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

R. v. Peckham [1841] NSWSupC 29

certiorari - criminal procedure - appeals, criminal

Supreme Court of New South Wales

Dowling C.J., 16 February 1841

Source: Sydney Herald, 18 February 1841[1]

            Mr. Foster, on behalf of Henry Peckham, now a prisoner in Newcastle Gaol, applied to the Court for a rule nisi calling on the Court of Quarter Sessions to show cause, why a certiorari should not issue to cause the record of the proceedings in the case of the said Peckham, be brought under review of the Supreme Court, on the ground that the said Peckham had been committed to take his trial for an assault before the General Court of Quarter Sessions, when he was admitted to bail, that when he appeared on the floor of the Court of Quarter Sessions he was greatly surprised to find that he was indicted for a felony instead of a misdemeanor, and that it was stated, as an objection to his taking his trial, that this variation of the charge, on which he had been committed, and on which he had been compelled to take his trial, had materially injured his defence, as he not being aware until he had surrendered and pleaded was to defend himself on any charge but that of the assault. It was also sworn that the prosecution for felony, although in the name of the Attorney-General, had not been commenced with the knowledge of, nor carried on with the concurrence or by order of the said Attorney-General as required by law, and therefore the conviction must be illegal, as the necessary forms had not been complied with. Mr. Foster, in support of his application, informed the Court, that as the Attorney General was in the situation of a grand jury, it was necessary that all forms should be strictly complied with, and he referred to a case in Russell and Ryan, page 401, in which from an irregularity in the proceedings before the grand jury, the judges in England had recommended that without going into the question of the irregularity, that a pardon should be applied for, and that since then there was a case on the books to show that the courts in the mother country were most anxious that all the prescribed forms should be strictly complied with.

            Mr. Manning, as amius curiae, suggested to the court that its decision in such a vital point, as was implied in the present application, would go to affect every conviction which had taken place in the inferior court in which he had the honor to preside, he had no wish to obtrude himself on the Court, nor would he be fully warranted in making such a statement to the Court, were it not that he conceived it his duty to prevent anything like mistaken views and principles from coming into operation, and such would be the result were applications like the present to be aceeded to without due consideration. He therefore considered it his duty to inform their Honors, that the usual way in which it was known in which Court the parties were to be tried in, was, that all the depositions were in the first instance forwarded to the Attorney-General's office from the bench where the committal takes place, that afterwards these and the other documents necessary for the prosecution were inclosed and addressed to the proper officers in the respective Courts, in due time to enable them to prepare the required informations, and bring the parties to trial. At the same time he was happy to inform the Court, that in future no such confusion could arise, as it had been specially provided by a recent Act of the Legislature, that the Crown Solicitor could make the arrangements of the department of the criminal business.

            Mr. Windeyer, in support of the application, stated, that he remembered a case which he had before cited to the Court, although he had not the volume to produce, nor could he distinctly remember the case, but he thought Mr. Manning would, as it was a case which he (Mr. Manning) had most probably reported, wherein a party had been convicted, and it having subsequently turned out that one of the jurors who had returned the conviction was a quaker, and it having been subsequently shown to the Court that the requirements of the Law as to the whole jury being sworn, had not been literally complied with, the Court cancelled the conviction. [His Honor Justice] Stephen considered the present case as by far the most important that had come before the Court, as, if it should turn out that the rule nisi applied for should be affirmed, it certainly would, from the information so kindly given to the Court by Mr. Manning, go to affect not only the present, but hundreds, he might say thousands, of other cases, at the same time. As His Honor the Chief Justice had remarked, the present was merely an application for a rule nisi, calling on an inferior court to show cause why a certiorari should not issue. No evil could arise from granting the application.

            His Honor the Chief Justice, after making enquiry as to the parties on whom the notice was to be served, ordered it to be made returnable on Saturday first, when one of the counsel, in support of the application, having informed the Court that as one of the gentlemen, a magistrate of the territory on whom the notice would have to be served, resided at the Hunter, it would be impossible for them to comply with the rules of Court; he, therefore, trusted that the rule nisi would be made returnable on Saturday eight days. Mr. Manning, as amicus curie, again suggested to the Court that it was not improbable that by the time the Attorney-General might be no longer in the colony.

            His Honor the Chief Justice thought that no inconvenience could arise from that, as, if the Attorney-General took his departure before then, he felt convinced that he would leave the business in his office in such a state as would not in the least impede the case. It was ultimately fixed that the case should come on again for hearing on Saturday week.

Dowling C.J., March 1841

Source: Sydney Herald, 16 March 1841

THE QUEEN V. PECKHAM. - In this case, in which a rule nisi had been made absolute for a certiorari, calling on the chairman of Quarter Sessions, and Mr. Dawson, a magistrate of the territory, to make a return of all the proceedings in the case of the Queen against the defendant, who had been tried and convicted of felony, before the Court of Quarter Sessions, Mr. Moore stated, that in consequence of the pressure of business in the Attorney-General's department, when the rule nisi was applied for, he had found it impossible to appear in person to oppose the application. He (Mr. Moore) had since then been directed by that gentleman to appear in his stead, and move for a rule nisi, calling on the applicant, Henry Peckham, to show cause why the writ of certiorari should not be set aside, on the ground that it had been improvidently granted; also on the ground, that if a return to the said writ had been obtained, that the same might be quashed. These applications were supported by an affidavit, sworn by Mr. Edward Rogers, Clerk of the Peace. In support of the application for this rule, Mr. Moore cited the case of King v. Cassan and others. Mr. Moore also informed, the Court that an additional reason why the application for the rule nisi, for the certiorari had not been opposed, was, that Mr. Rogers, the Clerk of the Peace, had received no notice of its being about to be applied for, he being, at the time when the application was made, attending his duties as Clerk of the Peace at Bathurst; which of courser put it out of his power to enable those gentlemen, against whom the certiorari was about to be issued, to obtain from him such information as was necessary to enable them to comply with its requirements.

            Mr. Foster, who appeared in behalf of Peckham, considered the course pursued by the Crown officers as being of a most extraordinary description, in as much as he had, at one period, known something of the practice of the Court of Quarter Sessions, and then it had come within his knowledge, that "the chairman and magistrates had the authority, as well as the power, to order such returns as thecertiorari had called on Mr. Manning and Mr. Dawson to produce. In fact, without this authority, it was impossible for the chairman to make those returns to the Legislature which, at the time he referred to, were often called for after the lapse of years. He, however, had a motion to make to the Court on the subject, which he would do at the proper time; but while he did so, he was sorry that he should have to make such an application to the Court, which nothing but a sense of his duty to his client, and the justice of his case, would have induced him to make.

            After a few motions of course, Mr. Foster informed the court, that the motion he had already referred to in Peckham's case was, that the return which had been made by the Chairman of Quarter Sessions and Mr. Dawson should now be read. The answer having been read by Mr. Bradley, the Chief Clerk, which purported that the records called for were not in their possession, and also that from their not being aware (by reason of Mr. Rogers' absence) were they were to be found, that they were unable to comply with the demand made upon them.

            Mr. Foster then addressed the Court at considerable length, characterising the conduct of Messrs. Manning and Dawson, as one of the grossest cases of contempt which he had ever witnessed, inasmuch as it was not for a moment to believed, that these gentlemen were ignorant of the law or of the risk to which they exposed themselves, at the same time he though it his duty as a member of the bar to object to such manoevering as had been practised on the present occasion, he did not know of any rule of court which authorised the Attorney-General to appear in court as he had done in the present instance so unceremoniously by deputy. The only doubt in his (Mr. Foster) mind was whether he should at once move for an attachment or an aliascentiorari.

            Mr. Windeyer followed on the same side, and maintained that as the rule was now made absolute, it was the thing applied for that must be produced, and not an excuse as had been just read in court. He also felt it his duty to call the attention of the Court to the inconvenience expense and other evils to which his client had been subjected by the course which had been followed by the Officers of Court, and the Magistrates in the present case.

            The Chief Justice held that the Supreme Court of New South Wales, as far as the present case was concerned, had all the powers of Her Majesty's Courts in Westminster, inasmuch as it had the power to review the proceedings of all inferior Courts. It was also a maxim in the constitution of the inferior Courts, that the chief officers or head in each of these respectively, had full power to control all the inferior Officers in the Court of which he was the head; at the same time he was of opinion that the proper plan was for the Court to enlarge the rule till next Saturday.

            Mr. Manning as the Representative of seven Magistrates, who were more or less mixed up with the conviction of Peckham, thought it was his duty to inform the Court, that in his opinion, so far as he had been able to read and understand the law, that any application for a certiorari after judgment had issued as in the present case unconstitutional. After a lengthened conversation between the members of the bench and bar, it was definitely arranged that further proceedings in the case should be stayed till next Saturday, by which time Mr. Manning undertook to furnish the documents applied for. After a few motions of course the Court adjourned at half-past five till to-day.


[1]              See also Australian, 18 February 1841; Sydney Gazette, 26 February 1841.

Published by the Division of Law, Macquarie University