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

Ex parte Cole [1898] NSWSupC 1

Aboriginal defendant, liquor laws, Aboriginal evidence

Supreme Court of New South Wales

Cohen J., 12 August 1898

Source: Sydney Morning Herald, 13 August 1898

IN CHAMBERS.

(Before Mr. Justice Cohen.)

A CONVICTION SET ASIDE. Ex parte Cole.

Mr. Mason, instructed by Messrs. Curtiss and Barry (agent for Mr P J Commins, of Coonabarabran), appeared on behalf of James Cole and moved to make absolute a rule nisi granted on July 29 last by which C E Oslear, P M , of Coonamble, Kenneth Murchison, John M'Master, William George Blackman, and Edward May-Stears, Js. P., and David Menary, police constable, had been called   upon to show cause why a decision on July 13 last, at Coonabarabran, should not be set aside. There was no appearance on the part of respondents. It appeared that on the date mentioned Cole, an aboriginal, was charged on the information of Menary that he did, on May 11 last, supply George Barr, auother aboriginal, with spirituous liquor contrary to the Act 31 Vic , No 16, section 1. At the hearing the Bench refused to hear the evidence of the accused and two witnesses, one being an aboriginal and the other a half-caste, on the ground that they did not know the nature of an oath. They also re- fused to take a declaration from them as provided by section 313 of the Criminal Law Amendment Act. The accused was fined 10s and costs, in default seven days' imprisonment, and he now appealed on the following grounds - 1. That the police magistrates aud justices were wrong in rejecting evidence of wit- nesses called in defence of the accused on the ground only that they were incompetent to take an oath 2. That they wero wrong in not allowing witnesses for the accused to give evidence in his behalf by making a declaration as prescribed by section 343 of the Criminal Law Amendment Act.

His Honor granted the prohibition, following tho decision m the case of Regina v. Lewis, Knox's Reports, page 8.

Published by the Division of Law, Macquarie University