[magistrate, liability of – criminal procedure]

Anonymous

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., February 1839

Source: Hobart Town Courier

            The Attorney General moved for a rule, calling on a gentleman who was Justice of Peace for this island, and who also held the situation of a Police Magistrate, to show cause why a criminal information should not be filed against him for having acted illegally and oppressively in the exercise of the duty of his office.

            Mr. Justice Montagu. - I hope, Mr. Attorney, before you state the facts upon which your application is grounded, you will show us some authority to justify our interferences. Do you make this application on the part of the crown?

            The Attorney-General. - I do - I am aware that it is competent to me to file an information against this gentleman of my own mere motion. I contend, respectfully, that under the Jury Act - as it is called here - it is equally competent to me, without stating that I have declined to file such information, to come into this Court and ask Your Honors to interfere, and upon this my application, if Your Honors should see good to grant the rule, to make it absolute or discharge it, having heard both parties; and conceiving it may be erroneously, entertaining however a very strong impression of the misconduct of the magistrate in this matter, as impression which would have compelled me to put him on his trial for a misdemeanor, I did conceive that it would be for his advantage - it is no flattery to Your Honors to say so - to take the opinion of Your Honors on the subject.

            The Attorney General - Then in the absence of better information, if Your Honor had happened to have read an article of Mr. Brougham’s in the Edinburgh Review, on the liberty of the press and its abuse, Your Honor would have ascertained that that was very familiar to others which is a novelty to Your Honor. It is there shewn, by the most convincing arguments, clothed if I may be allowed without impertinence to say so, in the most eloquent language, that the remedy which in this instance I have resorted to, has peculiar advantage in favor of the persons towards whom it is moved for; and indeed when it is known that it is my undoubted privilege, without any oath of any kind required to come here and inform this Court that the gentleman against whom I move for this rule has committed a misdemeanor, and having done so, bring on the prosecution for trial before a jury, without any other intermediate step. I say, it seems to me an obvious advantage to the gentlemen against whom my motion is directed, that I should have taken this course.

Mr. Justice Montagu - I have not read the matter you refer to, and it may be very eloquent, but it would take a good deal of argument to convince me that this is a proper course for the Attorney-General to take where the prosecution is on the part of the crown.

The Chief Justice. - That is exactly the case. Had this been an application, not on the part of the crown, but on the part of the individual supposed to be aggrieved, the Court no doubt would entertain it; but I shall refer presently to a case in which the Court of King’s Bench expressly refused to grant a rule of this kind to the Attorney-General. 

Mr. Justice Montagu. - I have got the case here and will read it with the permission of the Chief Justice. His Honor then referred to a case in which the Attorney-General of that day stated, as well as we can recollect, that he had made the motion out of respect to the Court; but the Court said, that when the Attorney-General had the power to file an information they would not interfere to grant a rule for a criminal information.