[ 5]See also Australian, 13 July 1838.

[ 6]See also Sydney Herald, 16 July 1838.

[ 7]See also Sydney Herald, 23 July 1838; Australian, 24 July 1838.

Published by the Division of Law, Macquarie University