[contempt of court, imprisonment – habeas corpus – Port Phillip]

Kerr v. St John

Supreme Court of Van Diemen’s Land

Montagu J., 9 August 1842

Source: Hobart Town Advertiser, 26 August 1842[1]

            His Honor took his seat on the bench at eleven o’clock. Shortly afterwards Major St. John the Police Magistrate entered the court, when His Honor said that he had sent for him to know if he would attend the court, as he understood counsel were about to move for a habeas corpus to bring up the body of Mr. William Kerr, who had been committed by him for an alledged contempt of Court. The act, however, required a certain notice to be given, and he wished to know if he waived his right to have that notice.

            Major St. John. - If you wish me to attend I will do so, but I should rather not as I have public business to transact elsewhere.

            His Honor. - I have no wish about it, all I want to know is whether you dispense with the notice.

            Mr. Croke. - I appear on behalf of the Police Magistrate.

            The hon. Mr. Murray then rose and said - I have an application to make to your Honor to issue a writ of Habeas corpus, grounded on the affidavit of Mr. William Kerr, the Editor of the Port Phillip Patriot newspaper. (Mr. Murray here read the affidavit, and handed in a certified copy of the warrant of commitment.)

            Mr. Croke - The committing magistrate, Major St. John, has issued that warrant in the discharge of his official duties.

            His Honor - Have you an affidavit stating the fact - not anything without affidavit - affidavit against affidavit when the liberty of the subject is concerned. I shall not hear anything without them.

            Mr. Croke said. - The affidavit read by his learned friend was not sufficient to liberate Mr. Kerr, unless it could be shown that the warrant was not tenable in point of law, in that case only could Mr. Kerr be considered as free from the charge brought against him.

            His Honor. The warrant of commitment must express the cause of committal. I must look into this case, and I must know what the crime is that caused this proceeding. I must say in all candour that I had an intimation yesterday that something of this kind was going on, but being unwell, I was unable to come to town, and I regret extremely that this application should have been deferred. If there be any defect in the want of time to give notice, I am to blame. This is a most serious matter. The circumstances attending this case ought to be looked into closely, for I cannot allow any of her Majesty’s subjects to be detained in gaol without a sufficient or colorable pretext for being so. Let me see the summons.

            Mr. Croke. - It sets forth that Mr. Kerr was summoned under the Police Act. (The summons was here handed to His Honor.)

            His Honor. - “New South Wales, to wit,” - we are in New South Wales, but this is the district of Port Phillip, the Police Magistrate is exercising his duties at Melbourne, - “To the Chief Constable Brodie: You are hereby required to summon William Kerr before me to answer some question.” I never knew a summons like this in my life. “Some questions,” respecting what? “for the information of the Police Magistrate.”

            Mr. Croke. - Your Honor, it was discretionary with Mr. Kerr whether he attended or not - he attended in obedience to that order.

            His Honor. - Mr. Croke, is or is it not a legal summons. I ask you as Crown Prosecutor, as Grand Juror, whether you ever heard of such a summons, or whether it should have been issued against any one. Were it your case would you have allowed it to go without remark, if you had any control in the matter. I consider the summons so entirely irregular, and so contrary to all British law, so different to that I have ever heard of.

            Mr. Croke here interrupted His Honor, and said that Mr. Kerr distinctly stated in his affidavit that he appeared in consequence of that summons.

            His Honor continued. Without stating any district, he was summoned, which is very irregular. I will read it again. Why the Spanish Inquisition could not have issued a more arbitrary mandate than that. I again call upon you Mr. Croke to state your opinion whether you think the summons legal, and whether a man ought to be taken from his home and his family on such a document. You are the Crown Prosecutor, and I call upon you to express your sentiments on the subject, for the future guidance and information of Magistrates.

            Mr. Croke. - I consider the heading of the summons is wrong.

            His Honor. - Do you consider the body of the summons is right? It is not a slight discrepancy, when I see a summons of this kind issued, I am bound to take notice of it, and object to such an unprecedented proceeding.

            Mr. Murray. - I think, your Honor, sufficient is obtained from my learned friend’s own admission to enable your Honor to grant the application. I hope there will be no further delay.

            His Honor. - I should like to know what is the offence? It is a principle of the law of England, that no man shall be committed unless there is reasonable and fair ground, or suspicion of guilt. I do not think any magistrate would commit without probable cause, whether that cause be good or bad. If there be probable cause, he has a right to issue a summons. I should like to see the ground for issuing that summons. I again call upon you to express your opinion upon that summons.

            Mr. Croke admitted that the summons was too general.

            His Honor. - Is that all you have to say? You have a high office to conduct, and I had hoped that your answer would have been instructive to the magistracy. You are to conduct these proceedings in such a manner that the magistrates may see what will subject them to unpleasant consequences, if they fail to comply with the law. It will always be the duty of a judge to point this out to them; but I will not allow any one to be guilty of arbitrary proceedings without expressing my opinion. No man can be brought before a Police Magistrate without having committed some offence, or acted contrary to law. Let me look at the warrant. Even this Mr. Croke is very irregular. I should not be so strict if I saw probable cause of committal; but I have seen neither in the summons nor in the warrant sufficient to justify these proceedings. Here it is - “William Kerry,” he may be esquire, he may be merchant or laborer, he is not described as such in the warrant. In the Insolvent Court the other day, some proceedings were set aside on account of such omissions. The Police Magistrate’s name should be set out at length. I am finding no fault with the party who made these omissions, but that they may be advised in future. “Scandalous misrepresentation, Mr. Kerr being Editor of said newspaper.” I suppose you will produce the paper, prove the publication, and all the rest. Was a paper bought and paid for at the office of publication?

            Mr. Croke. - He waived all these objections by appearing.

            His Honor. - Well I hope you have got all these particulars? Where is the examination of the party upon oath? Had he an opportunity of cross-examination? He could have been brought before the Police Magistrate and held to bail if it were a libel. Every one acquainted with Junius must know that. The publisher of the North Briton was imprisoned for not giving bail. “Against the Act of council in that case made and provided,” will you let me look at the Act of Council Mr. Croke; I am not, perhaps, so well acquainted with it as I should.

            Mr. Croke. - I must acknowledge I am not well acquainted with it.

            His Honor. - I am very glad you are as ignorant of it as I am “For the space of twenty-four hours.” What, without beginning or ending? At what hour was Mr. Kerr committed?

            Mr. Murray - About 20 minutes past 12 yesterday.

            Major St. John here said he wished to explain -

            His Honor. - You will have an opportunity immediately. Then to imprison him to hard labor (hard labor!!!) for the space of 24 hours unless said fine shall be sooner paid.” What fine?

            Major St. John said in explanation, that those words were erased in the first warrant which was torn up, but were not erased in the second warrant by an oversight, he was quite surprised on reading the Herald of Tuesday morning to find the words were not omitted.

            His Honor. - The party is detained on this warrant; I have no doubt it did not express your real intention; I do not suppose that yourself and brother magistrates draw out such documents with the accuracy of legal gentlemen. The magistrates ought to have a professional man as clerk to the bench, and I shall recommend in the proper quarter that such a person ought to be appointed.

            Major St. John. - The salary is too small.

            His Honor. - You can always get the services of a respectable man at a respectable salary. [His Honor then proceeded.] I must have the party brought up and discharged on account of the gross irregularity and defects appearing on the face of the warrant. In the whole course of my existence, I never saw such a commitment. I do not, however, as I said before, think that any magistrate would wilfully act illegally. I give every credit to Major St. John for acting honestly, and to the best of his legal ability. Without entering into the enquiry whether there existed any grounds for the committal, and I must discharge Mr. Kerr on the ground of the illegality of the warrant, for I cannot allow any person for to be illegally detained in goal even for a single hour.

            The writ of habeas corpus directing the Sheriff to bring up the body of Mr. Kerr was then issued, and on his appearance in court, he was informed by the Judge that he must be discharged from custody on the ground of the informality and consequent illegality of the warrant of committal.

            His Honor. - Mr. Croke, as Mr. Kerr is only discharged because of the informality of the warrant, I shall hold him to bail if there is any charge against him out of which the committal arose.

            Mr. Croke. - Your Honor, I will take Mr. Kerr’s word for his appearance when called upon.

            His Honor. - Very well; but you remember, Mr. Croke, you are holding Mr. Kerr to bail after having illegally imprisoned him.

            Mr. Croke. - I must have time to consider the matter; Mr. Kerr had better be discharged now, and if I think it necessary I shall proceed in another court.

            His Honor. - I have not seen the article which is said to have given rise to these proceedings; but I should like to know whether it was sufficient to justify these acts of the magistrates. If you intend to proceed criminally, Mr. Croke, the sooner you do so the better, for it is always desirable that the ferment occasioned by such proceedings should be allayed. Perhaps, Mr. Croke, if you were to state what your complaint is, Mr. Kerr may have some statement to make which would be satisfactory to the Police Magistrate.

            Mr. Croke. - Your Honor, the cause of the proceedings against Mr. Kerr was the publication of an article in the Patriot of Monday, headed “the Police Act,” in which reference is made to a scabby sheep case between two settlers, and sentiments are attributed to Major St. John which he utterly repudiates, and also the application of the term “most infamous” to the verdict of a bench of magistrates of which Major St. John was Chairman.

            Mr. Kerr. - May it please your honor, the learned Crown Prosecutor is charging me with offences to which the Police Magistrate made no reference whatever when I was before him.

            His Honor. - The charge against you seems to have been de omnibus rebus et quibusdum aliis. I cannot allow you to proceed; Mr. Croke. I was wrong in permitting you to enter upon this statement. I do not know what defence Mr Kerr may have to set up, for anything I know he may choose to place a plea of justification upon the record; but as he cannot enter into his defence now, it is obviously unfair for to allow him to be stigmatized in this manner.

            Mr. Croke. - I shall consider whether I shall take any farther steps in the matter, but I am under the necessity of considering whether the moral effect of such proceedings is beneficial. When I see so much excitement caused as the crowded state of this court shews -

            His Honor. - Mr. Croke, there needs no oration upon the point. Whether you will proceed or not it is for you to decide in your own breast, and I am sure you will act conscientiously, and I have no doubt rightly. Mr. Kerr, you are discharged.

            Mr. Kerr bowed, and left the court.

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