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

Gaol delivery [1842] NSWSupC 14

gaol delivery - Quarter Sessions, power of

Supreme Court of New South Wales

Burton and Stephen JJ, 15 January 1842

Source: Sydney Herald, 17 January 1842 [1]


            Sydney Gaol - The Attorney-General informed the court that the first eight prisoners on the list were in Sydney Gaol, merely from their being in a state of transitu to Newcastle, where they had been committed on a charge of cattle-stealing, they had been sent here through mistake, or rather to hear the evidence of the principal witness, an approver, and who being a desperate character, it was feared, that if he had been sent to Newcastle might have made his escape, but the whole would be tried at the first Maitland Circuit Court; or, if not, they would then be discharged at the Maitland gaol delivery.

            Mary Patridge . - Who had been committed to take her trial for perjury, alleged to have been committed by her at the trial of a case before the Brisbane Water Court of Requests, had been detained in order that proper enquiry should be made as to two of the witnesses being in a condition to prove the case against her; but it appeared, that although there had been a great deal of cross-swearing in the case, yet no two of them so agreed in their depositions as to render it likely that a conviction would be obtained. The Attorney-General, therefore proposed that she should be liberated on entering into bail to appear when called on. Mr. Justice Burton enquired of the prisoner if she was married, when she told him that she was, but her husband, Benjamin Partridge, was not living with her, but cohabiting with the woman who was the principal witness against her. She then entered into her own recognisances to appear when called on, and was discharged.

            Geore Fyfe Mullan had been taken in custody on a charge of horse-stealing, in company with another man, still at large, named Workmann, for whose apprehension a warrant had been issued, and who was expected soon to be custody, but till then the Attorney-General could not safely proceed to trial, as it was probable, that one of them might have to be admitted as an approver. Besides, as the horses had been stolen beyond Bathurst, that was the proper court to try them in. The only other two cases were those of Hart and Taylor for forgery, of which the depositions had not been forwarded to the Attorney General's office, till about the middle of the present week; all the other cases being of such a kind as would be disposed of by the next Court of Quarter Sessions.

            His Honor, Judge Burton, called the attention of the Attorney-General, to what he conceived was a common error. It appeared by the calendar, that several persons committed for trial had been discharged by the Magistrates sitting in Quarter Sessions; but as that Court was not a Court of gaol delivery, but merely a Court of Oyer and Terminer, it had no power to discharge any prisoner without his being put on his trial.

            The Attorney-General explained, that in the cases referred to, the reason why no trial had taken place was, that the principal witnesses could not be found.

            Mr. Justice Burton stated, that in such cases, wherever the information had been put on the file, the accused party had a right to have a jury sworn in, and if the witnesses were not in attendance the proper way was to record a verdict of not guilty, and then immediately discharge the prisoner, who would not again be liable to be tried for the same offence. His Honor also requested the Attorney-General to make the proper mode of procedure known to the Magistracy, which he promised to attend to.

            Parramatta Gaol. - The first four cases on the list were stated to be four in which the depositions had not been received till the last sitting in October had been commenced, and as the witnesses resided at Bathurst, it was found impossible to bring the case to trial at that sittings of the Quarter Sessions.

            The Court enquired how the sittings of the Quarter Sessions at Parramatta were regulated; when it was stated, that the Court sat four times in the year, at such periods as the Governor appointed by his proclamation.

Judge Burton remarked, that the explanation as to the delay in bringing these cases to trial was not so satisfactory as could have been desired, as by the delay these prisoners had been kept in gaol since early in October. He, therefore, ordered them to be admitted to bail, each in £40, with two sureties in £20 each.

A person named Harrison, committed for stealing a bottle of brandy, and at present in Parramatta gaol, was also ordered to be admitted to bail in the like sums.

It also appeared by the calendar, that a person named George Russell was in custody in Parramatta gaol under committal on a charge of felony. His Honor Mr. Justice Burton called the attention of the Attorney-General to this circumstance, as one which had before attracted the attention of the court. The depositions were sent for, from which it appeared that the specific charge against the prisoner was one of larceny, alleged against him for having stolen a piece of pork from a cask at Brisbane Water. He had been committed so far back as the 13th of September, and had been forwarded for trial at the last Campbelltown Quarter Sessions; but the whole of the evidence not having been then taken against him, he had been returned to Brisbane Water, in order that the depositions against him might be completed; they had only been received back the other day. The circumstances which led to his being returned as in Parramatta Gaol, were, that the prisoners for trial at Campbelltown Quarter Sessions, from Brisbane Water, were brought from that place by sea to Sydney, and from Sydney were forwarded by the steamer to Parramatta, and thence escorted to Campbelltown, so that he merely appeared on the Parramatta return from his happening to be there in a state of transitu when the return was made.

His Honor (Judge Burton) remarked that this was another case of Habeas Corpus, as, while the Supreme Court of gaol delivery was sitting, no person had the power of moving a prisoner from one gaol to another, and any one doing so was liable to be fined in the sum of £500. It was necessary that such a precaution should exist, as it was possible that a party under committal for trial might be moved about from one gaol to another, and so prevented from his liberty, when by law entitled to it.

Windsor Gaol. - The Attorney-General informed the Court that the only case in this gaol which required notice, was, that of James Brooks, who had been tried for horse-stealing at the last Circuit Court, when he was acquitted; but immediately after committed on a charge of having received the stolen property, when a warrant had been issued for the apprehension of the principal culprit who had stolen the horse. The case would, therefore, be tried at the next Circuit Court for Berrima.

Liverpool Gaol. - The court was informed that all the persons under committal in this gaol were parties who would be tried at the Campbelltown Quarter Sessions, they had been lodged in Liverpool Gaol as that at Campbelltown was not in a fit state to keep any person in.

With regard to the other gaols each of them had their gaol delivery by the Circuit Courts belonging to their respective districts.

Judge Burton said, he was sure the Attorney-General would excuse him for pointing out to him the necessity that exists for impressing on the minds of the Magistrates the importance of their attending to the new rules lately promulgated relative to the prisons and gaols. From the number of persons which it appeared from these lists were at present waiting for trial, he thought it could not be too much impressed on the proper officers of the executive, the urgent necessity that exists for Circuit Courts being established and held at other places in addition to those where they are at present appointed, as by this means the mode of judicial procedure would be most readily assimilated to that of Britain. With regard to the delays which took place in persons being brought to trial before the Courts of Quarter Sessions, that was one of the evils of its being an itinerant court; which prevented it from sitting in more than one place at the same time. He hoped that the sittings of these courts would be so arranged that they should take place just before the sittings of the courts of gaol delivery.

The Attorney-General having expressed his acquiescence in the remarks made by his Honor, stated that there were two men named Ampfield and Hudson, in custody, by their Honors' orders, to take their trials for perjury. He had since then, gone over their cases, and made enquiry, but he had not been able to obtain the evidence necessary to bring home the charge to the prisoners. It had, however, been discovered, that one of the prisoners was not named Ampfield but Kelly; he had been, and was still supposed to be, a convict illegally at large.

His Honor remarked, that what he had just heard of him, went a good way to explain his conduct, for which he had been committed. He then told the prisoner that he had committed him, but was not about to discharge him, not that he doubted the rectitude of his committal, but because the Attorney-General had found, that there was a legal difficulty in bringing the case home to him. He could not discharge him without expressing his regret that the present was not the first case in which, when cases arising out of disputes on ship-board had come on for trial before him, had rendered it a part of his duty to order some of the witnesses on the one side or the other into custody for gross violations of the truth. He then discharged the prisoner, but ordered him to be taken to Hyde Park Barracks, for the purpose of being identified.

William Hudson, who had been committed during the week for a like offence before Judge Stephen, was informed that the only reasons his Honor had for discharging him were, that as the law at present stood, it was imperatively necessary there should be two witnesses to convict him of the crime he was charged with. As the Attorney General had not been able to find two witnesses to prove the charge, it would only be annoying the parties bound over to prosecute him, were they to be detained on shore for that purpose till he was tried at the next sitting of the court, Judge Stephen trusted he would take warning from what had occurred, and then discharged him.


[1] See also Australian, 18 January 1842; Sydney Gazette, 18 January 1842.

Published by the Division of Law, Macquarie University