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

Kinchella on the Patrick Plains Bench, 1834

1834: Opinion of Attorney General John Kinchella on the proceedings of Patricks Plains Bench.


 

From Colonial Secretary's Papers, Main Series of Letters Received, 1833, 4/2182.1, State Archives and Records New South Wales. 


 

This opinion was solicited by Governor Richard Bourke's administration in the wake of a government inquiry into the treatment of assigned convicts on the Castle Forbes estate in the Hunter Valley. The inquiry, conducted at Patricks Plains (Singleton) between 19 and 27 December 1833, followed a revolt by six convicts employed by the settlers James Mudie and John Larnarch which resulted in the hanging of five men. 

See R v Hitchcock and others [1833] NSWSupC 114 < http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1833/r_v_hitchcock_and_others/>


 

On the Castle Forbes Revolt and the subsequent Commission of Inquiry, including transcripts of the bench proceedings referred to here, see David Andrew Roberts, 'Masters, Magistrates and the Management of Complaint: The 1833 Convict Revolt at Castle Forbes and the Failure of Local Governance', Journal of Australian Colonial History, Vol. 19, 2017, pp. 57-86.


 


 


 

Colonial Secretary Office, Sydney 13th January 1834.


 

To John Kinchella Esq. Attorney General.


 

Sir, 

I have the honour by command of His Excellency the Governor to request your opinion as to the legality of the proceedings of the Bench at Patrick Plains on the Trial of Hitchcock, Ryan, Jones and Parrott with reference to the following circumstance stated by William Cook constable and Lock up housekeeper on the late enquiry by the Solicitor General and Mr Hely into the treatment of the assigned servants of Messrs Mudie and Larnach.

There were (he says) I think six or seven witnesses, and there might be as many as five or six whose Depositions were taken in the adjoining room, the witnesses were not in court at all when the depositions were taken, but when they (The Prisoners) were brought up the witnesses were resworn they were then read and the Prisoners asked if they had any questions to ask. The case was remanded from one court day to another. It was the first day that depositions were taken in the room. The Prisoners did not complain of it at the time. They cross-examined the witnesses. There was a great deal of court business that day and I believe it was done to expedite the business.

Mr Alfred Glennie Clerk to the Bench at Patrick Plains says

"It has occurred more than once but very seldom that the depositions have been taken before the Prisoner was called in but in those cases the witnesses were sworn in the prisoners presence, and the depositions previously written were then read out to the Prisoner".

I have further the honour to request your opinion on the legality of the Punishments, in the case of David Jones, copies of the Depositions in which are herewith transmitted. It would appear he was punished twice for the same offence on the Evidence of two individuals see the enclosed papers marked 8 and 9. 

I have the honor to be

Alexander McLeay.


 


 


 

Attorney Generals Office 14th January 1834.


 

To The Honorable The Colonial Secretary


 

Sir,

I have the honour to acknowledge the receipt of your letter of yesterdays date by command of His Excellency the Governor requesting my opinion as to the legality of the Proceedings of the Bench at Patrick Plains on the Trial of Hitchcock, Ryan, Jones and Parrott with reference to the following circumstance stated by William Cook constable and Lock up house keeper on the late enquiry by the Solicitor General and Mr Hely into the treatment of the assigned Servants of Messrs Mudie and Larnach.

There were he says six or seven witnesses and there might be as many as five or six whose depositions were taken in the adjoining room. The witnesses were not in court at all when the depositions were taken but when they were brought up the witnesses were re-sworn; ([in the margin] the prisoners) they were then read and the Prisoners asked if they had any questions to ask. This case was remanded from one court day to the other. It was the first day the depositions were taken in the Room the Prisoners did not complain of it at the time. They cross examined the witnesses. There was a great deal of court business that day and I believe it was done to expedite the business. Mr Alfred Glennie clerk to the Bench at Patrick Plains says, it has occurred more than once but very seldom that the depositions have been taken before the Prisoner was called in but in those cases the witnesses were sworn in the Prisoners presence, and the depositions previously written were then read out to the Prisoner.

And further requesting my opinion on the legality of the punishments in the case of David Jones, and transmitting copies of the depositions, and stating that it would appear from the enclosed papers marked 8 and 9 that he was punished twice for the same offence on the evidence of two individuals. 

In reply I have the honour to state to you for the information of His Excellency that it is the general principal of Law in all criminal cases that the evidences of the witnesses should be given in the presence of the Prisoner, that he may have the opportunity of cross examination, yet on the authority of a late case where there was an appeal from a conviction of the Magistrates where it appears that the examination of the witness was taken in the absence of the Prisoner, and that on the following day in the presence of the Prisoner the deposition of the witness was read over and the witness affirmed to the truth of it but was not resworn the conviction was set aside on this ground, from this authority it appears to me that if the witness was afterwards in the presence of the Prisoner resworn to the truth of the deposition previously taken, and the deposition read over to the Prisoner so that he might have an opportunity of cross examining the witness the conviction would have been supported. This mode of proceedings is however I conceive irregular and objectionable as a witness in the absence of a Prisoner might state facts that he would not do in the presence of the Prisoner, and though he would afterwards on oath affirm his statement to be true, yet this affirmation might be made from a fear of the consequences to himself of contradicting his former swearing, and the principal of directing the evidence to be taken down in the presence of the Prisoner arises from the advantage to be derived from a viva voce Examination, when the manner and countenance of the witness will enable the court to form a judgement of his veracity.

In the present case it appears from the evidence of the constable that though the depositions of the witnesses were taken the first day in the absence of the Prisoners yet the witnesses were afterwards re-sworn in the presence of the Prisoners before their depositions were read over, and the witnesses were cross examined by the Prisoners themselves on those depositions, and therefore on the authority of the above case I think the conviction legal.

About however a point might arise in this case which has not been stated Viz whether the witnesses were sworn before or after their depositions were taken down in the absence of the Prisoners, as the court of Kings Bench in a late case have expressed a strong disapprobation of the practice of taking the deposition without the witness being sworn in the first instance in order that the party should be under the sanction of an Oath at the time he gave his Testimony.

Respecting the case of the Prisoner David Jones though the several sentences of seventy five and twenty five lashes appear on the return of the Magistrates to have been passed for several offences yet on reading over the evidence in each case they appear to have been passed for one and the same offence, and as the hearing of the case was on the same day the magistrate could not have been ignorant that the two sentences were passed for the one offence, for the neglect of losing the sheep arose from the Prisoner having absenting himself from his station at night. The loss of the master by the Prisoners absenting himself from his station and the charge was a serious one and the magistrate might not have thought the sentence of fifty lashes which alone he was enable to pass for absenting himself and thereby neglecting his charge (being I presume his first offence) sufficient punishment. But still I conceive it was irregular and illegal for the magistrate to divide the charge into two offences for the purpose of increasing the punishment.

I have the honor to be

Sir Your most obedient servant

(Signed) John Kinchella.


 


 


 

Colonial Secretary Office, Sydney 17th January 1834.


 

To the Bench of Magistrates at Patrick Plains.


 

Gentlemen,

The Governor having observed certain cases amongst those extracted from the Records of the Sessions at Patrick Plains by the Solicitor General and the Principal Superintendent of Convicts, His Excellency thought it proper to take the opinion of the Attorney General upon the regularity of the proceedings, and I have now the honour to transmit to you the copies of the opinion of that officer [14 January 1834] to you on the subject for your instruction and future guidance. With respect to the case of R. Nagle who was punished with twenty five lashes for refusing to work on a Sunday I also enclose your extract of a communication which His Excellency thought it necessary to make to that mans master on his particular case, as well as upon the general observance of the Sabbath on the Farms of Settlers. To this he has only to add that if the conduct of the master was reprehensible in bringing his servant forward for punishment for such an act, that of the Magistrates was more so for ordering the punishment to be inflicted.

The Governor having remarked upon those cases which appear to him to require notice. I am directed to add that upon the whole of the Evidence produced before the Commissioners in the late investigation at Patrick Plains, there is a general impression of confidence in the impartibility and integrity of the Bench which has afforded His Excellency great satisfaction.

(Signed) Alexander McLeay.

Published by the Division of Law, Macquarie University