Skip to Content

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

R. v. Mann (1844) NSW Sel Cas (Dowling) 258; [1844] NSWSupC 10

magistrate, appointment of

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 12 February 1844

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

The grant of a new commission to justices of the peace of the city of Sydney and the county of Cumberland was a pro tanto discharge of commission granted to magistrates to act in the territory of New South Wales generally; held, conviction by two such magistrates be quashed.*

Dowling C.J. The defendant was summarily convicted by two justices in penalties for keeping an unlicensed spirit still contrary to 3 Vic. No. 9 (1839). The conviction having been returned by certiorari into this Court, it was moved on the 5th of this month by the defendant's counsel that it be quashed: first for want of summary jurisdiction; secondly for want of general jurisdiction in the justices; and thirdly for want of form, in not shewing that the penalties were sought to be imposed at the instance of a proper party. The first and last of these objections were founded on the construction of 3 Vic. No. 9, s. 44 and the second on affidavit, that the offence was committed out of the jurisdiction of the convicting magistrates.

It was objected by the Attorney General that the first ought not now to be entertained, even if tenable, inasmuch as notice was not distinctly given of it in the affidavit on moving for the certiorari, in pursuance of the English statute, for altering and amending the several laws relating to the customs 7 Geo. 4 c. 48 (1826), s. 17. Had that Act been in force in this Colony and applicable to a case of this kind, most undoubtedly such an objection could not have been allowed to be taken by the defendant, unless it had been stated in the affidavit for the certiorari. But as that Act is not in force and as there is no similar provision contained in the Act on which this conviction was founded, the Court is not at liberty to exclude it from consideration. It is true that the objection occurred to the Court itself upon reference to the clause in the local ordinance which purports to give jurisdiction to the justices, but though not taken by the defendant's counsel, until pointed out, the Court could not resist the force of a difficulty which went to the very foundation of the authority of the magistrates.

What then is this objection? By 3 Vic. No. 9, s. 44 it is enacted "that all fines, forfeitures, and penalties imposed by this act, may be recovered before any two justices, or the Judges of the Supreme Court, or in the Court of Vice Admiralty of the said colony". There is here no jurisdiction given to the justices to proceed in a summary manner, and consequently their jurisdiction could only be exercised after the manner of proceeding in the Supreme Court or in the Court of Vice Admiralty, neither of which court has any summary jurisdiction for offences against the Act. The conviction shews that the justices below have exercised only a summary jurisdiction, as judges of the law and of the fact, and therefore it is obvious that they had no authority to proceed in that manner.

It is a first principle that the examination and punishment of offences in a summary manner by justices of the peace out of their sessions and without the intervention of a jury or an open trial, are founded entirely upon a special authority conferred and regulated by the legislature. No new offence is cognizable in that manner unless expressly made so by an act of the legislature, and all the proceedings under an authority so created must be strictly conformable to the regulations prescribed by the special law in each instance, from which all their force is derived: Payley's Law and Practice of Summary Convictions by Justices of the Peace, 2nd ed., London, 1827, p. 15. It is too plain for argument that these justices had no summary jurisdiction to convict and consequently their proceedings were wholly void.

The objection to the form of the conviction is that it does not shew that the penalties have been imposed at the instance of the party pointed out by the legislature. By the 44th section the penalties imposed by the Act are to be recovered "at the instance of any inspector of distilleries, or any superior officer of Customs". Now it is not shewn by the record of conviction at whose instance the proceedings were had. All that it says is, that the defendant "was duly convicted before the justices upon an information in that behalf exhibited before them"; without saying at whose instance. It is true that in awarding the distribution of the shares of the penalty, one moiety is to be paid to the Colonial Treasurer for the use of Her Majesty to be applied to the public use of the Colony, and "the other moiety to be paid to Robert Cassels, the person having sued for the said penalty". Who Robert Cassels is does not appear, whether he be an inspector of distilleries, a superior officer of customs, or a common informer is left uncertain.

Although it be the case that the Court can intend nothing in favour of a conviction, and will intend nothing against it, R. v. Hazell (1810) [ R. v. Hazell (1810) 13 East. 139, 104 E.R. 321], yet all the authorities hold that the record of conviction must distinctly shew that the justices have not only jurisdiction in the matter, but that they proceeded on competent evidence. It is clearly settled and cannot now be questioned, that the informer himself cannot be a witness, unless made so expressly by the Act, wherever he is entitled to the whole or any share of the penalty on conviction. Here the Act says that the penalties are to be recovered at the instance of any inspector of distilleries, or any superior officer of customs, and by the 50th section it is declared that such persons, or their assistants, shall be deemed competent witnesses notwithstanding that they may be entitled to the penalties. No authority is given by the Act to impose penalties at the instance of a common informer and non constat but these penalties were imposed at the instance of a common informer, and that the conviction was founded upon his evidence. We cannot come to the conclusion by intendment that they were not so imposed. It must be made to appear on the conviction that they were not so. We think the conviction ought to have shewn that the justices were set in motion at the instance of an inspector of distilleries, or of a superior officer of Customs, the only persons pointed out as the responsible prosecutor for penalties before the justices, and having failed to do so, the conviction is defective on that ground.

The remaining and perhaps more serious objection is that, supposing any justices of the peace to have a summary jurisdiction to convict under the Act and that the formal objection ought not to prevail, yet these gentlemen had no jurisdiction as territorial magistrates of New South Wales, to convict for an offence alleged to have been committed in the county of Cumberland. By the record of conviction the magistrates are described as "two of Her Majesty's justices of the peace in and for the said colony", and the offence is stated to have been committed "at a certain house and premises situate near the city of Sydney in the parish of Alexandria in the county of Cumberland in the Colony aforesaid".

It is now sworn that the names of these justices are included in general commissions of the peace issued by His Excellency the Governor in the name of Her Majesty, prior to January 1843, to act as justices, either alone or in conjunction with other justices assigned before to act as justices for the territory; but that on the 2nd January 1843 a general commission under the hand of Sir George Gipps and the seal of the Colony, was issued whereby certain gentlemen therein named were assigned by Her Majesty to be justices for the city of Sydney and the adjacent county of Cumberland in the said Colony, and that the names of neither of the convicting justices appears in that general commission; and that no subsequent commission has been issued in which the names of these gentlemen are included as justices for the county of Cumberland. It is further sworn that this conviction took place at Parramatta which is within the county of Cumberland.

By the Sydney Corporation Act, 6 Vic. No. 3 (1842), s. 64, it is enacted "That it shall be lawful for the Governor of New South Wales for the time being, or person administering the Government, from time to time, to assign to so many persons as he shall think proper, the commission of the peace, to act as justices of the peace in and for the said city as well as for the adjoining county, or for any more or less extensive jurisdiction which the said Governor may deem it proper to confer. Provided always that the persons so appointed shall be resident within the city, or within seven miles thereof, and that no unpaid magistrate be so appointed, who is not qualified to be a citizen of the said city, and to vote as such in elections under the provisions of this act". The language of this Act would import that a power is given to the Governor of his own authority and in his own name to assign commissions of the peace for the persons to act as justices for the city of Sydney, as well as for the adjoining county of Cumberland. It appears however, that His Excellency has not exercised the power in the terms so enacted, but by the general commission of the 2nd January 1843 Her Majesty has assigned certain gentlemen to act as justices for the city of Sydney and the adjacent county of Cumberland under which it is sworn that certain gentlemen by name have acted as justices both in and out of sessions, in the city of Sydney.

The substantial objection then to the jurisdiction of the convicting justices is that the general commission of the 2nd January 1843 for the city and county of Cumberland, in which their names are not included, had the effect, quoad the county of Cumberland of ousting their jurisdiction over offences committed within that part of the territory and the question is, whether in law, the Commission for the city and county had not the effect ipso facto of superseding pro tanto the general commission under which these gentlemen acted as territorial magistrates. On consideration we are constrained to hold, that the Commission for the city of Sydney and the adjoining county of Cumberland, had the effect of including the jurisdiction of these gentlemen as territorial magistrates, in taking cognizance in Cumberland of offences committed within that county. It is true that the Commission assigning the justices for the city of Sydney and county of Cumberland does not contain any ne intromittent clause, and therefore, it was contended that the jurisdiction of the territorial justices could not be ousted without express words, and the cases of Blankley v. Winstanley (1789) [ Blankley v. Winstanley (1789) 3 T.R. 279, 100 E.R. 574] and R. v. Sainsbury (1791) [ R. v. Sainsbury (1791) 4 T.R. 451, 100 E.R. 1113] were cited, and it was insisted that at all events the territorial justices had a concurrent jurisdiction within the city and Cumberland justices. But the reasoning referable to the construction of charters does not hold when applied to mere commissions issued at the pleasure of the crown, which may be determined at the will of the crown without cause assigned. There is this obvious distinction between county magistrates nominated directly by the crown in a general commission of the peace, and magistrates of chartered towns; that when the crown issues a charter of incorporation ordaining that the mayor and aldermen by the elected inhabitants shall virtute officii be magistrates of the town, the inhabitants have in effect the power of nominating their own magistrates, and if there be nothing in the charter in derogation of the rights of the crown, or it contains no ne intromittant clause, there is nothing to prevent the crown from issuing a commission to other magistrates by name, including the town within their general jurisdiction. Here the local and the territorial justices derive their authority respectively by name from the Governor as representative of the sovereign.

The object of the commission for the city of Sydney and county of Cumberland must, if it meant anything, have been to give exclusive jurisdiction to the local justices over offences committed within the prescribed locality, else why should such a commission be issued? It could not have been intended to create a conflicting jurisdiction and give to both the local and the territorial magistrates respectively a concurrent jurisdiction over offences committed solely within the local division of the territory. It is a general rule that all commissions issued at the pleasure of the crown, unless otherwise expressed, are determinable by the like expression of the royal will. The power that created these justices may discharge them by the simple issuing of a non commission, having the effect of superseding their authority. That part of the commission under which these gentlemen acted which would cover the county of Cumberland as part of the territory of New South Wales, before the local commission was issued, ceased to be operative in the county of Cumberland, that county having been carved out of the territory as an exclusive jurisdiction for local offences. The general territorial commission it may be observed contains no such power as is contained in commissions of the peace in England "to act for the territory as well within local jurisdictions, as without"; and the simple point is whether the issuing of the new commission for the local purposes of the city of Sydney and adjacent county of Cumberland does not ipso facto amount to a repeal of so much of the territorial commission, as had theretofore included every part of the territory.

Even if there were no authority for holding the affirmative, the point would appear to us to require no express decision. It might be tested by principle, and governed by the incontrovertible position that the issuing of a new commission, for the same purpose or object by the same authority, supersedes any previous commission for the like purpose or object, unless the contrary is expressed in the new commission.

Mr Justice Blackstone, Commentaries, Vol. 1, p. 353, observes that "As the office of these justices is conferred by the King, so subsists only during his pleasure", and is determinable in several ways. Amongst others enumerated by the learned commentator is "By a new commission which virtually though silently discharges all the former justices that are not included therein; for two commissioners cannot subsist at once". This very position has been recognized and declared as incontrovertible by Parliament. The statute 2 & 3 P. & M. c. 18 (1555) after reciting that commissions had been theretofore directed as well to mayors and other inhabitants of corporate towns not being counties themselves, as also unto other persons dwelling out of the towns corporate, for keeping the peace within the same towns, and for delivering the gaols there; and that after granting such commissions, their Majesties had granted divers other like commissions unto certain worshipful and other learned men of the shires &c for the conservation of the peace, and also delivering the gaols of their shires &c "which commissions so bearing a later day have been a supercedeas and clear discharge unto all and singular the said former commissions granted unto the said cities and towns corporate not being counties in themselves; so that the said mayor &c have been charged to sue for the renewing again of such commissions both for the peace and gaol delivery, to the great expense, costs and charges of the said mayor &c and to the great protracting and delay of justice therein the mean time", proceeds to enact that a commission of the peace and gaol delivery for a shire &c shall not be a supercedes to a former commission granted to a city or a town corporate not being a "county of itself". This is clearly a legislative affirmative of the principle of which we are compelled to act in determining that the territorial justices had no jurisdiction in Cumberland, although here the converse of the principle so recognized comes into operation.

We are bound to hold from the fact of a new commission being issued by Her Majesty for the city of Sydney and county of Cumberland, that it was thereby intended to supersede so much of the territorial commission as previously included Cumberland as a portion of the territory. We must collect this intention from the language of the commission. If a commission for instance issues in 1841 and a new one issues in 1842, omitting names which were contained in the first, it must be taken to be a clear though silent indication, that the persons omitted are no longer magistrates. By the same rule of construction we apprehend it must be held that when the Governor in the name of Her Majesty in 1843 issued a general commission and thereby authorized other persons, not being territorial justices to act in and for a limited portion of the territory, it was intended to supersede pro tanto the jurisdiction of the territorial justices by the local general commission. If this conclusion be right, that the issuing a new commission for the whole territory absolutely supersedes an old one, it follows from parity of reasoning that a new commission for a portion of the territory to other magistrates not being territorial magistrates must be taken as the intended determination of the authority of territorial justices to act within the limited jurisdiction.

On all the grounds taken we are of opinion that the conviction must be quashed.

Published by the Division of Law, Macquarie University