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

Ex parte Nichols [1839] NSWSupC 76

magistrates, action against - legal profession, appearance before magistrates - mandamus - reception of English law, date of reception - reception of English law, Prisoners' Counsel Act - criminal procedure - stage coach - supervision of inferior courts - criminal defendants, right to counsel

Supreme Court of New South Wales

Willis J., 12 October 1839

Source: Sydney Herald, 14 October 1839[1] 

Ex parte G. R. Nichols. -- This was a rule nisi granted by Mr. Justice Willis on Tuesday, calling upon H. C. Antill, Esq., to shew cause why a mandamus should not be issued, compelling [h]im to hear counsel in a case in which he adjudicated as a Magistrate.  As there was some doubt whether a single Judge sitting at nisi prius, has authority to grant a rule of this description, the application was renewed, and the rule nisi granted returnable on Saturday next.

 

Dowling C.J., Willis and Stephen JJ, 26 October 1839

Source: Sydney Herald, 28 October 1839

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

Ex parte G. R. Nichols. -- This was an application for a mandamus, directing H. C. Antill, Esq., to hear Mr. Nichols, as an advocate for a person named Morris, charged with carrying more passengers by a mail-coach than is allowed by law.

The Attorney-General now appeared to shew cause against the mandamus being granted.  He contended that by the case of Collier v. Hicks, (2nd Barnwell and Alderson) it is expressly decided that no person has a right by law to act as advocate upon the trial of informations before Magistrates unless permissi[o]n is given, and that every Court has a right to make its own rules, and decide whether or not advocate shall be heard.  This decision he considered settled the law before the passing of the Prisoners' Counsel Act, and in this Act he contended that the word declare could not be considered to have its usual sense.  Summary convictions are not known to the common law, they are an infringement upon it and break down the privilege of trial of Jury, and therefore they can have no connexion with common law.  If the Prisoners' Counsel Bill is not in force in this Colony, the Magistrates are not obliged to hear advocates, although it is to be wished that the Magistrates would act upon the spirit of it.  The Prisoners' Counsel Act he contended is no more in force in this Colony than the Acts substituting transportation for the punishment of death in certain cases would have been if the Legislative Council had not adopted them.

Mr. Purioy followed on the same side.  He contended that the magistrates have a right to make such rules for their own guidance, as they, in their discretion, may think fit, provided the rules are not inconsistent with nor repugnant to any law or usage.  Secondly -- That there is no hardship to the subject and no failure of justice by this rule; but, on the contrary, it is warranted by sound discretion; and thirdly, that the provisions of the Prisoners' Counsel Act are not applicable to this Colony.

Mr. a'Beckett appeared in support of the rule.  He contended that the Prisoners' Counsel Bill is in force in this Colony per se; and that if it is not in force, the Judges are bound to look at it to see what the law really is.  The Act confers a constitutional privilege, and it is absurd to say that the benefits stopped in 1828, at the passing of the New South Wales Act, and that persons are not entitled to have the benefits of any constitutional privileges conferred since that date because the Legislative Council in this Colony will not adopt it.

Mr. Windeyer followed on the same side at considerable length.

Their Honors took time to consider their judgment.

 

Dowling C.J., Willis and Stephen JJ, 28 October 1839

Source: Sydney Herald, 30 October 1839[2] 

 

Exparte G. R. Nichols -- This was an application for a writ of mandamus to be directed to Henry Colden Antill, Esq., one of Her Majesty's Justices of the Peace, in the district of Stonequarry, commanding him to allow Mr. G. R. Nichols, one of the Attornies of this honorable Court, to conduct the defence of his client, one Charles Morris, to an information which came on to be heard before the said Justice on the 5th instant; against Morris, for conveying more passengers on his public stage coach than is allowed by the local ordinance, 6 Wm IV., No. 2, s. 16, it being sworn that the Magistrate refused to allow Mr. Nichols to conduct the defence of Morris, as his advocate on that day, but adjourned the further hearing of the case until the opinion of this Court should be taken as to the right of an Attorney to conduct the defence of a client informed against under a penal Act giving Justices a summary jurisdiction.  The case was argued at great length on Saturday, by Messrs. a'Beckett and Windeyer, on the part of the applicant, and the Attorney-General and Mr. Purifoy, on behalf of the Magistrate.  The Court took time to consider the case, and this morning their Honors delivered judgment.

The Chief Justice said, the question involved in this proceeding is one of considerable public importance. It is admitted that had the Act of the Imperial Parliament, 6 and 7 Wm. IV., c. 114, entitled ``An Act for enabling persons indicted for  felony to make their defence by Counsel or Attorney," been adopted by the Legislature of this Colony, no doubt could have been entertained on the question.   It is matter of history that by a despatch from Lord Glenelg, the Secretary of State, dated 5th of September, 1836, addressed to Sir Richard Bourke, that Governor was desired to take measures for extending to the Colony under his Government the provisions of that statute. This requisition (which manifests, at all events the imperative sense of Her Majesty's Government of the applicability of the Act to this Colony), would have been complied with, and a bill was, in fact, brought before the Legislative Council, in 1837, with that object, but from considerations quite distinct from the abstract propriety extending the law to this Colony, it was deemed expedient to postpone its adoption until Circuit Courts should be established.  It is also a matter of history that this law has been adopted by the Legislature of Van Diemen's Land, and is now in full and satisfactory operation, probably because there were not the same reasons existing in that Colony for abstinence, that exist in this. The question is, whether, notwithstanding the Act of the Imperial Parliament has not been adopted in the Colony, there is anything to restrain this Court from holding that a person amenable to the summary jurisdiction of Justices of the Peace, under a local ordinance, inflicting penalties, has a right to defend himself by Counsel or Attorney. This question has never been solemnly decided by this Court. It is true that about two years since, a mandamus was applied for (no cause being shewn) to the Justices sitting in Quarter Sessions, at Bathurst, to rescind a rule which they had made to prevent Attornies being heard as Advocates in that Court. This Court having reference to the statute 9 Geo. IV., c. 83, s. 19, was of opinion, until the contrary was shewn, that the Justices had no power to make such a rule (even if not repugnant to the laws of England,) inasmuch as the right of making rules of practice for Courts of Quarter Sessions was vested in the Governor with the assistance of the Judges of the Supreme Court; and as it did not appear that the rule in question had such sanction, the rule nisi was issued, without any resistance on the part of the Justices. The only other case bearing on the question, occurred in the commencement of this term, when a motion was made, by Mr. Therry, for a rule nisi for a mandamus, on the part of Mr. John Dillon, an Attorney of this Court, to be directed to a Magistrate at Port Macquarie, to compel him to hear that gentleman, on behalf of a client summoned to the Bench, under a penal ordinance. No decided opinion was given on the question, but two of the Judges thought a prima facie case was made out, and granted a rule to shew cause, in order that so important a point might be fully discussed and determined.  When the case was called on for argument on Saturday, the 5th instant, no one appeared in support of the rule, and the matter was struck out of the paper. The question having been now distinctly raised, and ably argued on both sides, we are in a condition to determine it. Until the decision of Collier v. Hicks, 2 Barn. & Adol. 663, in 1831, it was considered a moot point, whether a party summoned before Magistrates sitting judicially, to administer justice in a summary manner under a penal statute, had a right to the benefit of professional advocacy and assistance in the conduct of his full defence. It is true, indeed, that in Rex v. the Justices of Staffordshire, 1 Chitty's Report 217, Mr. Justice Bayley did intimate, as an ``arbiur dictum," that an Attorney has no right to be present assisting a defendant charged with an information on the game laws; but that was never considered as law, until the case Collier v. Hicks, which decided that no person has by law a right to act as an advocate on the trial of any information before Justices of the Peace, without their permission. All the decisions of the Courts at home upon this subject, as far as they went, left the concession of the privilege to the indulgent and courteous discretion of the Justices, even though they were sitting judicially in an open Police Court. We are now to consider whether Collier v. Hicks is obligatory on this Court, as an exposition of the law of England. After the passing of the late Act, 6 & 7 Wm. IV., c. 114, it is clear that that decision is no longer binding upon Her Majesty's subjects in the mother country. The law, as it is propounded by the Judges, has been in fact, repealed by Parliament, and the decision overturned by the highest constitutional authority.  The second section of that Act is in these words:-- [``]And be it further declared and enacted, That in all cases of such conviction, persons accused shall be allowed to make their full answer and defence, and to have all witnesses examined and crossexamined by counsel, &c."  Can we, therefore, now consider Collier v. Hicks as controlling our judgment, after the Legislature has thus overruled it?  Although the Repealing Act has not been adopted in this Colony, it appears to me, that we are not now fettered by a decision which is no longer law, and that we are at liberty to decide this question upon principle, and as if no such decision had ever been made.  Without at this moment adverting to the question whether this Act is ipso facto to be carried into operation in this Colony, not being formally adopted by the Local Legislature, I think it could not be maintained, that the Judges of this Court, sitting in a Colony peculiarly English, and forming an important portion of the British Empire, must shut their eyes to an Act of Parliament passed since the 9 Geo. IV. c. 83, up to which time all laws and statutes in force within the realm of England, it is enacted thereby, shall be applied in the administration of justice in this Colony.  Assuming that we might not be bound to take judicial notice of it, because not formally adopted by the Local Legislature, I take it that we might have reference to it in order to ascertain what the law of England is on this particular subject, and enforce the principle of it, if not repugnant to any sound attributes of justice in this Colony.  But for the passing of the Prisoners' Counsel Act, this Court would no doubt have bowed with deference to the decision alluded to, though decided since the 9 Geo. IV, c. 83, but I apprehend that, in the altered state of the law, we are not now fettered by that judicial position of the point, and might deal with this case as if there had been no decision at all upon the question, and if this were a case of the first impression, and to be decided on principle. Independently of any Act of Parliament, I take it to be a principle of the law of England and of natural Justice, that every defendant, whether in a civil or criminal judicial proceeding (summary or not,) has a right to be fully heard in person, in defence of his property, his fame, his liberty, or his life.  The question then is, whether this is to be restricted to the right of being heard only in person, and may not be delegated to a professional advocate properly qualified, and conducting himself with that respectful decorum which ought to characterise the proceedings of every court of justice.  The right of being heard by counsel, it is not disputed, is inherent in every party amenable to the jurisdiction of superior courts of justice, and was only limited until lately in criminal courts, to the extent of restraining the advocate from addressing the jury on the evidence.  The temperate and orderly proceedings of every tribunal obviously require the concession of this privilege, independently of the higher considerations of impartial justice.  I am unable to discover any sound reason for making any distinction in principle between a superior and an inferior court, in the all-important duty of administering justice.  If it be necessary to allow this privilege in the higher courts, how much more cogent are the reasons for its concession in inferior jurisdictions, especially in this colony, where magistrates, sitting judicially in remote districts, are called upon to enforce in their summary jurisdiction a vast variety of penal laws, without the advantage of professional assistance.  It is no disparagement to their honour, their integrity, or their general good sense and intelligence, to imagine the possibility of their deriving advantage from the assistance of an advocate duly qualified in the satisfactory administration of laws, often complicated, and involving to the parties concerned, important rights of property and liberty.  It may be, as Lord Tenterden says, in Collier v. Hicks, ``that in general the ends of justice will be sufficiently well attained in summary proceedings before justices, by hearing only the parties themselves, and their evidence, without that nicety of discussion and subtlety of argument which are likely to be introduced by persons more accustomed to legal questions;" but these considerations ought not to outweigh the recognition of a right, which in some instances may be of vital importance, especially so in those cases where the decision of the inferior court is final and conclusive, both of law and fact.  Time was, (and that at no great distance,) when, by the law of England, in criminal cases, the party accused had not the privilege of having his witnesses examined on oath.  The enlightened morality, however, of modern legislation has gradually ameliorated, our criminal code, and the late act of the Imperial Parliament, although not a crowning step, has vindicated the majesty of justice in all her temples and given vigour to her attributes.  It is not necessary to discuss the import of the word ``declared," in the second section of the Prisoners' Defence Act; it is sufficient for the purpose of the present case, to recognize, that by the now law of England, ``in all cases of summary conviction, persons accused shall be admitted to make their full answer and defence, and to have witnesses examined and crossexamined by counsel or attorney."  Acting upon the spirit of that law, though not formally adopted by our local legislature, and there being now no decision of the courts at home to fetter our judgment, I should have been of opinion that the rule for a mandamus, in the present case, ought to be made absolute.  But, although it is not necessary to the decision of this particular case, to determine the general question, so ably argued, as to the operation of the statute in this colony, without the express adoption of it by an ordinance of the local legislature, it may be proper to intimate our opinion upon it, as we are now on the eve of a criminal session of the Supreme Court, when in all probability the question might be raised for discussion before a single judge, who would be unwilling to determine it without the assistance of his brethren, and thus inconvenient delay in the proceedings of the Court might arise.  By the New South Wales Act, 9 Geo. IV, c 83, sec. 24, all laws and statutes in force within the realm of England, at the time of passing that act, not being inconsistent therewith, shall be applied in the administration of justice in the courts of this Colony, so far as the same can be applied within the same.  This was a peculiar provisions purposely introduced to remove all doubts of the applicability of all the fundamental laws of England to this newly planted Colony, so far as they could be applied.  In that elaborate Act, so often renewed, I find nothing restrictive of the applicability of other fundamental laws in the administration of Justice, which have been since passed by the Imperial Parliament. There being nothing to restrain the Courts of the Colony from applying such laws, the reasonable inference is that the legislature intended that they also should be as much in force, (subject to the same modification), as those which were in force in England prior to the 28th July, 1828, the date of the Act.  It is true, that by the same act (Sec. 21), the Governor, with the advice of the Legislative Council, has power and authority to make laws and ordinances for the peace, welfare, and good government of the Colony; but this is obviously the power only of making local, not fundamental laws; for the section enacts the proviso that ``such laws and ordinances shall not be repugnant to this act, &c., or to the laws of England."  There is nothing said about the power of adopting by local ordinances any fundamental laws affecting the personal rights of Her Majesty's subjects, already passed by the Imperial Parliament, which can be applied in the administration of justice in the Colonial courts.  It appears to me, therefore, that by necessary implication, any fundamental law, affecting the personal rights of British subjects, for the due administration of justice, passed since the 25th July, 1828, not repugnant thereto, is in force in this Colony, as far as local circumstances will admit, without the formal adoption of them by the local legislature.  The right of appearing by counsel or attorney, as conveyed by the late act, I regard as a fundamental personal right.  The laws of this Colony are strictly English, or are not or are not contrary to the law of England or the Act 9 Geo. IV. c. 83, except such as peculiar local circumstances may have justified a departure therefrom.  In the administration of justice in the Courts of this Colony, we have been constrained to act in innumerable instances upon judicial expositions of the law of England by the Courts at Westminster, decided since the passing of the New South Wales Act, but nobody ever dreamed that it was necessary to have such decisions adopted by ordinances of the local legislature, to give them validity in the Colonial courts.  Shall therefore a fundamental law regarding a personal right for the due administration of justice, enacted by the Queen, Lords, and Commons, in Parliament assembled, be less obligatory upon us, for want of formal adoption, than were judicial decisions?  But for the Prisoners' Counsel Act, we shall have felt ourselves bound by the decision of the judges in Collier v. Hick[s], without the adoption of the local legislature.  That decision has been virtually overruled by Parliament, which has declared and enacted a different exposition of the law of England, upon a fundamental principle in the mode of administering justice; and as I cannot find any technical rule restraining us from adopting and acting upon the law of England as it is now enacted, I have no hesitation in holding that the provisions of the Prisoner's Counsel Act, regarding as they do the sacred interests of justice, are in force in this Colony, so far as they can be applied, and there is local machinery to set its principles and provisions in operation.[3] 

 

Source: Australian, 31 October 1839

 

Mr. Justice Willis. --  Before I state the grounds which induce the conclusion that in this case I have arrived at, I wish to notice some of the arguments at the bar, which, thought not, perhaps essentially necessary to be taken into consideration in deciding this matter, seem to me of too much general importance to be admitted to pass without observation.

The argument urged by Mr Purefoy (a gentleman who, if I have any powers of vaticination, will be a most useful member of the Australian bar) against the policy of permitting counsel to defend an accused party, has had the sanction of the highest authority.  Sergeant Hawkins, after stating the rule (vide P. 2., ch. 39, p. 365, s. 1, P.C.), says, with reference to the rule I have just read -- ``This indeed many have complained of as very unreasonable; yet, if it may be considered, that generally everyone of common understanding may as properly speak to a matter of fact as if he were the best lawyer, and that it requires no manner of skill to make a plain and honest defence, which, in cases of this kind is always the best; the simplicity, the innocence, the artless, and the ingenious behaviour of one whose conscience acquits him, having something in it more moving and convincing, than the highest eloquence of persons speaking in a cause not their own.  And if it be further considered, that it is the duty of the Court to be indifferent between the King and prisoner, and to see that the indictment be good in law, and the proceedings regular, and the evidence legal, and such as fully proves the point in issue, there seems no great reason to fear but that generally speaking, the innocent, for whose safety alone the law is concerned, have rather an advantage than a prejudice in having the Court their only counsel. Whereas, on the other side, the very speech, gesture, countenance, and manner of defence of those who are guilty, when they speak for themselves, may often help to disclose the truth, which probably would not so well be discovered from the artificial defence of the others speaking for them."

I venture, however, with all respectful humility, to dissent from so high an authority, and to think the modern doctrine, as enacted by the Prisoner's Counsel Bill, much more reasonable and just; but because I do think so, it by no means follows that Mr Purefoy was not perfectly warranted in pressing his able and ingenious argument on the notice of the Court.  On the other hand, my friend Mr a'Beckett, read some very able comments of a modern author, on the report of the Commissioners of legal inquiry, shewing the expediency of the recent Act of the British Parliament. What, however, may be expedient for the legislature to enact, may not be lawful (unless it may be in strict accordance with existing law) for a Judge to decide.  I entirely agree with that eminent lawyer, who, in the argument I shall have hereafter to refer to, most justly said, ``Let one suppose that, in consequence of some grievous treason, it is necessary to try some offenders by specie I commission, or that such violation of the public peace, in murders and robberies, occurred, as made a speedy conviction and execution of the offenders not only salutary but essential to the public good -- or that, under a military commission, it was necessary that the General should be entrusted with extraordinary powers -- should the most imminent necessity, the most manifest peril and jeopardy to the salus publica, authorise any of the learned Judges, or any commander, either civil or military, to assume such authority?  Or could it amount to anything in the nature of a legal excuse, unless the power was expressly given by commission from the Crown?  I do state that, having looked anxiously into many books to see whether necessity would authorise any person to act in such a case, although under the influence of the purest intentions, there is no authority or usuage [sic] which warrants such an assumption, and practice is in every respect against it."  (See Mr Nolan's argument in Sir Thomas Picton's case, H. T., vol. 3, p. 954).  In this and every other case, therefore, where I am not bound by a previous decision of this Court, I shall endeavour to act upon the law as I find it, and not upon what has been called ``the tyrant's plea," viz., necessity or expediency.  My friend, Mr Windeyer, attempted to draw a parallel between the Prisoner's Counsel Bill and the 32nd Geo. III., c. 60, commonly called the Libel Act.  I doubt much that the parallel will hold.  It is but justice, however, to my learned friend, to state, that by the Libel Act,  ``it is declared and enacted," as therein mentioned.  Thus, Lord Coke, I believe, had long before laid down as law, ``that the right of the Jury to decide the whole issue applied equally to criminal and civil causes," (1 Inst. 226 and 227). It is said that when the statute passed, no doubt existed as to civil cases, and the Act declared the doubts which were suggested as to criminal cases to be contrary to law.  The statute at once professed to be declaratory, and (though strongly opposed by Lord Thurlow and Lord Mansfield) was suffered to pass as a declaratory Act.  Mr. Fox, in his introductory speech, expressly characterised it as a declaratory bill: he protested against ``attempting anything like innovation;" he reprobated the doctrine of the Judges, with regard to Juries being only judges of mere fact, as of ``modern date;" and when the bill was committed, he called for the sense of the house on this very point which put the matter beyond doubt.  ``If the committee were clear as to the law on the subject, he thought their wisest and most proper measure would be, to enact a declaratory law respecting it.  If the committee were of opinion that the high authorities (namely, the Judges) on the other side of the question made the law doubtful, they might settle the law on the subject in future, without any regard to what it had been in times past."  (See Fox's Speech, vol. 4, p. 245262).  The bill passed as a declaratory law.  Dr. Bissett, in his life of George III, vol. 2, p. 823, says -- ``This bill was not debated as a party question, but as a subject of existing law, justice, and constitutional rights."

Mr Justice Stephen asked, in the course of the argument, whether, if the Prisoner's  Counsel Bill was per se in force in this colony, Sir John Campbell's Bill for the Abolition of Imprisonment for Debt would not have been also in force previously to its express adoption by the Legislative Council, on the very same principle?  In addition to what I then ventured to read as explanatory of my view on this subject, I would now take leave to call His Honor's attention to what strikes me as an essential distinction between the Bill for the Abolition of Imprisonment for Debt and the Prisoner's Counsel Bill.  The former abolishes a power that was, for the most part, put in motion between subject and subject, with reference to property; the latter confers a privilege on the subject against the power of the crown with respect to the person -- it adds to the great constitutional right conferred by Magna Charta, ``that no freeman shall be apprehended, or imprisoned, or banished, or in any other manner disparaged, except by the legal judgment of his peers, or by the law of the land:" it adds to this, I say, that no such judgment shall pass without all freemen being permitted previously to defend themselves by counsel.

To proceed, however, to the question more immediately before us. 

This application is for a mandamus, to compel a magistrate to hear an attorney on behalf of a party accused of an offence, which, if proved, would subject him to a penalty on summary conviction.  At common law a person accused of felony was not entitled to make full defence by counsel; but it is contended that the principles of the common law were in favour of making such a defence by counsel or attorney in cases of summary conviction.  Summary convictions, however, were unknown to the common law; how, therefore, could it be applicable to circumstances to which it is a stranger, the common law itself being nothing but immemorial custom, applicable to certain well known facts?  I believe the decision in the Court of King's Bench, in Col1ier v. Hicks (2 B. and A. 663) to have been perfectly legal, and that previously to the Prisoner's Counsel Bill, it was entirely discretionary with the magistrates to hear or not hear an attorney on behalf of either the informer or the accused, in cases like the present.  It was on this ground, and without reference to the Prisoner's Counsel Bill, that I differed from my colleagues in exparte Dillon.  I admit that there was a seeming inconsistency in a party who had committed an assault, for instance, being permitted to make full defence by counsel or attorney, if tried at Quarter Sessions before several magistrates and a jury, and depriving him of that privilege, if about to be dealt with for the same offence, by two magistrates only, under the Statute 9 Geo. 4, c. 31, s. 27.  An anomaly similar to that which prevails here in the case of the unfortunate convicts, who, if tried before the Supreme Court, hare the advantage of trial by Jury, and yet, if brought before the Court of Quarter Sessions for a like offence, may be dealt with by the Magistrates in a summary manner.  The Prisoners' Counsel Bill having become the law of England, the point now for decision is, whether, although this law has passed since the statute 9 Geo. IV, c. 83, for the administration of justice in this colony, and has not hitherto been expressly adopted by the local legislature, that which is now become a fundamental constitutional personal right of British subjects, can be denied them in this colony?  The Prisoners' Counsel Bill is, I think, as much the birthright of an Englishman as the Magna Charta, the Habeas Corpus Act, the Bill of Rights, or the Act of Settlement.  I agree with Mr Nolen in his most able argument in Sir Thomas Picton's case (State Trials, ed. Howell, vol. 30); and I consider the authorities he has cited indisputable, and the inferences he has drawn from them in a great measure applicable to the present point, and unanswerable.  When the British sovereign goes from England, his accompanying subjects are entitled to the benefit of the English law.  When the Court of King's Bench travelled into Scotland with Edward I., it administered justice in Scotland, not according, to the Scotch law, but according to the law of England.  It is manifest, therefore, that the circumscribed limits of colonial laws cannot prevail against the law of England in such case, and that the laws of England are not so confined to that Kingdom, but that there are circumstances in which they extend throughout the British dominions, and even beyond them.  Thus, by the statute 33 Henry VIII., c. 23, murderers, or persons suspected of murder, after examination by three Privy Councillors, may be tried by Commissioners, at such place as may be appointed, `` in whatsoever other shire or place within the King's dominions, or without, such offences were done or committed."  If, then, for instance, as was well put by Mr a'Beckett, the seven unhappy men who were lately tried and executed in this colony for a most wanton and barbarous murder of a number of the aboriginals, had, in consequence of the removal of the Queen and the Queen's Bench into this colony, been tried before that Court, or had been tried by Commissioners, appointed under the statute of 33 Henry VIII., c. 23, in either of such cases the prisoners must have been tried, I conceive, according to the law of England, as it existed at the time of such trial, and would have been entitled to make full defence by counsel, a privilege which (possibly, under an erroneous impression) was not claimed by them, but had it been claimed and accorded (however manifest the guilt was of these unfortunate men, in my mind, at least), who can say what might have been the effect of an impassioned and eloquent defence by counsel on the minds of the Jury?  I mention this, merely by way of illustration of the question which I consider to be now at issue -- a question which, I repeat, appears to me to be no less than this: are the personal rights, those personal rights which are the fundamental, constitutional, and inherent birthrights of British subjects owing allegiance to the British crown (personal rights, I say, as contra-distinguished from rights connected with the enjoyment of property), to be denied them within the British dominions, more especially in a colony like this, which is by express statutory regulation to be governed by the laws of England?  I at once admit (as it is stated by Mr Howard, in the introduction of his valuable work on colonial law, p. 10), that according to the principle of the decision by the Privy Council of the case, in 2 P. Williams, p. 75, ``it follows that in Barbados the Leeward Islands, the Bahamas, and the Bermudas, all of which were original settlements of British subjects, the common law of England, and all statutes of the British Parliament applicable to their situation and condition, passed previously to the islands being respectively so settled, and having a local legislature of their own, are in force, except such as have been varied or renounced by their respective local governments."  On the word ``previously" Mr Howard subjoins the following note, which appears to have been extracted from Pownall's Administration of the Colonies, p. 128:-- ``Nay, further, every Act of Parliament (e.g.), the bill of rights (7 Wm. III.) passed since the establishment of the colonies, which respects the general police of the realm, or the rights and liberties of the subjects of the realm, although without the intervention of express consent of their own respective legislatures or representatives hath been considered, and I may venture to say adopted, as a part of the law and constitution of those countries."  The principle on which this is based is, I think, fully explained in the able and irresistible argument of Mr Nolen, in Sir Thomas Picton's case, already alluded to, which also clearly (to me, at least) shews the grounds on which, in the Island of Nevis, the writ of habeas corpus is obtained both at common law, and in favour of liberty by the Act of Charles II., though that Act passed long subsequently to the legal settlement of the island. (Vide Clarke's, Colonial Law, p. 157).  I may here remark, simply as a matter of fact, and not by way of argument, that in Grenada, where the Court follows the laws and rules of the Crimina1 Courts in England; and in the Criminal Courts of Tobago, Jamaica, and the Bahamas, where also the English law, and rules of practice prevail (see Clarke's Colonial Law, under these severa1 heads), prisoners are allowed to make full defence by counsel.

The statute of 9 Geo. IV., c. 83, after having previously enacted that no laws made by the Local Legislature should be repugnant to the laws of England, provides that all laws and statutes in force within the realm of England, at the time of passing that Act, shall be applied in the administration of justice in this colony -- a provision which, being in strict accordance with the decision reported by Peere Williams 2 P. Wms. 75, must, I apprehend, be taken with precisely the same limitation. This indeed is fully proved by the following example:-- The Act 10 Geo. IV, c. 7, for the relief of His Majesty's Roman Catholic subjects, though containing a provision that the oaths therein mentioned should be taken in certain specified courts of the United Kingdom, was, by the Act of the Local Legislature, No. 9, l0 Geo. IV., 8th January, 1830, not adopted in the manner that the other Acts of the Imperial Parliament are adopted in this colony, but ``it was thereby enacted that the said Act of Parliament extended to and was in full force, and the same was thereby declared" (and rightly declared, it having conferred upon, or restored to a portion of the subjects of the British Crown, certain fundamental constitutional personal rights, which had previously been withheld) ``to extend to and be in full force in this colony, in the same manner in all respects as if the said Act had contained a positive clause to that effect."  Thus was this Statute ``declared" to be law, and not ``adopted" as law -- declared to be law, though passed subsequently to the statute 9 Geo. IV., c. 83, which introduces the law of England, only up to the time of passing that Act.  The words of the Prisoners' Counsel Bill, are ``all persons:" there is no limitation whatever to England and Ireland, and Scotland is expected merely because by the civil law which prevails there, prisoners already enjoyed that benefit.  This act confers a fundamental constitutional personal right of the highest importance on every British subject; and in my opinion, therefore, like the Roman Catholic Relief Bill, extends to all subjects owing allegiance to the Queen throughout the British dominions, and certainly not less so to those who in this Colony have the happiness to live under English laws, than to any others.  ``Justice," says the poet,

"-- like the liberal light of heaven,

Unfettered, shines on all."

Some there are who might have deemed it expedient to delay the introduction to this colony of this great constitutional privilege, if it were still a matter of choice.  In my opinion, however, there is now no option.  I could have wished that the Local Legislature had promulgated the Prisoners' Counsel Bill, in the same manner as the Roman Catholic Relief Bill was declared to be the law of this colony; but whether there be or be not any such promulgation, I in my conscience am bound to declare, that I conceive it to be at this moment the law of the colony -- to be one of those fundamental constitutional

personal rights for securing the liberty of the subject, which, like liberty itself, according to a celebrated writer, "should reach every individual of a people, as they all share one common nature; if it only spread among particular branches, there had better be none at all, since such liberty only aggravated the misfortunes of those who are deprived of it, by setting before them a disagreeable subject of comparison."  (Addison, Spectator, vol. 4, No. 287.)

Source: Sydney Herald, 13 November 1839[4] 

 

Mr. Justice Stephens said, I concur in opinion with the rest of the Bench, that the mandamus applied for in this case ought to issue. It is my misfortune, however, to dissent from both my learned colleagues, as to the rounds of our decision.  Their Honors have determined, that the Prisoners' Counsel Act, in common with every other Act conferring a constitutional personal right,[5] extends to this Colony; and that therefore the privilege contended for exists by virtue of an express enactment of the British Parliament.  I also think the privilege exists, but as at Common Law, and not by force of any enactment whatever.  With unfeigned respect for the learning and experience of those from whom I thus differ, I cannot bring my mind to agree with them.  I think that the Prisoners' Counsel Act does not extend here: if it does, there is no sound reason, as it appears to me, for holding that any other general Act, especially if it relate to the administration of Justice, does not equally extend.  The Court will thus have opened a floodgate, through which, I fear, there will from time to time be let in upon us, without preparation or the time for preparation, a host of enactments; the consequences of which, no man can venture to foretell.  If the Prisoners' Counsel Act extends here, why does not the recent Act for liberating the person from arrest, except in case of meditated flight, extend here?  Why does not every Act, of the many passed from time to time, for altering the punishment in criminal cases?  So of various other Acts, which it would be easy to enumerate.  Yet hitherto, local Acts have been thought necessary, for adopting them.  Indeed, if a local law be not required or be not resorted to in these cases, there would (and in future there wil1), as it seems to me, be innumerable difficulties arising.  From what date, for instance, are the provisions of an act to commence?  If, in England, the act began to operate from the day of its passing, it would operate in this Colony, I presume, from the day of its arrival.  But how is that fact of arrival to be determined?  On the other hand, if the act be appointed to commence in England, as is usual, from a future fixed day (which will generally have expired, before we can hear of the enactment itself), how is a corresponding period to be settled for its commencement here?  Look at the many acts passed of late years, for altering the mode of succession to property; for altering, the law of  dower; for limiting the periods within which various actions may be brought, and so on.   Now all such laws as these, and all which in any way alter the criminal law, it was admitted at the Bar, must be holden to extend here (on the principle contended for), if the Prisoners' Counsel Act does.  Let us only reflect on the consequences of the instantaneous commencement of laws so extensive and so important.

One of the least is, that the functions of the local legislature will, for ever, be reduced into such narrow limits as that its institution must become almost useless.  I cannot find that this is the law; I cannot believe that this was ever intended by Parliament.  The observations at the Bar, as to the constitution of the legislative body, have no weight in this question.  If the present legislature have not an option, in determining whether recent English statutes shall or shall not extend here, neither (if the principle contended for be worth any thing) will any future legislative body possess it.  But, as I conceive, the Parliament gave the Colony a legislature, on purpose that it might exercise that opinion.  It said, in the act to which this Court owes its existence, up to this period we legislate for you; take all our present laws, all the laws now in force; and from this date legislate for yourselves.  Let us consider the reasonableness of this.  In the case of burglary or housebreaking for instance.  In England, there may have been many local reasons, why crimes should not be capitally punished.  They may be infrequent; there may be considerable protection against them; when committed, there may be easy means of detecting the offenders; very few houses may be isolated, at a distance from neighbours; an there may be other reasons.  But, in this Colony, there may be a state of things the very reverse; and the Legislature may conceive, that, without the severest punishment those crimes may continue, and no man's dwelling, in this scattered population, be secure.  Yet the law of England, passed only with reference to the state and condition of England, is to prevail; the Local Legislature can have no voice in the matter. -- And so of other Acts.  As to the Prisoners' Counsel Act, there seems every reason why this Legislature should, if in any case, have the option spoken of.  If the case of Collier v. Hicks be law, persons under prosecution before Magistrates in their summary jurisdiction, have no right to professional assistance. On the contrary, the Magistrates have a right to determine, who shall act as advocates before them; or whether any advocate shall be allowed at all.  But, setting the case of summary convictions aside, we come to that of felonies.  Here, at all events, there is no room or doubt.  The law is clear.  A prisoner under trial for felony has not, and never had, a right to full defence by Counsel.  In England, after much debate, this state of things has recently been altered.  And perhaps it will be conceded, on all hands, that a similar change would, abstractedly, be desirable here.  But, local circumstances may not immediately admit of it.  The state of things, as affecting this question, here and in England, may be essentially different.  One has to consider the extent of crime, as compared with the population; the state of the Bar; the state of business in our Courts; the length of time which it is possible to devote to Criminal Trials; and so on.  Now, the Colonial Legislature may form an erroneous opinion, on all these points.  But, that is not the question.  It is, whether those points shall or not be considered. This Court, however, has constitutionally no power to consider them.  In England on the other hand, they cannot have been considered.  The Parliament legislated, alone, for the Courts, and the Countries known to it.  But where was the means of judging, on such points, for these Colonies? -- And, where was the necessity; when there notoriously existed a local Legislature, to determine them; by that Legislature therefore, in my opinion, they should be determined.   It should have, (and in my humble judgment it has,) the right of following the example of the Parent Legislature, or of rejecting it, or postponing its adoption to a more convenient season, or of enacting the measure wholly, or subject to conditions, or in part as it may see fit; according to local exigencies, and expediency.  I think this, not only of the Prisoners' Counsel Act; but of every other, passed since the time when a Local Legislature was, conferred upon the Colony.  I conceive, too, that this is a proposition, of which the maintenance is, in every point of view, most important.  The power of which I speak, may, occasionally, be of the last moment.  The Colonial Legislature may be of opinion, and rightly, that a change in the law, beneficial in England, and passed perhaps in reference to considerations existing only in England, is however applicable, highly inexpedient, or prejudicial, in New South Wales. The Legis1ature would gladly reject, therefore, or at least would modify or postpone it.  But, if the principle contended for, as to the operation of English laws in this Colony, be at once admitted, and according to my impression, though, perhaps a mistaken one, of the judgment of this day, that principle is inevitably recognised, no such power can be exercised.  At all events, every such power is at an end, with respect to the Prisoners' Counsel Act; although a power be thereby for the first time conferred, which previously existed, not by the Constitution, nor at Common Law, nor by Statute, and a power be on the other hand taken away, which the Court of King's Bench has said, that magistrates by that law fully possess.  Such an Act, in my opinion, will not extend to this Colony, unless named, or unless by necessary and unavoidable construction, such extension was intended.  We are not to infer such an intention, merely because the enactment is equally fitting.  Nor, because it can equally be carried into effect.  The question must bona fide be, for what places did Parliament really mean to legislate.  But the general rule is -- a rule laid down in twenty cases, and repeated in every text book -- that, except as above excepted, Statutes passed since the settlement of a Colony, did not extend there.  In other words, the general presumption is, that Parliament did not mean to legislate for the Colony.  I can discover nothing in the Prisoners' Counsel Act to overcome that presumption; nothing to take it out on the ordinary, and as I conceive, established rule in such cases.  The provision in the New South Wales Act of 9 G. 4, appears to me to fortify this opinion.  That Act was passed to provide for the government of these colonies, and the administration of justice therein; and it enacts, that all the laws of England, then in force in England, should, so far as they could be applied, be equally in force here.  What does this mean, but that, as to all laws subsequently passed, something more would be required to give them operation in the Colony?  And does it not imply that, but for that enactment, even the then existing laws (or such of them, at least, as had been passed since the previous New South Wales Act of 4 G. IV) would have had no such operation?  The effect of the enactment seems, to my apprehension, clearly this. -- It is as if all such then existing English Statutes had been thereupon re-printed for the Colony; the Colony being actually named therein, and the whole being actually collected, and bound in the Colonial Statute Book.  Every such law, in short, would operate here, not because it was law in England, but because, by express provision, it had been made the law of the Colony.  And thus, not one leaf can be added to, or subtracted from that Statute Book, merely because of additions to, or alterations in the Statute Book of England; for, with the latter, per se, we have nothing whatever to do.  A Statute thus once adopted into the Colonial Code, and forming part of that Code, would (according to this view of the subject) no more cease to exist there, because its original ceased to exist in England, than a graft would cease to live and flourish, because of the death of the parent tree.

The rest of His Honor's judgment, of which we have no notes, related to the grounds on which he was, nevertheless, in favour of the Mandamus.  These were, that he regarded the 2nd section of the Prisoner's Counsel Act, (relating to summary convictions), as declaratory; or, in other words, though of no value as an enactment, yet decisive as a legislative affirmation of a fact, as an authoritative statement, that the privilege claimed in this case always existed.  He regarded that section, especially when coupled with the reasonableness of the claim, and the general opinions which prevailed in its favour, prior to the case of Collier v. Hicks, founded on principle, an analogy, as equivalent to a reversal of the decision in that case.  His Honor then proceeded to assign reasons, at some length, for the opinion, which, but for that decision, he said that he should unhesitatingly have entertained as to the validity of that claim.  He concluded by expressing his gratification, as an individual, that, however acquired, the right of full defence by counsel would now be in operation.  He did not think that the Court had the power of conferring that right; but he was glad, nevertheless, at the immediate result; because he was sure that it would be every way favourable to the ends of justice.  He had, in his official capacity, introduced a law into the Legislative Council of the Sister Colony, three years ago, giving the right in question, as in England; and he could testify, from personal observation, that the measure had neither impeded nor retarded the administration justice in that Colony.  He believed that, on the contrary, the measure was practically beneficial, and he thought it as wise as it was just.

Notes

[1]  See also Australian, 15 October 1839; and see Ex parte Dillon, 1839.  For editorials on the case, see Sydney Herald, 4 and 8 November 1839.

[2] See also Australian, 29 October 1839.

This case was reported at (1839) 1 Legge 123 (based on the reports of the Sydney Herald and, apparently, the Australian), with the following preliminary material:

``Applicability of English statutes subsequent to 9 Geo. IV, c 83 - Right of audience before Justices of professional advocates - Prisoners' Counsel Bill, 6 and 7 Will. IV, c. 114-9 Geo. IV, c. 83, secs. 21 and 24.

``The right to make rules of practice for Courts of Quarter Sessions is vested in the Governor, by sec. 19 of 9 Geo. IV, c. 83.

``The case of Collier v. Hicks (1831) 2 Barn. and Ad. 663, which decided that "no person has by law any right to act as an advocate on the trial of any information before Justices of the Peace, without their permission," although since the statute of 9 Geo. IV, c. 83 was binding on the Court.

``That decision has been virtually overruled by the English Parliament, which has declared and enacted a different exposition of the law of England, upon a fundamental principle in the mode of administering justice, and is longer binding on the Court.

``There is nothing in sec. 24 of the New South Wales Act, 9 Geo. 4 c. 83, to restrain the Courts of the Colony from applying here any English statute, affecting the fundamental personal rights of British subjects, whether in force in England subsequently or prior to July 28, 1828.

``The Prisoners' Counsel Act is in force in this Colony so far as its provisions can be applied. (Per the Chief Justice and Willis, J., Stephen, J. dissentiente.)

``(Per Stephen J.) Statutes passed in England since the settlement of a Colony do not extend there, unless by express terms or unavoidable construction.

``The Prisoners' Counsel Act, sec. 2, is however, declaratory of the law, and a legislative recognition of the principle, erroneously overruled by Collier v. Hicks.

``MANDAMUS

``This was an application for a writ of mandamus to be directed to H.C. Antill, Esq., one of Her Majesty's Justices of the Peace, in the district of Stonequarry, commanding him to allow Mr. G. R. Nichols, one of the attorneys of the Court, to conduct the defence of one Charles Morris, on the ground that the Magistrate had refused to allow Mr. Nichols to conduct the defence, but had adjourned the case until the opinion of the Court could be taken on the point.  The case was argued on October 26, by Messrs. a`Beckett and Windeyer, for the applicant, and the AttorneyGeneral and Mr. Purefoy for the magistrate.

``Judgment was delivered on October 28."

The Prisoners' Counsel Act, 6 and 7 Will IV, c. 114, sec. 2, provided ``That in all cases of such conviction persons accused shall be allotted to make their full answer and defence, and to have all witnesses examined and crossexamined by counsel, &c."

[3] The Sydney Herald, 30 October 1839 added ``The great length of the other judgments obliges us to postpone them.  Mr. Justice Willis said he had never listened to a judgment with greater pleasure than he had listened to the Chief Justice's, with which he concurred.  Mr. Justice Stephen agreed with the other judges that the mandamus should go, but differed from their Honors as to the Prisoners' Counsel Bill being in force in the Colony."

[4] See also Australian, 19 November 1839.

[5] The Sydney Herald 13 November 1839 added the following footnote here: ``It appears that their Honours decided, only, that such parts of this Act extend, as the existing circumstances of the Colony admit of, and as there is existing local machinery to apply."

Published by the Division of Law, Macquarie University