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

R. v. Betts [1841] NSWSupC 120

habeas corpus - master and servant law - certiorari

Supreme Court of New South Wales

Burton J., 29 December 1841

Source: Sydney Herald, 30 December 1841


WEDNESDAY. -- Before Mr. Justice BURTON.


            Mr. MICHIE, in this case, on behalf of the prisoner, moved that the return to the Court of Habeas Corpus, upon which the defendant was brought up from gaol, should be filed, and the prisoner produced at the bar of the Court. Upon the return being read, and the prisoner produced, Mr. Michie now moved that the latter should be discharged out of custody.  He said it might tend to present the pecularcircumstances of the case more clearly to his Honor's mind if he (Mr. M.), before referring to the affidavits on which he moved, were to call his Honor's attention to the deposition of M. H. Marsh, Esq., on the strength of which the Port Macquarie magistrates had been persuaded to commit themselves, by committing the prisoner. That deposition, which was made by the master of the prisoner, merely set forth that the latter was his (Mr. Marsh's) hired servant, and that the son of the prisoner also serving under the same e[n]gagement, with Mr. Marsh, was in the habit of taking out two dogs, which worried Mr. Marsh's rams; that the boy had been ordered not to do so, and, upon a repetition of th[e] offence, he had been beaten by the defendant Mr. Marsh, with a small stick; that shortly afterwards the prisoner Betts walked up to Mr. Marsh in an insolent manner, and demanded his discharge, and went away with the expressed determination of leaving the station., but was persuaded to return by one of the other men; that the rams were in a low condition from the treatment they had received; that at the time of this occurrence the Commissioner was away from that part of the country, and on his return about six months afterwards, deponent obtained from him a warrant, and sent the prisoner down; that the prisoner in the interval between the period of his demanding his discharge had worked very well, and the deponent considered there was a sum of about £19, coming to the prisoner for the labour of himself and family. That was the sum and substance of Mr. Marsh's complaint, and although it disclosed nothing whatsoever, which by the most forced construction, could make the prisoner amenable to any of the clauses of the Hired Servants Act, yet the Port Macquarie magistrates had seen sufficient in that deposition to justify them in committing this poor man to six weeks confinement and separation from his wife and son. The Hired Servants' Act, stringent as were its clauses, and awarding punishment to those servants who improperly and in violation of their engagements abandoned their work, yet it did not award any penalty for merely threatening to quit the work, without doing any thing subsequently to realize the threat. It would be seen that this poor man's threat was delivered under circumstances which not merely mitigated his offence, if offence it were, but did honour to his character as a father. His own affidavit, which he (Mr. M.) would read to his Honor, showed that he had, in a state of excitement, after the beating of his son until his skin was black and blue, claimed his (the prisoner's) discharge from his engagement, and Mr. Marsh's own deposition showed that so soon as time had cooled the prisoner's resentment he had quietly and willingly returned to his work. This was the conduct of the prisoner on the prosecutor's own showing. That of the prosecutor, Mr. Marsh, did not much become a man of station it the contrast. It was clear he had exhibited great intemperance in his attack on the boy, and after a lapse of six weeks had followed up that conduct by vindictiveness, equal to his former passion, in attempting so seriously to punish the prisoner after he had quietly resumed his work. Independent, however, of these matters, which constituted the merits of the prosecutor's case, there were a series of such gross and ridiculous blunders in the proceedings of the Port Macquarie Magistrates, that without reference to the merits at all, he (Mr. M.) submitted, the prisoner must be at once discharged out of the custody of the gaoler. The affidavit of Mr. John Dillon, the prisoner's attorney, would sufficiently direct His Honor's attention to the deportment of these Magistrates, on Mr. Dillon applying to them to discharge the prisoner; on that occasion they had utterly refused to listen to the grounds of his application.

            His HONOR here suggested, that as the Magistrates had not an opportunity of answering this affidavit, it would be perhaps better if the prisoner's counsel were not further to canvass their conduct in the committal.

            The prisoner's counsel acknowledged the propriety of this suggestion, and said he would now only direct His Honor's attention to the errors in the sentence or conviction; for the decision of the Magistrates might be called either the one or the other, and it was clear that as there was no conviction distinct from the sentence, the Port Macquarie Magistrates had made their fiat do the office of both. If it were to be considered as a sentence, then there was no conviction on which the subsequent committal could be founded, and if it were regarded as a conviction, then there was no sentence; and then as a conviction, it possessed no one property that could give it any efficacy, as against the prisoner. No specific offence was shown therein to have been committed by the prisoner, nor did he appear to be committed by a competent authority: both of which were requisite ingredients in a conviction, according to Paley, in his work on that subject. It was true the names of the two magistrates, William N. Gray and H. Evans, were at the end of the sentence; but there was no expression, in any part of the committal, showing it to emanate from their authority. Then, how could those magistrates possibly justify that part of the sentence which fined the prisoner ten pounds as damages? when the deposition of Mr. Marsh had contained not one word of claim on this head, and alluded only to the insolent demand to be discharged, which had been made by the prisoner; and the taking the dogs out by the prisoner's son, whom Mr. Marsh acknowledged he had punished for this offence. Bu[t] the most important defect of all, he (Mr. M.) submitted, would be found in the committal on which the prisoners at the bar had been incarcerated. It was absolutely necessary, in all committals, that it should be distinctly expressed that the prisoner had been convicted of the crime charged upon him, as well as that the description of the crime itself, in the same document, should be fully and distinctly set out. In the present committal the word charged was substituted for the word convicted; and that substitution alone, on the authority of Rex v. T. Cooper, in the sixth volume of the Term Reports, entitled the prisoner to be discharged. The offence charged, too, being merely breech of an agreeement, was not a crime, but merely subject matter for a civil action: then, again, it was necessary that it should appear [s]ome part of the commitment, who was entitled to the penalty; but in the committal it was only said that the prisoner was to be mulct of £5 from the wages due to him, and to pay the sum of £10, as damages to Mr. Marsh. Now, it was clear that the Port Macquarie magistrates would have had no difficulty in framing this part of the committal according to law, for the clause of the Act in terms gave the penalty to the Queen; yet, notwithstanding this plan enactment, for all that could be gathered by the most attentive reading of the Port Macquarie magistrates "committal," that "five pounds" might have been put in the magistrates own pockets.

            His HONOR here stopped Mr. Michie, and said he did not see that it was necessary that he (Mr. M.) should proceed any further with what he had made abundantly manifest already. It was clear, without reference to the merits of the case, or the conduct of the Port Macquarie magistrates, that their proceedings had been characterised by all the errors and informalities which had been attributed to them. These great informalities he (Mr. Justice Burton) was quite of opinion, warranted him in complying with the motion, by at once restoring the prisoner to his liberty. In doing this, his Honor wished at the same time to utter one or two observations on the circumstances of the case. He regretted that the same reason he had assigned for suggesting that the prisoner's council should not further animadvert on the conduct of the Port Macquarie magistrates, restrained himself (Mr. Justice Burton) from remarking so liberally [as] he should otherwise have done, upon the ma[ni]festlyexcessive disregard of these parties, for the liberty of the subject, and their reckless employment of forms of law.  It was not th[e] first time his Honor's attention had bee[n] called to the conduct of the Port Macquarie magistrates; and he hoped for their own sakes it would be the last. It was a monstrous thing that the prisoner should have been dealt with after the manne[r] described, mainly as it appeared to his Honor, for an offence for which his bo[y] had been previously punished by the prisoner's master. His Honor could not bu[t] express his regret that the writ of certiorari, bringing the proceedings of magistrates fully before the Judges, was now so frequently abolished by legislative enactment. This, to his Honor, as legislative policy, did not appear to be founded on sound reasoning. It must be obvious, his Honor thought, to any one, that all magistrates would be much more likely to act with temperance and a sound discretion in the exercise of their functions, where the judges had a checking power over their proceedings, than the same Magistrates would display, when this legal control was taken from the Judges by legislative enactment. His Honor thought such a view of the case could not be better exemplified than from the circumstances of the present case. The writ of certiorari having been taken from the Judges by a clause of the "Hired Servants' Act," the prisoner notwithstanding any amount of tyranny or ill-usage on the part of the Port Macquarie Magistrates could not have received his liberation at the hands of His Honor, but for the fatal defects in the conviction or committal, which enabled His Honor under the writ of habeas corpus to give the prisoner his immediate discharge.

            The prisoner was on the close of His Honor's observations, immediately allowed to go free.

Published by the Division of Law, Macquarie University