[habeas corpus - press freedom - gaol delivery - Supreme Court, powers over gaol - Montagu J., criticism of]

Ex parte Robertson

Pedder C.J. and Montagu J., 16 June 1835

Source: True Colonist, 19 June 1835[1]

Tuesday June 16th before His Honor the Chief Justice and Mr. Justice Montagu

Ex Parte Robertson

Mr. J.T. Gellibrand moved for Writ of Habeas Corpus, ad subjieciendum, to bring Gilbert Robertson before the Court, in order to be discharged from Gaol. Mr. Gellibrand moved on the affidavit of Gilbert Robertson, which was as follows:-

Van Dieman’s Land }

To Wit. }

IN THE SUPREME COURT.

Gilbert Robertson, of Hobart Town, yeoman, maketh oath and saith, that at the Assizes held in March last, he was tried and convicted in the Supreme Court on three charges for Libel; and on the twelfth day of the same month, he was brought up for judgment before the Supreme Court, and sentence by His Honor the Chief Justice, for the first conviction, to be imprisoned in His Majesty’s Gaol, at Hobart Town, for four months, and to pay a fine of sixty pounds; for the second, to be imprisoned as aforesaid for eight months, and to pay a fine of one hundred and twenty pounds; for the third, to be imprisoned for one month, and to pay a fine of twenty pounds, and to be further imprisoned until the said several fines were paid. On the said twelfth day of March last, he was removed from the Supreme Court, in custody of Thomas Capon, Keeper of His Majesty’s Gaol, and where he remained until the fifth day of May last, imprisoned in the Felons’ Gaol at Hobart Town’ said Keeper of the Gaol told Deponent to accompany him out of prison to the Court-house; that Deponent demanded to see the Writ or Warrant for removing him from the prison where he was confined; that the said Thomas Capon informed Deponent that he had no Writ or Warrant, on which Deponent refused to go; that the said Thomas Capon then went out, and soon after returned with one Joseph Musselwhite, and other two officers of the prison, and upon Deponent again refusing to go without seeing some competent authority for his removal, that the said Thomas upon violently assaulted Deponent, seized him by the collar, and dragged him across the floor of the apartment where he was confined, and pushed him down the stairs, at the same time ordering the other officers of the prison to force the Deponent to go out of prison, across Murray-street, into the Court-house, and this Deponent was, by the said Thomas Capon and the other persons aforesaid, forcibly taken out of prison, across Murray-street, and into the Court-house, and there detained for a considerable time, and afterwards forcibly and against his will brought back and imprisoned in the Felons’ Gaol. And this Deponent saith, that on his being brought into the Supreme Court he was informed by His Honor Mr. Justice Montagu, that a Criminal Information had been filed against him, this Deponent, at this suit of one John Montagu, by order of the Court; and that he, Deponent was brought into Court to plead to the said Information, which he refused to do, because that he had received no notice of such Information being filed; and further, that he was ignorant of the contents of the Information, and of the Affidavits on which the Court had granted the Information, whereupon His Honor ordered that the Deponent should have until Thursday following to obtain such copies, and prepare his plea. And this Deponent further saith, that on Thursday, the seventh day of May, Joseph Musselwhite, the Under Gaoler, did again, without any Warrant or Authority, take this Deponent out of prison across Murray-street, into the Court-house, and did then and there keep this Deponent in custody for a considerable time. And this Deponent further saith, that when he was so brought into the Court-house, he was again, by His Honor Mr. Justice Montagu asked if he was ready to plead, when Deponent replied, that he had not been furnished with the copies of the Information and Affidavits, and therefore that he could not plead; and thereupon His Honor the Judge aforesaid did order that the Deponent should have until the following Saturday to obtain such copies, and prepare his plea; and that the said Joseph Musselwhite did afterwards forcibly, and against the will of this Deponent, convey him into the Felons’ Gaol aforesaid, and did there imprison him. And this Deponent further saith, that on Saturday, the ninth day of May instant, the said Joseph Musselwhite did come into the apartment where Deponent was so imprisoned, and did desire this Deponent to go with him out of prison to the Court-house, and that Deponent did then and there demand of the said Joseph Musselwhite to shew him, (the Deponent,) Writ or Authority for removing him from prison, and that the said Joseph Musselwhite said, that he had no Writ or Warrant, but that Deponent had better come. And this Deponent saith, that being in prison and afraid of a repetition of the violence he had formerly experience, he did then and there accompany Joseph Musselwhite out of prison, across Murray-street, and into the Court-house, followed by several officers of the prison, and the said Joseph Musselwhite and other officers aforesaid did then detain Deponent in custody for a considerable time. And this Deponent further saith, that His Honor the Judge aforesaid did again call upon this Deponent to plead to the Information aforesaid, when this Deponent refused to plead, for reasons which he then and there did state to the Court. And this Deponent, in presence of the Court, which was then sitting, did then and there demand to know by what Authority he was thus imprisoned and dragged about, and prayed that the Court would discharge or admit him to bail, whereupon His Honor the Judge aforesaid, said that Deponent was insulting the Court, that he would not hear him, and ordered the Deponent to be taken out of Court. And the aforesaid Thomas Capon, Joseph Musselwhite, and several other persons, did then and there, in the face of the Court, violently assault and seize this Deponent, and drag him out of Court by force, and did forcibly take him to prison, and incarcerate him in the Felons’ Gaol. And this Deponent further saith, that on Monday, the eleventh day of May, and at several times since that day, he did demand from the said Thomas Capon a copy of the Writ, Process, or Warrant of Commitment on which the Deponent hath been and still is held in prison. And this Deponent further saith, that the said Thomas Capon hath not given to this Deponent a copy of any such Writ, Process, or Warrant of Commitment, but hath informed this Deponent that he, the said Thomas Capon, has no Writ, Process, or Warrant authorising him, the said Thomas Capon, to imprison or detain this Deponent. And this Deponent further saith, that he never was in custody on any Warrant arising out of the Information exhibited against him at the suit of the said John Montague, nor for any other charge that he is aware of, excepting what he hath above set forth, notwithstanding which the said Thomas Capon hath refused and still doth refuse to release this Deponent, although frequently required so to do.

(Signed) Gilbert Robertson

Sworn in His Majesty’s Gaol, at Hobart Town, this twenty-sixth day of May, one thousand eight hundred and thirty five

Mr. Gellibrand continued, - Now, your Honors, I am not going to argue that Mr. Robertson was not legally tried and committed by the Court to prison.

Chief Justice. - Not committed, Mr. Gellibrand? Mr. Robertson was sentenced to be imprisoned in the Gaol, and delivered into the custody of the Sheriff, in the usual way.

Mr. Gellibrand. - I say that I am not going to argue that Mr. Robertson was not originally legally confined in the Gaol, but I contend that being forced against his will out of that confinement without any warrant or authority, his re-committal was illegal, and I care not by whom the order was given - I speak with all deference to the Court, but I mean to say, that a Judge would not have power to do so without the proper course established by law. I am aware that in particular cases this rule would not apply, as in the Court of King’ Bench Prison, which is under the immediate control of the King’s Bench; and where the prison is the particular property of the Court; but a Judge of the King’s Bench could not remove a prisoner under sentence from Newgate or from any other prison. The rule was drawn in the case of Mr. Wilks, of the North Briton. I am aware, as in the case of Hobhouse, that a Writ of Habeas does not issue generally, as a matter of right, otherwise any felon might make application for it merely for the chance of escape, but where reasonable cause is shewed it is not refused. I shall shew cause why a Writ of Habeas should be granted. I shall totally discharge all the first part of the Affidavit, and confine myself to the one point. Was the defendant in the custody of the Court when he was removed from the Gaol by order, as I am instructed, of the Court? I submit that a man when in custody under sentence cannot be taken out of custody, unless that the Judge has complete jurisdiction in the matter. If Mr. Montagu’s Attorney had applied to the Court for a warrant, then the defendant would have appeared on the Judge’s calendar, and the Judge would have had power to bring him before the Court, and I submit that the whole difficulty in compelling a plea has arisen solely because a warrant did not issue for Mr. Robertson, in the custody of Mr. Capon, on that particular case. I will put this case - if application were made to a Judge to bring a person over from Gaol, which evidence would there be that the person so named was the same person affected by the application? None, certainly, and I submit, that until the person is brought under the control of a Judge by warrant, the Judge had no more authority to bring up Mr. Robertson than he had to bring up a person walking in Macquarie-street, or elsewhere.

Chief Justice. - Do you contend that a Judge has not power to bring up any person confined in Gaol?

Mr. Gellibrand. - I submit not, until his name appears on the Judges’ calendar.

Chief Justice. - What is the wording of the commission? Is it not to bring up all the prisoners before the Court?

Mr. Gellibrand. - No, the wording is to deliver the prisoners therein; and it continued - "That they cause all the prisoners of the same Gaol, and their attachments." I take that to extend only to persons committed for felonies under examination. There was no attachment against Mr. Robertson in this case, and if he was in custody for delivery, I should not have urged the case. He is not in custody for examination, he is under sentence, and I repeat that it is not competent for either a Judge or Gaoler to move him from that sentence; unless, indeed, he had been in custody at the suit of Mr. Montagu. And with reference to the writ, I take it to be worded not to bring all persons in Gaol before Court, but only persons in Gaol for trial.

Chief Justice. - The writ is in general terms.

Mr. Gellibrand referred to the form of writ. No, the writ states "We command you to deliver." The very matter I urge. I contend that Mr. Robertson could not come within the meaning of this writ. He could not be delivered, being under sentence, and therefore I contend that the Judge had no jurisdiction.

Chief Justice. - Suppose a Grand Jury found a bill against a person in gaol, under a former conviction, do you contend that the Judge, at Assize, could not try the bill.

Mr. Gellibrand. - I submit not.

Mr. Justice Montagu. - It is however the invariable practice in England.

Mr. Gellibrand. - I submit that he could not, and I’ll pout a case in point. Suppose a person committed for a capital offence, was to get a person, a friend, to bring a case of assault against him, would he be brought from a distant gaol to be tried for the minor offence?

Chief Justice. - Not from a distant gaol, because the Judges carry their commissions for gaol delivery to the county.

Mr. Justice Montagu. - It is a common practice for persons confined in another gaol, to be removed by warrant for delivery.

Mr. Gellibrand. - I am aware that every man in custody of the Sheriff for trial, is bound to be delivered, under a heavy fine.

Chief Justice. - I do not think Mr. Montagu ought to have taken any notice of the former cases, or the sentence passed by another Judge. Nor does it appear that the Court knew that his person was under sentence.

Mr. Gellibrand. - I think I may state that Mr. Robertson’s conviction was matter of record; and I dare say, I may add with safety, that the record is not made up to this day, and that he is under conviction simply on a minute in the clerk’s book.

Chief Justice. - He is under sentence of this Court, and his commitment was in the usual way. His name will appear on the calendar.

Mr. Gellibrand. - Then it comes to this. A calendar is given to the Judge, of the prisoners in the gaol. Mr. Robertson does not appear on it for trial, but appears to have been tried, and under sentence of the Court. An application is made to bring him up to plead in another case; and I say, with every respect to the Court, that it would be neglect or something else in the Judge to say I don’t know under what circumstances this man is in gaol.

Chief Justice. - I think a Judge can order any man in gaol before the Court, and ascertain from himself how he is confined. Supposing a man committed for trial not to appear on the calendar, should we not have power to bring him up?

Mr. Gellibrand. - I grant that you would be doing your duty, if he was under the jurisdiction of the Court.

Mr. Justice Montagu. - I consider that if it came to our knowledge that any man was kept in gaol, it would be the Judges duty to go to gaol, personally, and find out where he was.

Mr. Gellibrand. I grant that a Judge is bound to see his Commission delivered; but here is a man not in the delivery.

Chief Justice. – The Sheriff is bound to bring all the prisoners in gaol before the Judge.

Mr. Gellibrand. - I say with every deference, that if the Sheriff did bring any man who was under sentence in the gaol from his confinement under a general writ of gaol delivery, the Court would inflict a heavy fine on him.

Mr. Justice Montagu. No doubt if he did so without a special order of the Court.

Mr. Gellibrand. - If the Judge ordered all the prisoners to be brought up, and the Sheriff brought up those under sentence, as well as those for delivery, I say the Judge would fine him severely.

The Chief Justice. - I think there is no occasion to take up the time of the Court unnecessarily. You admit that this man was originally tried, and sentenced to be imprisoned by the Court. He appears to be in gaol under the sentence of the Court. Is there anything to shew that he is illegally there to warrant the issuing of a Writ of Habeas.

Mr. Gellibrand. - I submit that the moment he was brought out of goal, where he was under sentence of the Court, and taken back without proper authority, he was illegally imprisoned.

Mr. Justice Montagu. - If a person breaks from gaol, cannot the Sheriff retake him?

Mr. Gellibrand - Certainly, but if the Sheriff brings him out of gaol, contrary to his inclination, and even in the face of his protest, and on his sole authority, recommits him, it is illegal.

The Chief Justice. - If the Sheriff had taken him out of the gaol, where he was under sentence, and put him in the mad house, or any other place, contrary to his sentence, upon application made, the Court would interfere. But it would be an extraordinary thing to say that justice should be trifled with, and an offender escape punishment by the error of a Judge or any other person. It appears this man is in gaol under an unexpired sentence, where he ought to be.

Mr. Gellibrand. - If that be the case, the Sheriff, or Mr. Capon, may take him out of gaol at their pleasure, and carry him about the country where they please, to Port Arthur, or any Penal Settlement; harass and annoy him in every way. Upon the authority of the Attorney General, or even the plaintiff’s attorney, he might be removed in a similar manner without redress.

The Chief Justice. - I don’t say that if he has been illegally removed, he may not have his remedy against the Sheriff or some other person; but here we are required to grant a Habeas, without any shewing that he is illegally in gaol.

Mr. Justice Montagu. - The Sheriff is ordered to keep all the King’s prisoners in gaol "until discharged by due course of law."

Mr. Gellibrand - I submit to the Court, that this is a question of great moment, and I think a writ ought to issue to the Sheriff, calling upon him to shew by what authority he removed Mr. Robertson from prison.

The Chief Justice. - We cannot grant an Habeas to bring Mr. Robertson up to prove that the Sheriff has acted illegally. There is nothing to shew the probability of his being illegally imprisoned; and if my opinion was asked, as a Lawyer, I should without hesitation, say that he is legally confined. Have you any thing to offer, Mr. Stephens?

Mr. Attorney General. - I can have nothing to argue in this case which appears to me to be clear. I think, however it is due to state some opinion, particularly because, at one time, I had a doubt on my mind respecting it. I do not think, on my honor, as a gentleman, that the Court has acted illegally. Mr. Robertson was given into the custody of the Sheriff, and whatever gaol he may be in, he is there under the legal sentence of the Court, and must there remain until legally released. As to a remark that fell from Mr. Gellibrand, as to the special power of the King’s Bench over the King’s Bench Prison; I say that this Court has the same power over any gaol in the Colony. I think the point cannot be disputed. I may state, that Mr. Nicholson, who acted as Under Sheriff, in England, and had considerable practice, has known a Judge to order a prisoner to be brought up, and recommitted him.

The Chief Justice. - I go on more simple grounds. The affidavit exhibited stated, that he was legally committed, and that he is in gaol under sentence of the Court. Nothing is before the Court that shews that he should not be there.

Mr. Justice Montagu. - I don’t see how Mr. Gellibrand can urge this case. It is admitted that he is legally in custody, under the sentence of the Court, and I don’t think that even the wilful misconduct of a Judge or Sheriff should interrupt the course of justice. After what Mr. Gellibrand has said, in reference to the affidavit of this person, I feel it due to myself to state that it is not true. As a private individual, I would do him a service, if possible; but as a Judge, I must say, that I did not act with sufficient vigour in that case. He stood before the Court, and said that the Court had used him badly. Any person present must know that the dignity of the Court must be supported. I warned him repeatedly, and he afterwards persisted in insulting the Court. The man stood at the dock, and said "I really am afraid to speak, for I don’t know whether you won’t fine me." I do not think I acted right in suffering it to pass. I think I ought to have acted reckless of any opinion - reckless even of the PRESS, The Press I never look at, but I am told that it is most outrageous, and I cannot say that it is a good sign of the morality of the community to permit such gross, raucous stuff to enter their doors, and afterwards go to church and say their prayers with any benefit to themselves. I shall not be long in the Colony, but as long as I do remain, I will keep up the dignity of the Court, and punish offenders, like the defendant, who may dare to insult it. I repeat again, that the affidavit, as regards what passed in the Court, is altogether false, and I refuse the motion without giving any reason for doing so.

Mr. Gellibrand. - I beg to state that I had nothing to do with the wording of the affidavit, which was handed to me as it is. I certainly advised the insertion of the first part, stating the conviction before the Court and the sentence.

Mr. Montagu (interrupting.) - I don’t mean to say that you had any participation in this matter; and I understand that there has been a former application to the Court in this matter.

Chief Justice. - The application was to me, and not to the Court; I think refused the application, and stated to a person who waited on me from Mr. Robertson, for an answer, that I thought it was all a trick, meant to impose on me.

Motion refused.

Pedder C.J. and Montagu J., 16 June 1835

Source: Hobart Town Courier, 19 June 1835

In the matter of Mr. Gilbert Robertson – Mr. Gellibrand moved for a habeas corbus[sic] to bring up Mr. Robertson in order that he might be discharged from custody. Mr. G. read the defendant’s affidavit, detailing all the circumstances connected with his being brought up on the different occasions to plead to the information before referred to. The learned counsel contended that Mr. R. was removed without legal authority from the gaol, and that his subsequent imprisonment upon his being removed from Court was therefore illegal.

The Court decided that the Judge who was sitting under a commission of the gaol delivery had power to order up any prisoner ad therefore refused the application.

Mr. Justice Montagu in expressing his concurrence with the decision of the Court uttered some strong sentiments respecting the conduct of the defendant, and a portion of the press of this colony.

His Honor stated that he was the Judge who had ordered Mr. Robertson’s being brought up and that he could bear testimony to his insulting conduct to the Court upon these occasions. He regretted that he had not sufficiently asserted the dignity of the Court by punishing Mr. R. on the spot; but that in future similar behavior on the part of a defendant should not pass unnoticed. Mr. Robertson had made the insulting remark that he was afraid to speak- evidently alluding to his (Mr. Montagu’s) having imposed a fine on a previous occasion upon a defendant for acting contrary to the commands of the Court, and respecting which his Honor had understood the press here had teemed with the most virulent abuse of him. His Honor stated that he should always do, during the short time that he expected to be in the colony, what he conceived to be his duty – fearlessly disregarding anything that the press of this colony might publish concerning him or the opinions of the community. Although he would feel gratified by his conduct meeting with the approbation of the respectable portion of it. He regretted to perceive trash, and disgusting tirades as he understood were daily emanating from the press (his Honor did not speak from his own knowledge, for he was happy to say he never say those papers) were supported by any respectable members of the community. He wondered that men calling themselves Christians could have such productions on their tables for their families to peruse, and afterwards proceed with Pharisaical countenances to their places of worship.

Notes

[1] See also R. v. Robertson (No. 1), 1835; and R. v. Robertson (No. 2), 1835.