Skip to Content

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

Editorial on Late Circuit Court [1853] NSWSupCMB 9

circuit courts

Source: Moreton Bay Courier, 26 November 1853, p. 2


THE Circuit just terminated in this town, has suggested three or four subjects which our duty impels us to being thus prominently forward, although upon two of them we have before offered a few observations.

In the first place, the proceedings on the writ of Habeas Corpus, on Thursday last, fully prove the soundness of the views put forth in this journal on the 5 th of the present month, on the subject of Stipendiary Magistrates. Here we have a man originally committed to gaol, and condemned to hard labour, contrary to the law of the land. A second warrant is sent down to replace the first, and a third to replace the second; yet the very latest document is at once rejected as illegal when brought before a proper tribunal; and the very conviction upon which the warrants were founded is pronounced to be as invalid as all the rest of the proceedings. The man gets his liberty after having thus been under restraint for about two months, contrary to the law of the land. There could not be a better plea for Stipendiary magistrates, who would devote a little more attention to the Statutes.

The next circumstance is one that also too fully justifies former anticipations in this journal. The witnesses in the case of the aboriginal charged with the murder of the late Mr. TREVETHAN, were not forthcoming, as we feared would be the case; and all that the Crown Counsel could do was to get the recognizances estreated---a procedure which, in the case of many men in the bush must be a perfect farce. The prisoner is remanded for six months, and at the end of that time he will probably be added to the long list of aboriginal offenders who have already escaped the penalties due to their crimes. The laws of a country should be adapted to the exigencies of the times; and it appears highly desirable that some more serious punishment than an imaginary forfeiture of £40 should be inflicted upon persons who shrink from giving their testimony in cases of murder. We look upon such persons as little better than accessories. It is only right to state here that the Acting Crown Law Officer performed his duty well in seeking, by a second indictment, to prevent the escape, through any legal objection, of the aboriginals convicted of the late robbery near Ipswich . Such escapes operate only as an encouragement to the evilly disposed native blacks.

A case of assaulting that was tried on Tuesday, suggests the consideration whether Benches of Magistrates ought not to be invested with a more extended jurisdiction than at present, in cases of assault. The court was occupied during the greater part of the day in investigating a case of very common-place character; and it appears to us that, in order to avoid a repetition of such expensive proceedings upon a slight occasion, a full Bench of Magistrates, sitting once a month, and presided over by a Police or other Stipendiary Magistrate, should have the power to inflict a fine of £20, or six months' imprisonment, in any case of assault for which the present maximum of £5 might appear an inadequate punishment.

The brief remarks ought not to be closed without as reference to the late melancholy case of alleged manslaughter in the Burnett district. It is far from our wish to add one feather's weight to that deep remorse which must exist for that fatal event: but the succession of tragical incidents that have been recorded in the local papers within the last three months, and all either remotely or directly connected with excessive indulgence in habits of intoxication, should operate as a solemn warning to others who are on the same path. Ion the bush, owing to the absence of all ordinary means of diversion, the temptation to drink has great power; but we may hope that the striking and melancholy examples that have lately been afforded, will at least have due effect upon those who should lead the way in better things.

Published by the Division of Law, Macquarie University