[domestic violence – habeas corpus – sureties]

Ex parte M’Carthy

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 30 August 1839

Source: Tasmanian, 13 September 1839 [1]

            Mr. Rowlands moved for a writ of Habeas Corpus to bring up Charles McCarthy, at present confined in Hobart Town Gaol, to be discharged, the warrant upon which he was confined being illegal. He made the application upon the affidavit of McCarthy, which set forth, that, on the 4th of May last, for an assault upon his wife, he was ordered by John Price, Esq., to find sureties to keep the peace towards his wife for twelve months, himself in £200 and two sureties in £100 each. The warrant under which he was kept in custody set forth, that he was committed in default of bail to keep the peace towards his wife and all Her Majesty’s subjects, which was contrary to the sentence and to the records at the Police Office. Notice of the motion had been served upon Mr. Price.

            Chief Justice. - Suppose the case, that the Magistrate had said “towards his wife,” and before he went away, “to all Her Majesty’s subjects,” he was, I conceive, at perfect liberty to do so at that time.

            Judge Montagu. - You should have got further evidence upon the subject; if we are to hear such applications from men in gaol, the Magistrates would have no peace. You ought to have got the affidavit of the clerk who searched the records. The Court invariably will not grant a Habeas Corpus upon the affidavit of a man in gaol. If we were to grant it in one case, we might grant it in every case, and it would be highly dangerous, as these men, no doubt, frequently forget what takes place before the Magistrate.- Application refused.