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

In re Frost [1853] NSWSupCMB 1

habeas corpus - master and servant

Supreme Court of New South Wales, Moreton Bay

Stephens C.J., 24 November 1853

Source: Moreton Bay Courier, 26 November 1853, p. 3


Mr. Faucett, with whom was Mr. Macalister as Attorney, moved his Honour that Solomon Frost, at present a prisoner in Brisbane gaol, under warrant by the Warwick Bench, be brought up under a writ of Habeas Corpus which had been sued out. The application was founded on a recent Act of Council, 17 Victoria, No. 39, which received the Royal assent on the 12th of the present month, and is intituled "The Justices Act Amendment Act." This Act is to be read as part of the 14th Victoria, No. 43, and gives power to a Judge on Circuit to act in certain cases in which the full Court was before alone empowered to act. In moving the Court to discharge the prisoner, the learned counsel stated that although none of the depositions taken before the bench at Warwick were before the Court, it appeared from the affidavit of Frost that he had been taken before the Magistrates at Warwick, consisting of Messrs. Hay, Wienholt, and Mackenzie, charged with having made a verbal engagement with Mr. George Gammie, that he had failed to enter upon this engagement, and that the magistrates had sentenced Frost to three months' imprisonment in Brisbane gaol, with hard labour.

The objections taken to the proceedings of the magistrates, and to the warrant on which Frost had been imprisoned (although it appeared that no less than three separate warrants had at different times been forwarded to the gaoler at Brisbane in this case,) were as follows:---

  1. That the Magistrates had no jurisdiction under the second section of the Masters' and Servants' Act, 9th Victoria, No. 27, (that being the section under which they must have acted,) to entertain a case of this description, it being necessary that the said Solomon Frost (the agreement not being in writing) should have entered into the service of the prosecutor under that agreement.
  2. The warrant purported to be the warrant of three magistrates, but was only signed by two.
  3. That if the conviction was under the second section of the said Act, the warrant was bad, because it imposed hard labour on the defendant, which that section did not empower.
  4. That the warrant stated no specific offence by which the court could judge whether the sentence was right or wrong, or under which section the defendant was convicted.
  5. That the warrant did not follow the form of the conviction given by the said Act.

The learned counsel was about to proceed in urging other objections, when his Honour intimated that it was unnecessary; that the warrant was a most illegal document; and that any one of the objections already urged would be fatal to it. In giving judgment, his Honour stated that while there existed no doubt that the defendant must be discharged, yet as the depositions in the case at Warwick had not been obtained, the statute required that the magistrates should have notice before final judgment was given. As, however, he had power to discharge the defendant either with or without sureties, he would at once release him on his own recognizance. A document handed to the Court by the Gaoler, and stated to have been forwarded as the recorded conviction in the case, was returned by his Honour, who remarked that it was not sworn to as the conviction, and therefore he could not take notice of it. If it really was the conviction, he could only say that it was as bad as the warrant.

The judgment was that the defendant Solomon Frost be released on his own recognizance of £50, to appear before the bench at Brisbane on the third Monday in January next, to submit to such order as may be then made; and that in the meantime the magistrates and the before mentioned George Gammie be called upon to show cause before the Supreme Court in Sydney on the third Monday in next term, (December) why the prisoner's discharge should not be made absolute.

Frost then entered into the required recognizance, and was discharged.

Published by the Division of Law, Macquarie University