[witnesses, privilege from arrest]

In re Robertson

Supreme Court of Van Diemen's Land

Montagu J., 6 May 1834

Source: Colonial Times, 13 May 1834[1]

            Mr. Horne applied to the Court, on behalf of Mr. Gilbert Robertson, to obtain the latter gentleman’s discharge from an arrest, which had taken place within the last hour. Mr. Horne grounded his application on the fact, that Mr. Robertson knowing he would be required to give evidence in a case which would come before His Honor tomorrow, came to town last night, and was arrested before his subpoena could be served upon him.

            His Honor said, if affidavit of the facts were made, he would issue an order for his discharge.

            Mr. Horne immediately obtained Mr. Robertson’s affidavit, and His Honor directed the officers to discharge Mr. Robertson; he also told them that they had no right to arrest any person who might be either on the way to an attendance upon, or on his way from that Court when subpoenaed. Reasonable time also must be allowed for his return home.

Source: Colonist, 13 May 1834

On the first day of the Sessions, Mr. Horne addressed the Court, on behalf of Mr. Gilbert Robertson, stating, that having come to town, knowing that he was to give evidence in the Supreme Court in some case for the defence, he was arrested by the Sheriff’s Officers, Mr. Lyons and Mr. Walton. He now claimed his discharge out of the Sheriff’s custody, but having not been served with an Subpoena, it was necessary to proceed on affidavit, which was accordingly done. The affidavit set forth the Mr. Robinson [sic] had come to town for the purpose of giving evidence in the Supreme Court, where upon Mr. Justice Montagu ordered his discharge forthwith, giving the Officers to understand, that it was no consequence whether a witness came for the Crown or the defence, he was equally entitled to protection, and a witness so situated was not only allowed reasonable, but ample, time to return to his residence. [This case is of the greatest importance, as it serves to record the recognition of a privilege of the subject not generally understood in the Colony, viz., that every man’s own house is his castle, in which he may defend himself from all intruders, except officers in the execution of a warrant for treason, (which cannot be committed here very easily, so far as Magistracy is concerned) felony, or breach of the peace, such officers being authorised by law to force their way; and that if on any given subject be required as an evidence for the ends of justice to attend a judicial enquiry -- he is protected from civil arrest to and from the Courts – Ed. Col.]

Notes

[1] Robertson was an opponent of Governor Arthur's and used The Colonist and the True Colonist to attack him, see M. Godfrey, 'Gilbert Robertson (1794-1851), Australian Dictionary of Biography, vol. 2, pp. 384-5.