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

R. v. Hodges and Lynch (No. 1) (1844) NSW Sel Cas (Dowling) 267; [1844] NSWSupC 7

certiorari - appeals, criminal

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 3 May 1844

Source: Dowling, Select Cases, New Series, S.R.N.S.W. 2/3468, p. 113

The Supreme Court has jurisdiction to issue a writ of certiorari to review a conviction by an inferior court, said to be irregularly obtained, even in circumstances where there is no error on the face of the record and a writ of error would not lie.*

The prisoners were convicted at the last Quarter Sessions for the county of Cumberland held on the 4th April and sentenced to twelve months imprisonment and hard labour, each in Parramatta gaol, upon a information "presented by Alfred Cheeke Esquire, prosecuting on behalf of Her Majesty" charging them with feloniously receiving certain goods knowing them to have been stolen.

On Friday the 26th last month a rule nisi was obtained on behalf the prisoners for a writ of certiorari to remove the record of conviction into this Court, on affidavit stating amongst other special grounds, that the gentleman in whose name and by whom the information was presented and prosecuted had no lawful authority for that purpose, and that the conviction was therefore wholly void and must be quashed accordingly. The rule was made returnable on Monday the 29th April and having been served on the Clerk of the Peace for the county of Cumberland on that day the Solicitor General prayed that the rule might be enlarged until the next day to give him an opportunity of conferring with the Attorney General for the purpose of shewing cause; to which the Court would have yielded but the prisoner's Counsel resisting, except on conditions to which the Solicitor General did not accede. He afterwards offered no resistance to the rule being made absolute, and accordingly the writ was ordered to be issued, returnable yesterday Thursday the 1st of this month. No writ of habeas corpus was applied for at the same time to bring up the prisoners to be present on the return of the writ. The writ was directed to the justices generally of New South Wales and to the Clerk of the Peace, and was served on the latter officer.

Yesterday, W.M. Manning Esquire, Chairman of the Quarter Sessions and one of the justices assigned to keep the peace for New South Wales, except for the city of Sydney and town of Melbourne and parts adjacent, made a return to the writ, and wished to do so under protest, on the ground that he was not bound to obey the writ as directed; but the Court overruled his objection, and the return was read on the motion by the prisoner's counsel that the return be filed.

The Attorney General and Solicitor General moved that the writ be quashed for having been improvidently issued, inasmuch as after judgment and sentence by the Court of Quarter Sessions the proceedings could not be removed by certiorari into this Court, and could only be brought under review by writ of error. And that if such a course, when adopted, would not effect the object which the prisoners had in view, their remedy was to apply to the crown for a pardon for the supposed mistrial. There were several less cogent objections made to the Courts allowing the return to be filed. 1. That the writ was applied for behind the back of the law officers of the crown, without notice; 2. That the writ was not directed to any justices by name; and 3. That the prisoners ought to be present by habeas corpus, before the Court could deal with the matter of the return.

Much weight was not attached to these objections, it appearing to the Court first, that the practice in such cases was to serve the writ on the Clerk of the Peace; Secondly - that it might be addressed (according to precedents) to the justices generally without naming them; and thirdly that if the presence of the prisoners was necessary, they might be brought up by habeas corpus to be dealt with when the matter of the return came to be considered.

The substantial question then was whether, after conviction and judgment for felony at the Court of Quarter Sessions, this Court had authority to remove the record of conviction by certiorari for the purpose of quashing it, not for error on the record, but on facts extrinsic of the record. This question was argued at great length and many cases having been cited, the Court reserved its judgment.

Dowling C.J. Most undoubtedly the question raised by this proceeding is one of grave importance, and having called for, has received our anxious consideration. The question has never been solemnly decided by this Court, although it was evidently raised in the case of R. v. Puckham in March 1841, in which the legality of the conviction was impeached upon a similar objection to that which is supposed to invalidate the proceedings in the present instance. In the argument addressed to the Court, no express decision was cited adverse to the exercise of the jurisdiction, which it was contended this Court possesses, to review by certiorari, in a summary manner, errors either of fact or of law, into which courts of inferior jurisdiction may have fallen in the exercise of their powers. It seems to have been conceded that the decided cases in the courts at home have established that in general the superior courts of record will not review the decisions of an inferior court of competent jurisdiction after conviction and judgment, except by writ of error; but it is acknowledged, on the other hand, that on a writ of error, the superior court could only look to the record, and would not allow the truth of it to be impeached by extrinsic evidence or proof of facts de novo what is returned as a matter of record.

Taking it to be indisputable that the record in the present instance is perfect on the face of it, and that it does not disclose errors of law, it must be admitted that the prisoners could not avail of a writ of errors, as they would be estopped from shewing extrinsic facts going to the very root of the jurisdiction of which the record seemed to present as indisputable evidence in point of legal formality. If this be the right position (and the authorities go to that length) the prisoners could gain no advantage by being driven to a writ of error if their object was to shew that the proceedings of the Court below were coram non judice, in point of fact, however seemingly right they might be in law, as appeared by the record. Bringing a writ of error under such circumstances would be a dilatory and expensive process without any useful result in the way of substantial justice. Remediless then as the prisoners would be by such a proceeding (if their objection be founded in a fact not on record) the question is whether this Court has authority to protect them from the consequences of a supposed illegal conviction.

It may be that the prisoners might have immediate recourse to the executive to relieve them from the effect of an illegal conviction, but I apprehend that before they were driven to that mode of proceeding they would have a right to ascertain in the first instance, whether the highest judicial tribunal in the land could afford them redress by law, before they resorted to the last extremity of appealing to the sovereign justice of the crown.

The true question then, is, whether this Court has inherent powers to afford redress, unfettered by the technicalities of writ of error, and may not at once inquire into the proceedings of the Court below, and ascertain by extrinsic evidence whether their jurisdiction has been exercised according to law as already observed. No case has been cited expressly adverse to the exercise of such a power in the Queen's Bench at Westminster, but because the reported cases have been only those in which the certiorari has been issued before conviction and judgment, it was contended that they amounted to a tacit inhibition of the right to a certiorari after conviction and judgment. It was however not contended that this Court was absolutely prohibited by express decision from the exercise of a discretion in the matter. This admission certainly ought not to influence the decision of the Court, unless they were satisfied on principles of law that such a discretion could be exercised. Taking the concession in its widest latitude, the Court would not and could not act upon it as a wild and arbitrary discretion, but a discretion governed by a sober, reasonable and judicious exercise of power with reference to the immutable principles of public justice, and dictates of sound reason.

This Court is the creature of the act of Parliament, 9 Geo. 4 c. 83 (1828) and as a Supreme Court has conferred upon it all the powers of the four Courts at Westminster. Vested with the like jurisdiction as the Queen's Bench, it has the power of correcting and examining all manner of errors of fact and in law of all justices, in their judgments, process and proceedings: Coke Institutes , 18th ed., London, 1823, p. 71. "Its jurisdiction is very high and transcendent. It keeps all inferior jurisdictions within the bound of their authority, and may either remove their proceedings to be determined here; or prohibit their progress below. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition": Blackstone's Commentaries , Vol. 3, p. 42. The only difficulty in the present case is as to the form and manner in which the powers thus conferred are to be exercised.

It is not disputed that a writ of error would not reach the alleged objection to the conviction of these prisoners. Then how is redress in point of law to be afforded in a case of this kind? The supposed objection to this conviction is that the party in whose name and at whose instance the prosecution has been instructed had no legal authority for his interposition as prosecutor on behalf of the crown. If this suggestion be well founded in point of fact, it cannot be denied that it is a vital defect in the jurisdiction of the Court, as much so, indeed, as if the persons who tried him were without commission. The proceedings would be coram non judice. But taking it to be well settled that this Court, with the jurisdiction of the Queen's Bench at Westminster, can not by certiorari remove the proceedings of a court of competent jurisdiction for mere errors of form on the record, but would compel the party complaining to bring his writ of errors after he had suffered the opportunity to go by way of moving in arrest of judgment in the court below, still that principle seems not to govern the case, where the objection goes, not to the form, but the substance of the jurisdiction exercised by the inferior court.

For this there are diverse authorities. It may be that they are of some antiquity, but I apprehend they are not the less to be respected as the depositories of the best principles of English law. In M. Bacon's A new Abridgement of the Law , 7th ed., London, 1807, Vol. 2, p. 451 citing Coke Institutes , Vol. 3, p. 231 and Hawkins Pleas of the Crown , London, 1824, ch. 50, s. 3, it is laid down that "any judgment whatsoever, given by persons who had no good commission to proceed against the person condemned, may be falsified by shewing the special matter without writ of error, because it is void; as where a commission authorized to proceed on an indictment taken before A. B. & C. and twelve others, and by colour thereof the commissioners proceed on an indictment taken before eight persons only".

Again in the same book citing Croke's Reports (1596-7), p. 489, "If a man is found guilty upon an indictment of felony, and prays his clergy, which is allowed him, and he is burnt in the hand; he cannot avoid this by a writ of error, because he is convicted only and not attainted. But the record being removed by certiorari into the crown office, if there be a fault in this indictment, it may be discharged and restitution awarded to the party if his goods seised for that cause". In the same page, citing Phorbes case (1682) [ Phorbes case (1682) Raym. Sir T. 433] is another passage, which in connexion with a subsequent passage in page 452 of the second volume of the same work, is most pertinent to the present case, as shewing that certiorari is the proper mode of setting right the alleged error of this conviction. "If a man had been indicted upon the statute of 3 Jac. 1 c. 4 (1605) for absenting from his parish church, and thereupon proclamations had been made, that he should render his body &c, which not being done, he had been convicted according to that statute; yet no writ of error would have lain thereupon, for by the statute after proclamations made and the default recorded, the same was a conviction of the offence, as if the statute gave process for the forfeiture and if there was a fault in the record the party's remedy was in the Exchequer to quash it there". Following out this principle it is laid down in the same book that "Where ever a new jurisdiction is erected by act of Parliament, and the court, or judge, that exercises this jurisdiction, acts as a court or judge of a court of record, according to the course of the common law, a writ of error lies on its judgment; but where they act in a summary method, or in a new course different from the common law, there a writ of error lies not, but a certiorari".

"A judgment may be falsified, reversed or avoided in the first place without a writ of error, for matters foreign to or dehors the record, that is, not apparent upon the face of it; so that they can not be assigned for error in the Superior Court, which can only judge from what appears in the record itself ... Thus if any judgment whatsoever be given by persons, who had no good commission to proceed against the person condemned it is void; and may be falsified by shewing the special matter, without writ of error". (Blackstone's Commentaries , Vol. 4, ch. 30, p. 390).

Now applying this principle to the present case it is perfectly cogent in favour of the certiorari. The Courts of Quarter Sessions in this Colony are created by Parliament and their proceedings are regulated by local Acts, and are not instituted according to the course of the common law, though they have a common law jurisdiction. By the course of the common law all indictments and presentments are found by grand jury of 23, 12 of whom must concur in the bill or presentment of finding. By the statute 9 Geo 4 c. 83 all informations are to be prosecuted both in the Supreme Court and at Quarter Sessions in the name of the Attorney General, but in consequence of the inconvenience of requiring the Attorney General to attend Quarter Sessions, power is given by 4 Vic. No. 22 (1840), s. 10 to the Governor to appoint any officer or officers by whom and in whose name all crimes &c cognizable in the Courts of General and Quarter Sessions may be prosecuted. This is a new course, different from the common law, and if the course pointed out has not been pursued, or the power of the Governor not properly exercised it seems that the error is to be corrected not by writ of error, but by certiorari.

In the absence of any express authority fettering the salutary control which this Court ought to exercise over the proceedings of inferior courts of this Colony, I do not see how we can resist the present motion. The Court has no desire to claim to itself a jurisdiction which might interfere with the fair and legitimate discharge of the functions of such courts; but living in a remote English colony this Court is bound not to abridge the rights of Her Majesty's subjects in having the mode in which the law is administered in subordinate jurisdictions tested by the principles of English jurisprudence. It is possible, though I persuade myself utterly improbable, that in such jurisdictions grievous errors in fact might be committed, even in violation of the first principles of natural justice, and yet if this Court were not open to afford a speedy remedy public justice might be brought into contempt.

It may be that the wretched men whose interests are concerned in the present application may have been righteously convicted on the merits of their case, but if there be any well founded objection to the legality of their conviction, this Court cannot deny them any remedy which the law will afford. We cannot look to the convenience or inconvenience to which this, as a precedent may be supposed to lead, but are bound to discharge the functions committed to us for expounding and upholding those principles of justice which are the best safe guard of society. I am of opinion that the certiorari has not been improvidently issued, and that the return thereto must be filed.

Published by the Division of Law, Macquarie University