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

R. v. Alderson [1840] NSWSupC 37

criminal procedure, criminal prosecutions, right to counsel, crown prosecutor, prisoners' counsel, right to

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ., 3 August 1840

Source: Sydney Herald, 3 August 1840[1]

            Mr. Foster said, that in the case of Henry Alderson, who had been committed to take his trial before the General Court of Quarter Sessions, he had to move the Court for an order to cause the Clerk of the Peace, to furnish the applicant's attorney, Mr. G. R. Nicolls, with a copy of the depositions taken against the prisoner before the committing magistrates on payment of the usual fees.  He also applied for the costs of the present application, as the documents had been applied for, in order to enable the applicant to prepare his defence, but had been refused on the ground that the prisoner was not entitled to have copies of them, although he might at the trial have access to them, as an act of courtesy on the part of the crown prosecutor.  Mr. Foster informed the Court that he was provided with affidavits to prove that due notice had been given to Mr. Moore Dillon, the crown prosecutor, who refused to receive the said notice, alledging that he had nothing to do in the matter, as it belonged to the clerk of the peace; also, that he had an affidavit by which he would be able to show that the clerk of the peace had been applied to for a copy on the payment of the usual fees, but he had refused, on the grounds that the prisoner had no right to demand copies of the depositions on payment of the usual fees, which were to small, as no person could be found who would copy them at the stipulated fee of three half, pence per folio of ninety words.  In consequence of which refusal, he had been served with notice of the present application.

            Mr. Foster, in support of the application, referred to a previous decision of the Court, which although not exactly in point, he maintained, went far enough to show that his client was entitled to the documents which were uniformly granted by the police magistrates when they were applied to, while the documents were in their possession; he also insisted that as the prisoners Counsel Bill had been adopted in this colony as far as its provisions were applicable, and it could not be shown that either an attorney or barrister could efficiently prepare for a prisoner's defence, therefore the Court must grant the application, and if the common fees referred to for such documents being furnished in England, were too small an ordinary charge ought to be substituted for such being furnished in this colony - but he maintained that the pounds shillings and pence, which the furnishing of such documents might cost, could not be any argument against the application, as if this were admitted, it was probable that very few documents could be obtained; all the Court had to consider, was the legality and the justice of the principle.  He also informed the Court, that although the question of costs to be paid by the clerk of the peace had been inserted in the notice of the application, it was not intended to insist on them, as the principal object of the application was to get the point definitly settled, as to whether prisoners were entitled to a copy of the depositions on payment of the usual fees or not.

            Mr. Windeyer followed on the same side, after which

            The Attorney-General rose to oppose the application, as it had been by his advice that Mr. Rogers, the clerk of the peace, had refused the application.  He maintained that as the Clerk of the Peace was not the proper keeper of such documents, therefore he could not be called on to furnish copies of them.  The documents were always, forwarded to him, the Attorney-General, in order to enable him to determine how and in what form the offence was to be prosecuted, and also to guide him in drawing the information, &c.  With respect to the copies of the depositions being furnished by the magistrates, he had never heard of such a thing, and if they had done so they had exceeded their powers, as he knew of no law which permitted them to do this even in England.  Another reason why the depositions were forwarded to him was to enable him to ascertain whether there was reasonable ground for filing an information, and this he could only do by having the depositions before him.  One benefit which arose out of his doing this was, that it frequently happened, that parties who could not be prosecuted were liberated much sooner than they would otherwise be, as if after reading the depositions &c. and making such enquiries as were necessary, if he found that the prosecution could not be proceeded with, he immediately made the circumstance known to the Sheriff who, on the authority of such representation, discharged the parties, against whom no proceedings were to be taken.  In proof of which he had to inform the Court that during last year he had ignored not less than one hundred and nine bills, and from the first of January, 1840, up to till the 17th July, he had ignored upwards of twenty bills more.  He contended that has there was no law on the subject, that the practice, as at present, must be continued.

            His Honor the Chief Justice, said that their was one point in the application which was not sustainable, and the Court would have wished that it had not been brought forward viz. - that of the costs of the present application, as the Clerk of the Peace had acted in the case in compliance with the orders of his superior officer, and therefore its having been introduced deserved the discommendation of the Court.  The Court were also of opinion that the more proper mode to have brought the question before the Court should have been by an application for a mandamus, which would have been more regular than having it introduced before it by such a summary mode of procedure - one objection which had been urged against granting, the application was that there was not sufficient machinery in the colony to carry the said cause of the Prisoners' Counsel Bill into effect, but that was not the question.  If Acts were adopted it was the duty of the Executive to provide the machinery, the question of expence never could interfere with the distribution of justice, and, therefore, in his opinion, the order must issue.

            Judge Willis was of opinion that the Prisoners' Counsel Bill was simply a consequence of a constitutional right, and, therefore, in as far as it was adapted for being put into operation in this colony it was right that it should be brought into action; with regard to the depositions, to have them was merely a part of the same principle, as without them it was possible that a prisoner's defence could not be safely undertaken by the gentlemen of the profession; in fact, were these refused, it would go a great way to emasculate the bill, and deprive it of its force, therefore he coincided with the Chief Justice.

            Mr. Justice Stephen considered the furnishing of the depositions as a more important part of the Act than even allowing the prisoner counsel; and therefore, he thought the Court had no other path to follow than to grant the order.

            During the discussion of the point, the Court expressed itself as being of opinion, that the committing magistrates had the authority, and did right in granting copies of depositions when applied for by the prisoners or their counsel, on payment of the fees.

            After the point had been decided, Mr. Foster stated, that Mr. Rogers had been told, when the notice of application had been served on him, that the costs of the application would not be insisted on.


[1]              See also Australian, 4 August 1840.

Published by the Division of Law, Macquarie University