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

R. v. Hodges and Lynch (No. 2) (1844) NSW Sel Cas (Dowling) 273; [1844] NSWSupC 8

certiorari - appeals, criminal

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 21 May 1844

Source: Dowling, Select Cases, New Series, Vol. 2, S.R.N.S.W. 2/3468, p. 146 and Select Cases and New Series, Vol. 3, S.R.N.S.W. 2/3469, p. 1

Certiorari will lie to challenge a verdict given by the Court of Quarter Sessions of the basis of evidence extrinsic to the record; held, on examination of the evidence, the objections raised to the verdict of the Court of Quarter Sessions were without foundation.*

On the 3rd of the present month, in term time, the Court ordered the return to the certiorari for bringing up the record of the conviction of these prisoners at the Quarter Sessions held at Parramatta in April last, to be filed.

Thereupon the Court, at the prayer of the prisoners' counsel, made a rule for enlarging the term until Wednesday the 8th of this month, in order that the matter of the return might be disposed of, and a writ of habeas corpus having been issued in the mean time, namely on the 6th, to bring up the bodies of the prisoners to be present, on the motion for revising the judgment, they were accordingly on that day brought into Court by the keeper of Her Majesty's gaol at Parramatta.

The Attorney General, having suggested that he had had no time to read the affidavits filed on behalf of the prisoners, and no sufficient opportunity afforded to him for taking the necessary steps to have them answered, the Court at his prayer, again by rule for that purpose, enlarged the term until Monday the 13th of this month, and in the mean time remanded the prisoners to their former custody and ordered them to be brought up again on that day under the same writ. The Attorney General at the same time undertaking to allow the prisoners' attorney as of grace to take copies of such affidavits as were intended to be used in answer to the motion for reversing the judgment. Accordingly on Monday the 13th of this month the prisoners were again brought up and the gaoler's return to the writ of habeas corpus having been read and on motion filed, and the return to the certiorari already in court being produced, the prisoners' counsel moved on affidavits, setting forth matters extrinsic of the record, that the judgment of the court below be reversed.

Cause was shewn by the Attorney General and the Solicitor General on affidavits in answer to those filed on the part of the prisoners and the arguments not being concluded on that day, the Court again, by rule, enlarged the term till the next day, and in the mean time committed the prisoners to the custody of the Sheriff, and ordered them to be brought into court on that day. Accordingly they were brought up again on Tuesday the 14th and the argument was resumed and the prisoners' counsel (Mr Foster and Mr Windeyer) having been heard in support of their rule, the Attorney General claimed and was allowed, in virtue of his office, the general reply. Whereupon the Court ordered the prisoners to be remanded to Parramatta gaol, to be brought up again in this present 21st May, and made another rule for enlarging the term until this day to hear such judgment in the matter of their application as the Court should be advised to pronounce.

Dowling C.J. Although the Court decided on a former day before argument (3rd of this month) that "after conviction and judgment for felony at the Court of Quarter Sessions, this Court has authority to remove the record of conviction by certiorari for the purpose of quashing it (not for error on the record, but for facts extrinsic of the record)", yet if persuaded by the more elaborate second argument on the 13th of this month (which the law officers of the crown were permitted to enter into), that its first decision was erroneous, the Court would have had no hesitation in retracing its steps on more advised consideration.

We confess that notwithstanding the proper jealousy which this Court ought to entertain of the introduction of novelties into the administration of the law, and with that becoming reverence which we trust the Judges will in their remote dependency ever entertain for the wisdom of Westminster Hall, our opinion has not been shaken by what was addressed to us in the recent very able argument as to the soundness of the principle on which the certiorari was granted. Yielding respect to the weight of authority, that errors on the records of a court constituted by the course of the common law could only be reviewed by writ of error, the Court would have denied the certiorari in this instance on that ground, except for the purpose of assigning errors of record; but constituted as the Courts of Quarter Sessions in this Colony are, in one most vital, important and integral part of its jurisdiction, in a manner contrary to the course of the common law, we were bound to hold that we were not fettered by any decision in refusing the certiorari for the purpose of shewing matters dehors the record, and establishing by extrinsic facts that the whole proceedings against these prisoners were void in their inception.

The gist of the first objection to the judgment pronounced on the prisoners is that the information on which it was founded was not presented by an officer properly authorized by law for that purpose. If this were an objection apparent on the record, it is not necessary now to decide whether it must not be brought under review by writ of error. The only use which could be made of such a defect on the record would be as evidence confirmatory of the extrinsic circumstances or at all events not negating such circumstances.

Adverting to this objection, the first question to be determined is whether the Courts of Quarter Sessions in this Colony are instituted in all particulars according to the course of the common law. Secondly, if they are not, whether the deviation is of any serious importance. And thirdly, if the deviation be of serious importance, whether a departure from the course pointed out by the legislature can be taken advantage of in this Court by certiorari in a summary manner by affidavits, shewing the departure.

First by the course of the common law of England no man can be put on his trial for felony, but on presentment by a grand jury, twelve of whom must concur in finding the indictment, not only on their own oaths but on the oaths also of witnesses to sustain the bill. By the New South Wales Act, 9 Geo. 4 c. 83 (1828), the institution of grand juries in the administration of criminal justice is withheld, not only in the Supreme Court but in the Courts of Quarter Sessions, and in lieu thereof all crimes cognizable by those courts respectively shall be prosecuted in the name of the Attorney General or other persons appointed for that purpose by the Governor of the Colony. It is quite obvious therefore, that the Courts of Quarter Sessions of the Colony, are not, in this particular, instituted after the course of the common law, although the subsequent proceedings after the presentment of an information by the Attorney General or other person appointed for that purpose, may be conducted according to the course of the common law.

Secondly, is the deviation of importance? Whatever may be the diversity of opinion in modern times, as to the utility or inutility of grand juries in the administration of criminal justice, the people of England have in all times regarded the institution with sacred reverence as one of the best safeguards of life and liberty. Indeed to guard against the admission of improper persons on grand juries, various statutes have been passed to remedy the mischief which had arisen to innocent subjects from indictments found against them by improperly constituted grand juries, contrary to the course of the common law. The statutes 11 Hen. 4 c. 9 (1409) and 3 Hen. 8 c. 12 (1511-12) (which were passed in times not remarkable for abstinence from the adoption of arbitrary principles) were amongst others ordained to remedy such evils. By the last mentioned statute "our said Lord the King for the greater care and quietness of his people, willeth and ordaineth, that indictments so made with all the dependence thereof, be revoked, annulled, void, and held for none for ever: And from hence forth no indictment be made by any such persons, but by inquest of the King's lawful liege people, in the manner as was used in the time of his noble progenitors, returned by the Sheriffs &c and if any indictment be made hereafter in any point to the contrary, that the same indictment be also void, revoked, and for ever held for none".

On the construction of this statute it has been held, that offences not capital are as much within it as indictments for treason and felony, and also that it applies to indictments before justices of the peace as much as indictments before superior justices: Hawkin's Pleas of the Crown London, 1824, ch. 25 ss 24, 25. Coke, Institutes, Vol. 3, p. 34 in commenting on these statutes, says "And these laws, made for indifference of indicters ought to be construed favorably, for that the indictment is commonly found in the absence of the party, and yet it is the foundation of all the rest of the proceeding". Regarding it therefore as a first principle of the common law of England, that no man shall be put in jeopardy for felony but by the concurring oaths of at least 24 indifferent persons, i.e. of 12 grand jurors to find the bill and of 12 petty jurors to condemn him, this Court sitting in an English colony founded by English people, cannot but deem the constitution of the Quarter Sessions in this Colony as involving a most vital departure from the course of the common law.

Thirdly, it being incontrovertible then, that there has been a deviation from the course of the common law, and that such deviation if of vital importance, the next question is whether any objection can now be made, in a summary manner on affidavit, of extrinsic circumstances shewing that the course pointed out by the legislature in substituting a crown prosecutor in lieu of a grand jury has not been followed, or in other words that the person standing in lieu of a grand jury has not been lawfully constituted to perform the duties of a grand jury. If the person so appointed be not appointed according to the mode pointed out by the legislature, we apprehend it to be too plain for argument that the objection would be as available to a prisoner as if he had been indicted by a grand jury improperly impaneled. Indeed we may say that it would be a multo fortiori available because of the wide departure from the common law, in the adoption of this anomalous contrivance to dispense with grand juries. The only difficulty that has arisen here is whether these prisoners are not now out of time, the objection (if well founded and allowable to be proved by affidavit) not being made until after trial, conviction and sentence.

In the construction of the statute 3 Hen. 8 c. 12 it has been held ( Hawkin's Pleas of the Crown , Vol. 2, ch . 25, s. 26) that a person arraigned upon any indictment taken contrary to the purview thereof, may plead such matter in avoidance of the indictment and also plead over to the felony. Again it is laid down "That a person outlawed upon any such indictment without a trial may also shew in avoidance of the outlawry, that the indictment was taken contrary to the purview of the statute. But if a person, who is tried upon such an indictment, take no such exception before his trial, it may be doubtful whether he may be allowed to take such exception afterwards, because he hath slipped the most proper time for it; except it can be verified by the records of the same court where in the indictment is depending, as by an outlawry in such court of one of the indicters &c in which case it is said, that any one as amicus curia may inform the Court of it": Coke, Institutes Vol. 3, p. 34.

Giving full effect to the proposition that in ordinary cases a prisoner shall be estopped from making formal objections after arraignment, trial, conviction and judgment (which is no doubt a sound principle) still if by law it can be made to appear by affidavit upon the return to a writ of certiorari into this Court that from circumstances he was prevented by available means from making the objection in the court below, it would be hard upon a prisoner if he were told that the time was gone by, no matter how palpable the error might be. Now had the prisoners the means or opportunity of taking the supposed objection to the appointment of the gentleman in whose name they were in fact prosecuted?

Assuming that we are at liberty to look to the affidavits filed on both sides in this case it appears that on the 3rd January 1844 Mr Rogers the Clerk of the Peace, received a commission from the Governor appointing him to be Crown Prosecutor at the Parramatta sessions, and on presenting it to the chairman and other justices assembled on that day, the bench after hearing counsel, and Mr Nichols, an advocate, pronounced the commission to be wholly void and Mr Rogers did not act.

At that session an information was lodged against the prisoners in the name of Mr Cheeke as Crown Prosecutor, he having a commission issued prior to that of Mr Rogers, to which they pleaded without making any objection to Mr Cheeke's acting. The trials of the prisoners were postponed until the following April sessions, when another information was filed against them in the name of Mr Cheeke, to which they pleaded, were tried, convicted and sentenced without any objection that Mr Roger's commission superseded Mr Cheeke's, or that Mr Cheeke had then no sufficient authority to act as Crown Prosecutor. At the trial, Mr Nichols, the prisoners' new attorney, acted as their advocate. It may be that Mr Nichols as their advocate might at both sessions have taken the objection that Mr Rogers' commission superseded Mr Cheeke's but after it had been solemnly decided that Mr Rogers' was void, it would have been an idle ceremony to take the objection, he himself being one of the gentlemen who had in the January sessions contended for its invalidity. At the April sessions it was not known that no new commission had been issued to Mr Cheeke and it was not in fact known until the 24th April after the sessions had terminated.

Taking it as a sound rule that the prisoners were bound to make the objection at the trial (if they knew of it), it seems that it would have been unavailing to them, after the sessions had adjudged Mr Roger's commission to be void, and as it was not known to them at the trial, either that no new commission was issued to Mr Cheeke, or that there was any supposed infirmity in his old one, we do not think that the prisoners should now be prevented from impeaching the judgment, if it can be impeached in the manner proposed.

The case of R. v. John Dickinson (1819) [ R. v. John Dickinson (1819) 1 Russ. & Ry. 401, 168 E.R. 866] is an authority for holding that an objection not known to the prisoner or the court until after conviction will not preclude him from the benefit of it, if it goes to the legality of his trial. There the prisoner had been convicted of cattle stealing, but after conviction it appeared that the witnesses had attended before the grand jury without having been sworn. The learned Bayley J. thought the objection came too late and therefore passed sentence upon the prisoner, but reserved the point for the consideration of the Judges and the case being afterwards considered, they without deciding as to the validity of the objection recommended a free pardon. In that case the fact of the irregularity would not have appeared on the record, and could only have been got at by extrinsic evidence, and though it be not an authority for the mode of correcting the error in this case, by certiorari, yet it shows the cautious jealously with which the Judges of England regard the due administration of justice. It might appear to some an unimportant objection that the witnesses were not sworn before they went before the grand jury, when they were afterwards sworn on the trial, and the prisoner righteously convicted by the petty jury on the merits of his case. Still the Judges must have held that he was not lawfully convicted upon an indictment duly presented according to law, though presented by the grand jury on their oaths. In effect the principle of the objection in the present case (if well established) resolves itself into the question, has this information been duly presented by a quasi grand jury duly appointed in the manner prescribed by law?

Taking it that the objection could not be made available at the trial, that it is not one appearing on the record, that it could only be established by extrinsic evidence, and that the mode of initiating the trial is contrary to the course of the common law, has this Court the power of correcting the alleged error in the way proposed? Conceding that a writ of error lies and that the prisoners may assign errors of fact, and that an issue is the proper mode of trial by the country, what process have we for directing the trial of such an issue? The authorities cited in our former decision shew that the jurisdiction of the Quarter Sessions, being constituted in a vital branch of its proceedings, contrary to the course of the common law, the judgment may be falsified by shewing the special matter without writ of error. How then can this Court reach the special matter except upon affidavit?

In a vast variety of cases both criminal as well as civil, this Court is in the habit necessarily of determining facts in incidental proceedings upon affidavit; and in principle there seems nothing repugnant to the course of justice in determining by affidavit the question raised on these affidavits; whether, for the purpose of the validity of this judgment, the gentleman appointed to conduct this prosecution was duly appointed under the act of Council by which he holds his commission.

We are not called upon to (nor would we upon a collateral issue of this kind) determine the right of this gentleman to hold the office he claims to hold. The proper legal mode of determining that question would be by writ of quo warranto, to which he would be a party, and as far as his rights are concerned they might then be solemnly determined. But for the purpose of this case, and as regards the position of the prisoners, the Court has authority to ascertain as a fact whether his appointment is in pursuance of the power of appointment vested in the Governor under the local Act , and from whom he derives his commission.

Two objections were made to the validity of Mr Cheeke's appointment as Crown Prosecutor, prior to the 30th December 1843. First, that it was superseded by the appointment of Mr Rogers in January 1844, and secondly, that supposing Mr Rogers' appointment had not that effect, Mr Cheeke's original appointment was not conformable to the act of Council under which he was appointed, and no proper commission having been issued to him, authorizing him to act in presenting an information against these prisoners, the judgment was void as being coram non judice.

We shall address ourselves to the latter objection in the first instance. By the 4 Vic. No. 22 (1840), s. 10 after reciting the statute 9 Geo. 4 c. 83 by which all crimes cognizable by the Supreme Court should be prosecuted by information in the name of the Attorney General or other officer appointed for such purpose by the Governor and that all crimes (not committed by transported felons) should be prosecuted and tried before the Courts of General Quarter Sessions in the Colony in the same manner and subject to the same rules in every respect as trials in the Supreme Court; and reciting the expediency of appointing separate officers to prosecute in all trials for crimes within the limits of Port Philip and New Zealand (when it was a dependency of the Colony) respectively as well as in the Courts of General Quarter Sessions throughout the Colony; proceeds to enact "That until grand juries be established therein, it shall be lawful for the Governor to appoint from time to time some fit and proper person for Port Philip, and a like person for New Zealand (such persons being respectively barristers of England or Ireland) by whom and in whose name all crimes &c cognizable in the Supreme Court of New South Wales and in the several Courts of General Quarter Sessions (save as excepted in the recited Act ) shall be prosecuted within the aforesaid limits of Port Philip and New Zealand respectively "and also that it shall be lawful for the said Governor to appoint any officer or officers by whom and in whose name all crimes &c cognizable in the several Courts of General Quarter Sessions in all other parts of the said colony may be prosecuted except as aforesaid. Provided always that nothing herein contained shall be construed to limit or control any authority vested by law in Her Majesty's Attorney General for the said colony".

From this provision it appears that the power of appointing the officer or officers in whose name all crimes may be prosecuted at Quarter Sessions is vested in the Governor absolutely, without any reservation of the pleasure of the crown. This being a new office, and the power of appointment being conferred unreservedly on the Governor himself and subject indeed to no condition whatsoever, the question is, whether the power has been exercised in the manner in which it has been conferred?

We are now to look to the most material affidavit produced on this point, namely, that of Mr Cheeke himself, from which it appears, that by a commission under the Great Seal of the Colony and the hand of the Governor dated 2nd June 1841, in pursuance of 4 Vic. No 22 he was appointed "during the pleasure of the Governor, and subject to the approval of Her Majesty her heirs and successors" to be and act as such officer in the Act mentioned, and to be the person by whom and in whose name all crimes, misdemeanors and offences, not being committed by transported offenders, cognizable in the several Courts of Quarter Sessions to be held in all parts of the Colony, save and except Port Philip and New Zealand, should be prosecuted", which commission was duly enrolled in the office of the Colonial Secretary and also in the Supreme Courts, which commission he accepted, and in pursuance thereof took the necessary oath of office before one of the Judges.

The affidavit, then goes on to state that by warrant under the Royal Sign Manual dated 11 January 1842 he was confirmed in his office of Crown Prosecutor and thereupon letters patent under the Great Seal of the Colony and the hand of the Governor were issued and duly enrolled, dated 2nd August 1842, by which he was appointed Crown Prosecutor in the territory of New South Wales "during the pleasure of Her Majesty Queen Victoria". It is further sworn that he has never been removed or suspended from, nor ever resigned his office, and hath always acted and still does act as such Crown Prosecutor under and by virtue of the first commission issued by the Governor, and under and by virtue of the warrant under the Royal Sign Manual, and under the second commission issued by the Governor. In conclusion, the affidavit states that on deponent's return from Maitland in January last, he had an interview with the Governor, at His Excellency's request, and was then informed by the Governor, that he was fully authorized to conduct the prosecutions which he had already conducted on behalf of the crown, as well as any therein after to be conducted in the said several Courts of Quarter Sessions respectively.

The commissions under which this gentleman has been appointed have not been produced for inspection, but we must now take it from his own representation of their contents that by the first he held the office "during the pleasure of the Governor, and subject to the approval of Her Majesty, Her Heirs and Successors", and the second not during the pleasure of the Governor but "during the pleasure of Her Majesty Queen Victoria". If as is sworn by Mr Cheeke that he is designated both in the Queen's warrant, and in his second commission as "Crown Prosecutor", it is to be observed that the Act under which he is appointed contains no such designation, the words being "officer by whom and in whose name all crimes &c may be prosecuted".

Disregarding this however, as not a very material circumstance, can we say judicially that either of these appointments is not in pursuance of the authority under which the power is conferred by the legislature? The local ordinance it is true, confers the power on the Governor himself, alone without any reservation, either of his own pleasure or that of Her Most Gracious Majesty. As representative of the crown for ministerial purposes, the duty is properly imposed upon His Excellency of communicating the appointment and taking the pleasure of Her Majesty upon it; but we apprehend that the appointment itself should be in pursuance of the Act of the legislature by which the office was created. If this be not so, what limit is to be put upon departures from the mode and manner in which the legislature confers powers? This may be said to be a very strict objection, to which perhaps much weight ought not to be attached in the ordinary transactions of mankind. But when it concerns the validity of the lawful authority of a functionary to act in the place and stead of grand jury in the administration of a vital part of the criminal justice of the country, and who is armed with the power of saying in his discretion who shall and who shall not be put on trial by informations in his name, this Court cannot shrink from the duty of looking upon it as a most serious objection (if it can be maintained), involving much more important consequences than the interests of the prisoners now before the Court.

The jealously with which, even in olden time, the legislature has guarded against the unlawful constitution of grand juries, has been already pointed out, and the strictness noted with which the Judges of England in R. v. Dickinson gave a prisoner the advantage of an error almost of mere form. These considerations warn this Court of the necessity of seeing that justice is administered in this Colony by authorities properly constituted by law and in such form only as the law has provided.

On the argument of this case the prisoners' counsel prayed in aid of the record itself as confirmatory of the extrinsic evidence that Mr Cheeke had not been appointed in pursuance of the Act , for it was urged that had he been so appointed the record would have alleged the fact. The information begins thus: "Be it remembered that Alfred Cheeke Esquire who prosecutes for our Sovereign Lady the Queen in this behalf, being present in the Court of General Quarter Sessions of the peace now here &c informs the said court &c". This certainly does not give any notification that Mr Cheeke is an officer by whom and in whose name the crime may be prosecuted in pursuance of the act of Council. The Court could not take judicial notice that Alfred Cheeke Esquire was an officer so appointed. Of the Attorney General and the Solicitor General the Court are bound to take judicial notice as known law officers of the crown; but of a private individual by name without any designation of his authority to perform the functions of a Crown Prosecutor the Court cannot take such notice. They may privately notice that the gentleman so named is competent for the office, but not that he is a duly appointed officer to prosecute on behalf of Her Majesty unless it is made so to appear.

The defect in the record thus pointed out was not permitted to be taken as matter of error, inasmuch as no notice had been specifically given of it by the prisoners' law adviser, but reference to it was, we think, properly allowed as a circumstance to be taken in connection with other evidence dehors the record. Whether on a writ of error (if this be a case in which error lies) or by assignment of error, the record being now before the Court the objection would not be absolutely fatal, we are not now called upon to determine. It is enough for us to decide whether Mr Cheeke had a sufficiently good commission from the Governor to act as an officer in whose name all crimes may be prosecuted within the jurisdiction of the Courts of Quarter Sessions. Mr Cheeke swears that he has so acted under his first commission (which has never been revoked) and under the warrant with the Royal Sign Manual and also under second commission or letters patent.

Upon full consideration we are of opinion that Mr Cheeke's commission of the 2nd June 1841 sufficiently constituted him to be the officer in whose name crimes were to be prosecuted at Quarter Sessions, and that the power of the Governor has been exercised by him in a manner not open to any objection available to the prisoners. It is true that that commission appoints him "during the pleasure of the Governor, and subject to the approval of Her Majesty Her heirs and successors". Although the local ordinance does not contain either of these conditions, yet the introduction of them by the Governor as representative of the Sovereign, does not in our opinion vitiate the commission that they may, and be rejected as mere surplusage. They are but supplemental to the fact of appointment by the Governor. There is certainly an informality in introducing these conditions, but as the Governor has in fact exercised the power conferred upon him by the legislature in appointing this gentleman, the annexation of the conditions, though not imposed by the Act, can not be held by this Court as rendering the commission void. Whatever defects there may in the subsequent commission issued to Mr Cheeke founded on the warrant under the Royal sign manual, we think that as Mr Cheeke has a good commission not superseded, and under which he has acted, the second may be treated as inoperative. The mode in which the Governor has exercised his power by importing into the commission conditions not contained in the Act , has certainly raised doubt and difficulty, but on the whole we are satisfied that the commission is not void, though open to the objection of great irregularity.

Were we not satisfied on this point, the Court would have been greatly embarrassed in dealing with the other objection, namely that supposing Mr Cheeke's commission to have been properly issued still it has been superseded by a subsequent commission issued to Mr Rogers for the same identical purposes, and duly notified in the Government Gazette.

Mr Rogers states in his affidavit, that whilst he was attending as Clerk of the Peace at the Parramatta Quarter Sessions on the 3rd January last, a commission from the Governor appointing him Crown Prosecutor, was forwarded to him from the Colonial Secretary's office, without any previous intimation to or request from him, and without any enrolment to be derived there from. Immediately by order of the Court he read the commission aloud, and thereupon it was objected by the barristers present, and by Mr Nichols attending as advocate, that the commission was wholly void, and the matters objected being considered, the Court pronounced it to be void accordingly. The Court then adjourned the next day.

On the next day Mr Cheeke performed the duties of Crown Prosecutor, and continued to do so during that and the subsequent session in April when these prisoners were convicted. It does not appear that Mr Rogers has surrendered his commission and for anything to the contrary he still holds it. He does however, state that he has not claimed to execute, and has not executed or qualified by taking any oath of office, or otherwise to claim or execute the office of Crown Prosecutor, and has never been admitted an advocate at the Quarter Sessions, but on the contrary is and has been excluded therefrom by a rule of court made in pursuance of 4 Vic. No. 22. From the affidavit of Mr G.W. Newcombe, a Clerk in the Colonial Secretary's office, it appears that according to the usual practice, notices of appointments are prepared and dated at the same time as the commissions, and that at the time of issuing the commission to Mr Rogers to act as Crown Prosecutor there was prepared and sent to the Government Gazette, a notice of such appointment, intended to appear on the 5th January last, but before the publication he was informed, and believed that it was decided by the Governor, that Mr Cheeke should continue to act as Crown Prosecutor, but from some oversight no order was sent to the Gazette Office not to insert the notification of the appointment of Mr Rogers, and the notification was therefore by mistake published on the 5th January. It does not however appear that this mistake has ever been corrected, and consequently it must be taken that Mr Rogers still stands gazetted as Crown Prosecutor, and has not yet surrendered his commission.

Much discussion took place before us as to the effect of Mr Rogers' commission and the publication of his appointment in the gazette as having the legal consequence of superseding Mr Cheeke's commission. The latter gentleman swears that he never resigned his commission. If so, it would follow that until a vacancy was created, the Governor could not appoint any one in his stead. It was however argued by the Attorney General that Mr Rogers' appointment was consistent with that of Mr Cheeke, for by the peculiar wording of the local ordinance, the Governor might appoint more than one Crown Prosecutor for the Quarter Sessions for the words were "officer or officers". But we think that those words must be read distributively, and do not import a power of appointing any number of officers for the same Quarter Sessions.

It would seem that after Mr Rogers' appointment and before it was published, some communication took place between the Governor and Mr Cheeke and the chairman of the Quarter Sessions respectively, in which oral arrangement was made that Mr Cheeke should continue to act as Crown Prosecutor under his commission. Still we have the somewhat anomalous fact of two persons holding commissions at the same time from the same authority for the performance of the same duty, an irregularity which has led to considerable embarrassment. It is true that the Quarter Sessions adjudged Mr Rogers' commission to be void, and we are not prepared to say that as a court of record the Sessions had not full power and authority to determine upon the fitness and qualifications of an officer presented to them for the conduct and dispatch of such important duties as those of Crown Prosecutor, notwithstanding that Mr Rogers held a commission for the purpose. To hold otherwise would on public grounds deprive a court of justice of a most important privilege, and lay it open to have, perhaps, the most unfit person thrust into an office concerning the administration of justice for which he was wholly unqualified. Setting aside this consideration, there are the important facts that Mr Rogers, never qualified for the office, nor accepted, but on the contrary repudiated it.

Taking it now that the appointment of Mr Rogers was a mere mistake, fallen into without due consideration of the legal consequences and that Mr Cheeke must still be regarded as the officer appointed by the Governor in whose name crimes were to be prosecuted, we are bound to hold, for the reasons already given, that that gentleman's commission has been made in sufficient compliance with the act of Council, although we cannot but think that His Excellency was ill advised in issuing a commission with the supplemental conditions thereto attached. These conditions have given rise to the laborious discussion which has ensued which might easily have been avoided by adhering to the terms of the power conferred by the local legislature.

The second objection to the judgment of the prisoners, was that they were tried at Quarter Sessions held simultaneously with a session of gaol delivery of the Supreme Court and consequently that the jurisdiction of the Quarter Sessions was thereby superseded. It is sworn that on the 2nd April last in pursuance of the Governor's proclamation the Quarter Sessions at which these prisoners were tried, were held at Parramatta, and adjourned from day to day until the 4th April when this trial took place and that on the 1st, 2nd and 3rd days of the same month the Supreme Court was sitting at the court house at Woolloomooloo as a court of oyer and terminer and general gaol delivery. These facts not being denied, we are called upon to determine that the Quarter Sessions had no authority to try these prisoners, pending the sittings of the Supreme Court in its criminal jurisdiction.

It was contended that although the prisoners were in fact tried on a day when the Supreme Court was not actually sitting, that made no difference, for in law, the sittings of the Quarter Sessions are but one day, and that if they had no power to sit on the 2nd April they had none on the 4th April for which Inter The Inhabitants of St Andrew's Holborn and St Clement Danes (1704) [ Inter The Inhabitants of St Andrew's Holborn and St Clements Danes (1704) 2 Salk. 606] was cited - an authority not now questionable.

It is not to be denied that this Court, by the statute 9 Geo. 4 c. 83 which created it, has the jurisdiction of all the four Courts at Westminster, and specially the supreme jurisdiction of the Queens Bench over all causes criminal. By that statute it is at all times a court of oyer and terminer and general gaol delivery; and if the principles applicable to the Queens Bench at Westminster can come into operation in this Colony, it follows as a necessary consequence that no Court of Quarter Sessions can exercise its powers in any part of the Colony so long as this Court sits. If the actual sitting of the Supreme Court as such be the test, such consequence cannot be gainsaid in as much as this Court is sitting almost throughout the year alternately in its several common law, equitable, criminal and insolvency jurisdictions; for though but one judge may sit in the exercise of these several jurisdictions at a time, still each sitting is in law, a sitting of the Supreme Court. The mere sitting of the Court for criminal causes only would not supersede the powers of the Quarter Sessions. The sitting of the Court for any purpose would have the like effect. The whole of the Colony is in law but one county as respects the jurisdiction of this Court. It is not divided into separate counties as in England. Nay the commission of the peace is not directed to magistrates of any particular districts or counties, but the magistrates appointed by the crown are justices for the whole territory except for the district of the city of Sydney and the town of Melbourne, into which separate commissions issue.

If therefore the Supreme Court is to be regarded in the same light as the Queen's Bench at Westminster, its sittings at any time (which may be throughout the whole year) would give rise to the opportunity for insuperable objection, that no Court of Quarter Sessions can exercise its powers in any part of the Colony during any such sittings. Does however this most alarming and mischievous consequence follow? We apprehend not. The jurisdictions of the Supreme Court and of the several Quarter Sessions of this Colony are severally created by the same statute, and derive their authority from the same common source. The Supreme Court has the like jurisdiction as the Queen's Bench at Westminster, but it does not follow that it has exclusive jurisdiction over offences, triable by the Court of Quarter Sessions. The same Act that institutes the Supreme Court, also institutes Courts of Quarter Sessions, and gives to these Courts the like jurisdiction as is vested in Courts of Quarter Sessions in England as well as an extensive summary jurisdiction over transported offenders.

The Supreme Court may have all the jurisdiction of the Queen's Bench without becoming "the Queens Bench" and it may have every possible portion of that jurisdiction to all intents and purposes without its appropriating to itself also the fiction upon which the supposed analogy is founded, that the Sovereign is actually present in person to preside over its administration. Were it not for this fiction ( M. Bacon, A new Abridgment of the Law , 7th ed., London, Vol. 1., Blackstone's Commentaries, Vol. 4, p. 265.) it would be difficult to contend that even the sitting of the Queen's Bench in England would interfere with the power of any other court. Supposing however that this Court is simply to be regarded as the Queens Bench, we are of the opinion that its sittings would not interfere with the sittings of the Quarter Sessions in this Colony. The Courts of Quarter Sessions in England are not created by statute, neither are courts of oyer and terminer. They sit in England in each county by virtue of the Queen's commission. It is true they sit quarterly by statute; and they have also by statute conferred upon them certain criminal jurisdiction; but still they derive their powers from the royal commission issued to justices individually as justices of the peace.

In this Colony the several Courts of Quarter Sessions are instituted as "Courts" specially by name, by virtue of the same statute which gives jurisdiction to this Court. Admitting therefore that this Court and the Queen's Bench have respectively the like jurisdiction, still the Quarter Sessions here have a concurrent jurisdiction in criminal cases similar to that exercised by Quarter Sessions in England notwithstanding the sittings of the inferior court, subject however to the superior, and supreme control of this as the Supreme Court of the Colony. By the statute 9 Geo. 4 c. 83, this Court is vested with the power of fixing the times and places at which it shall hold its sittings. Is then the jurisdiction of the Quarter Sessions over matters properly within their powers to depend upon the time and place at which this Court shall fix its sittings. This anomaly has been guarded against by the legislature, in creating Courts of Quarter Sessions distinct and separate from the Supreme Court, quite independently of the principle on which Quarter Sessions exist in England. The power of fixing the time and place at which such Courts should be held, was not provided for in like manner the sittings of the Supreme Court, and hence it became necessary for the local legislature to interpose. Accordingly by 3 Wm 4 No. 3 (1832), s. 14 power is vested in the Governor to fix the times and places at which such sittings shall be held, to be notified in the Government Gazette.

It may be that there is no declaration that the sittings of the Supreme Court shall not operate as a supersession of the sittings of such courts, but such a declaration, upon the plain construction of the statute which created them was wholly unnecessary. All the fiction which is applicable in England to the paramount presence of the Queen's Bench in a county into which a commission is issued really falls to the ground and is wholly inapplicable to the jurisdiction of the county (for such it must be regarded for the purpose of this argument) of New South Wales, which has two separate jurisdictions created by the statute, subject only to the control of the Supreme Court over the separate inferior jurisdiction. We are not driven to arguments of convenience or inconvenience in so holding, but are bound so to determine from the plainly expressed intention of Parliament in providing for the due administration of justice in New South Wales in the Supreme Court and the Courts of Quarter Sessions respectively.

It appears to us therefore that the seemingly cogent objection to the sittings of the Quarter Sessions in this case concurrently with those of the Supreme Court in its criminal jurisdiction is really without foundation. The Judges by rule of court fixed its sittings for the 1st April without reference to the Quarter Sessions, and the Governor in virtue of the local Act appointed the Quarter Sessions to be held at Parramatta at the same time, but as he had the power of so doing, it appears to us that there is no analogy between the sittings of this Court and that of the Queen's Bench sitting in an English county into which a commission from the crown had issued to justices or others to constitute a court of oyer and terminer.

Admitting it to be doubtful whether this Court has exercised lawful authority in granting a certiorari for the purpose of correcting errors of fact alleged to have been committed by the Quarter Sessions in matters not appearing upon the record, these prisoners have had the advantage of a most elaborate investigation of their case, and after full deliberation we are of the opinion that in this mode of proceeding there is no ground for disturbing the judgment, and consequently they must be remanded to fulfill the sentence of the court below. If they have any other remedy for disturbing the judgment, they must take such steps for that purpose as they shall be advised.

Let the prisoners be remanded to Her Majesty's gaol at Parramatta.

Published by the Division of Law, Macquarie University