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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Gillman [1824] NSWKR 4; [1824] NSWSupC 21

Criminal procedure - informations - action against magistrate - search warrant - duelling - Newcastle

Supreme Court of New South Wales
Forbes C.J., 20 October 1824
Source of judgment: Australian, 28 October 1824.

Sources of arguments and other material: Australian, 14, 21 and 28 October 1824; Sydney Gazette, 21 and 28 October, 4 November 1824 [2]


The Chief Justice in proceeding to give judgment in this case, stated, that the rule nisi had been granted on the application of Mr. Jacob, calling upon Captain Gillman to shew cause why a criminal information should not be filed against him for the matters set forth in the affidavits upon which that rule was based. His Honor said that he had not seen the rule until lately, and that from the general terms in which it was framed, he had found considerable difficulty in collecting the precise grounds of the charges against Captain Gillman which were scattered over the affidavits. The rule was in this particcular [sic] most faulty. It ought to have been framed with greater precision: for it was obvious that the intention of it was to put the defendant in possession of the charges. The grounds laid here were very wide - so wide that it mighi [sic] have been difficult for Captain Gillman to know exactly with what imputations he was taxed. His Honor had, however, collected from the arguments of counsel, and the stress of the affidavits two grounds of charge. The one for having, as a magisrrate, [sic] maliciously issued a search warrant without due cause; the other for having sent a letter with intent to provoke a duel. The arguments adduced against the rule by the Attorney-General had commenced with the letter; those, on the other hand, which had been urged by the learned counsel in support of the rule, had begun with the warrant. He should follow the order observed by the latter gentleman, as being that in which the events, out of which the application sprung, occurred in their natural priority. On the subject of the search warrant there was considerable difficulty in collecting facts. The clearest light was derived from Mr. Reid's affidavit, who had s[t]ated the circumstances thus:- "Sometime afterwards this deponent saw a prisoner of the crown [3] cutting down some old straggling paling which had been abandoned to this deponent, and deponent inquired of him why he did so, when the man replied, he did so by order of the Superintendent, to which deponent observed that the Superintendent had no authority over deponent's paling, and desired the man to lay them down, which he did, and deponent then caused his men to bring them into the said Vickers Jacob's verandah for safety, which was accordingly done. That after the said paling had been so removed, a constable brought a warrant to search the said Vickers Jacob's house, for (as deponent believes) five pieces of paling as "concealed government property," which appeared to deponent so unwarranted, that he sent to request the presence of Dr. Brooks [4] as a respectable witness to the same, on whose arrival deponent desired the constable to read the warrant, which he did, and after so doing he desired the constable, he (the constable) had with him, to take away the paling. That at the time of this transaction, Captain Gillman, who was walking in the verandah of the officers' quarters, being the next building to the said Vickers Jacob's premises, called out to the constable "Execute your warrant: do as I order you: call the military: see that there is nothing else concealed in the house;" upon which the constables went into and searched the house, but did not find anything." It would seem then that this gentleman (Mr. Reid) was present, and that Mr. Jacob was not. Dr. Brooks also was present, having been called as a witness by Mr. Reid, and his account of the proceeding was to this effect, "That Mr. Reid sent for me, and upon our meeting, told me, that he desired that I should witnes, [sic] the reading and execution of a warrant that had been issued by Captain Gillman. The warrant, as read, directed the persons who was charged with its execution, to search for "concealed property." Being asked by Mr. Reid whether I considered certain pieces of paling which were lying under the verandah as "concealed," I answered that I did not think they were concealed. The chief constable directed his constables to take these paling [sic] away, and they were removed accordingly. Captain Gillman called from Lieutenant Owen's verandah, and ordered the chief constable "to see if there was any more concealed property," or words to that effect, upon which the chief constable entered Mr. Jacob's house. Having on a former occasion deposed, before E.C. Close, Esquire, J.P. that I considered that Captain Gillman's conduct in Lieutenant Owen's barrack, arose from irritated feelings, candour requires that I avow on the present occasion, that such was my impression then, and that I still think his manner and his above-mentioned verbal order to the chief constable, while executing the warrant, betrayed much irritation of mind." The affidavits of these two gentlemen contained the only facts that were before the Court on the subject of the search warrant. There could be no doubt that Captain Gillman, as a magistrate, was authorised to issue a search warrant, if he conscientiously thought that the case required it. A search warrant was a most valuable instrument in Society. It should, however, be used with extreme caution and tenderness, and with every consideration for the feelings of individuals. In this case it certainly might and should have been dispensed with, Captain Gillman had clearly no right to give the verbal directions mentioned in the preceding affidavits. His conduct so far was unlawful, but he (the Chief Justice) considered this part of it extrajudicial, and not referrible [sic] to him (Captain Gillman) in his magisterial capacity. For this there could be no doubt that he would be privately responsible. [5] The law had provided for such irregularities as these, another remedy more suited to their nature, to which Mr. Jacob could resort. There had undoubtedly been great indecorum on the part of Captain Gillman, but still he (the Chief Justice) did not, upon the whole, think that upon the first charge, a case had been made out against him sufficient to justify the granting of the information which was prayed for. He should pass on, therefore, to the second charge - that of writing a letter to Mr. Jacob with a view to provoke him to send a challenge, and thereby commit a breach of the peace. Mr. Jacob himself had stated the receipt of this letter, and his impression, that such was its object. The letter itself too was before the Court; and Mr. Jacob's opinion of its tendency was supported by the affidavits of two other gentlemen, who had less feeling on the case, and whose evidence, therefore, was entitled to more weight. One of these gentlemen, of the name of Williamson, who, it seemed was a Captain in the East India Company's military service, state [sic] "that he has seen the letter in question, and that after giving the said letter due consideration, he, deponent, verily believes that the said letter, from its language and tendency, was so sent to the said Vicars Jacob in order to incite him to commit a breach of the peace towards the said Henry Gillman; nor does he (Captain Williamson) think the matter contained in the letter can bear any other interpretation." Mr. Reid had also deposed to the same effect. On the other hand, however, Captain Gillman had sworn that he had no intention to provoke a challenge; and he is strongly corroborated, in this point, by the affidavits of Lieutenant Owen and Messrs. Brooks and Blaxland. - There is also the affidavit of Captain Gillman's clerk, who had sworn that the letter was meant to be official. It was evident, then, that there was a direct opposition in the affidavits before the Court, as to the real design of this letter.- The letter itself was in evidence, and he could not but consider the Court as competent to judge of its object, as the gentlemen whose opinions had been relied on. Coupling the letter with the facts detailed in the affidavits, he had arrived at the conclusion, that it was not intended to provoke a duel.- Had a duel been its object, he could not help thinking that it would have been worded differently.- The words most relied on, to prove its hostile tendency, were these: "It appears evident you are aiming at leading me into a written discussion with some sinister view[.] I must, therefore, beg you will refrain from addressing me by letter. I am always to be seen at Newcastle; and cannot subject myself to the style of language of your written communications." With respect to the signature "Henry Gillman, Buffs," upon which so much stress had been laid, the clerk had sworn that Captain Gillman was frequently in the habit of signing that way through mere inadvertence. The most suspicious words were, "I am always to be seen at Newcastle." These certainly carried with them prima facie, a fighting appearance. The situation, however, of the parties must not be forgotten. It is stated that Captain Gillman was in the habit of seeing Mr. Jacob and other gentlemen personally. This was his ordinary course of business. The interpretation which he put upon this passage was, that Captain Gillman did not wish to be led into a written discussion, but to be seen personally, as was his habit. In Captain Gillman's affidavit the origin of this business was pretty accurately detailed. He should not advert to the causes assigned for Mr. Reid's hostility to Captain Gillman, because Mr. Reid was not before the Court, and any allusion to him, therefore, would be irrelevant. Between Captain Gillman and Mr. Jacob, however, there evidently existed much ill will, as would be seen by reference to the letters between them, which are set forth in the affidavits. ] [sic] Here the Chief Justice read Mr. Jacob's first letter to Captain Gillman; then Captain Gillman's reply, and afterwards Mr. Jacob's rejoinder.] Now it was in answer to this last letter that the letter, which is the subject of prosecution, was written by Captain Gillman. [Here the Chief Justice also read this letter.] He then went on to say, that taking all these letters together, it would be obvious that much ill blood existed between the parties; but still he could not say that the intention of provoking a challenge was so clear as to justify him in granting an information. He did not think, more especially when he considered the purport of Lieutenant Owen's affidavit, that such was Captain Gillman's design. There could be no doubt that sending a letter, with this tendency, would be a misdemeanor punishable in this way. The Chief Justice, in confirmation of this opinion, referred to the case of the King v. Phillips, from which he read a long extract. That case, he said, was different from this. There one party had called the other a blackguard; and it did not moreover appear that there was any connexion between them, as in this instance, where the parties were in the habit of official communication. There was obviously a great difference between the letter which formed the subject of prosecution in that case, and the one now before the Court. In its consequences it might doubtless have led to a breach of the peace, but it could not be fairly charged with such an intention. It certainly was not a polite or good humoured letter, but he could not say that its object was that which was imputed. He should here then dispose of the rule; but he could not close this case without some observations on the conduct of all parties at Newcastle. It should be recollected that the Settlement in that neighbourhood was of very recent origin; containing a large proportion of persons who were not respectable. The authorities, therefore, were compelled probably to act more rigidly than here. In such a state of society it was peculiarly incumbent on the more respectable inhabitants to uphold the constituted authorities, if it were only from motives of private interest. He could not but think that there was in the tone of Mr. Jacob's letter a great want of due deference to Captain Gillman, referring to the situation which he held. [6] In Mr. Shand's letter there was undoubtedly a great deal of improper imputation, and Mr. Shand's subsequent conduct afforded proof that he himself was of this opinion. Again - Mr. Jacob's letters were certainly injudicious. The allusion to Captain Gillman's not being at his office in proper time, was not a fit one. The expression, that "these delays fall heavy upon us men of business," might as well have been suppressed, for there was another mode of redress if necessary. The other letter was also offensive. Certain expressions in it might have been judiciously spared. On the other hand too, Captain Gillman's conduct had been improper. Supposing the warrant itself to have been legal, he ought still to have recollected that the only legitimate end of power was the protection of the subject. He considered the old maxim, suaviter in modo, fortiter in re, [7] particularly applicable here. He was of opinion, that Captain Gillman had erred in issuing the search warrant at all; that he had, in so doing, acted in a way that was not becoming him, considering the rank of the parties against whom it was levelled, and the nature of the charge upon which it was grounded. He ought to have had the courtesy to send them a letter, in the first instance, requesting explanation. Again, he should not have taken notice of any expressions in Mr. Jacob's letter, which did not refer to business. He thought the tone and manner of Captain Gillman's reply objectionable; and that, as a magistrate, he ought not to have written such a letter. Mr. Shand's affair, too, was most unbecoming. He was aware that among military men it was considered that the point of honor could not be compromised; but, still he had no right to send a challenge, as a magistrate. [8] If he could not do without fighting, he should first have divested himself of his magisterial capacity: for, it could not be endured that gentlemen, the primary duty of whose office was the conservation of public peace, should thus be foremost in violating it. These remarks, he hoped, would go abroad, and that the publicity given to this case, with the full discussion it had undergone, would tend to shew the settlers at Newcastle, as well as the colonists generally, that this Court was open to redress every well founded grievance. He hoped, too, that it would convince Captain Gillman, and other magistrates of the colony, that the application of power require [sic] gentleness, and that a deviation from the strict line of propriety would not be allowed. The Chief Justice having thus dismissed the rule, a discussion arose on the question of costs. The Attorney General contended that, if Captain Gillman was not entitled to his costs, in conformity with the general practice upon the dismissal of a rule, when obtained against a magistrate - each party, at least, should be compelled to pay his own. Mr. Wentworth and Mr. Rowe maintained, on the other hand, that considering the admitted irregularities (to give them the mildest name) which had been brought home to Captain Gillman, it was but just that the costs of the rule should fall exclusively upon him. Mr. Wentworth, in support of this view of the question, cited the case of a magistrate, where, notwithstanding the rule obtained against him had been, as in this instance, dismissed, he was, from a similar reason, saddled with the entire costs of the proceeding. The Chief Justice then enquired whether Mr. Jacob was willing to forego his civil remedy against Captain Gillman, and upon a reply being returned by Mr. Wentworth in the affirmative, after a short consultation with Mr. Jacob - Captain Gillman was ordered to pay the costs incurred on both sides. [9]



[1] This is the first important civil liberties action heard by Forbes C.J. It was also the first important case argued by the newly admitted barrister, W.C. Wentworth (Australian, 14 October 1824, p. 3, col. 2). Fittingly, it was also the first of many cases in which Wentworth, and later Dr Wardell, acted for parties who were opposed to what the two barristers saw as oppressive action by the government and the magistrates. In presenting his case, Wentworth said "that an act of the grossest and most unjustifiable oppression has been brought home to Captain Gillman in his capacity of magistrate": Australian, 14 October 1824, p. 3, col 3. The case was initiated by Mr Vickers (or Vicars) Jacob (for whom Wentworth acted), a free settler in the Newcastle district who had 20 convict servants. It began when Jacob complained to the Commandant at Newcastle, Captain Gillman, about the poor attitudes of Jacob's convicts. (See Jacob's letter, Sydney Gazette, 28 October 1824, p. 4.) The initiating factor was a trivial dispute over the ownership of a small number of used wooden palings. This led to Jacob's attempt to prosecute Gillman for misuse of a search warrant, and for attempting to initiate a duel. Behind this, was a conflict over the rights of free settlers in an area which had been a convict settlement, run by the military. Established in 1804, Newcastle (also known as Coal River) was at first a penal settlement, primarily a place of secondary punishment for those who committed further crimes in New South Wales after being transported from Britain or Ireland. (See J.W. Turner (ed.), Newcastle as a Convict Settlement: the Evidence before J.T. Bigge in 1819-1821, Council of the City of Newcastle, Newcastle, 1973.) Now that it was opening up to free settlement, there were delicate questions to answer about the way in which the military commander there would exercise his powers as a civilian magistrate. (The Gazette called the case Rex v. Gillman in its formal report of the case, and the Australian called it King v. Gillman.)

[2] The Australian's reports of this case are much longer than those of the Gazette. The Australian (14 October 1824) included lengthy summaries of the cases put by the parties (Attorney General Saxe Bannister for Captain Gillman and W.C. Wentworth for Jacob). The Gazette gave two versions of the judgment, the first being a brief note and the second a fuller one following Jacob's criticism of the first report. (See Sydney Gazette, 21 and 28 October 1824).

Neither newspaper was neutral in its reporting of these political and constitutional questions. The Australian opposed government oppression whenever it thought it saw it, and the Sydney Gazette generally supported the government. In an editorial, the Australian noted that this was the first act of "alleged magisterial oppression" to be subject to judicial investigation in the colony: 28 October 1824, p. 2, col. 3. Given the colony's early history, this suggestion cannot be accepted. The Australian was particularly critical of the use of military officers as magistrates once a district came to be populated by free settlers. Its editors looked to the Supreme Court to restrain military excesses.

[3] Convict.

[4] Brooks was a magistrate at Newcastle: Sydney Gazette, 28 October 1824, p. 3, col. 1.

[5] The Sydney Gazette's account of this is: "Certainly, however, he was not within his jurisdiction, when he commanded the constable, by mere word of mouth, to search Mr. Jacob's house, beyond the exigency of the warrant. If Captain Gillman did act thus, he acted not in his official, but in his private character, and became personally liable to the complainant for every injury he had sustained." (Sydney Gazette, 28 October 1824, p. 3, col. 1.)

[6] The Sydney Gazette, 28 October 1824, p. 3, col. 1, gave a different version of the judgment of Forbes C.J. here: "It should be remembered, that Society there [in Newcastle] was formed of disproportionate materials; and it was only the strong arm of the law which held it together. In well respected minds, the necessity of authority was a sufficient inducement to obtain for it every proper degree of deference and support, but the opinions of the vulgar, were grounded by the appearances of respect which were shewn by their superiors; and it did not require argument to prove, that if the style of language, and tone of defiance which had been used towards Captain Gillman were generally adopted, the greatest anarchy would prevail at the settlement, and the law of force take place of the law of reason. On the other hand, it became those in authority to yeld [sic] the first example of submission to the law, and to temper the force which they might be compelled to use with gentleness. The strength of the law lay in its moral influence over the opinions of men, and it could receive no check so destructive to itself, as from a harsh or intemperate exercise."

[7] "Gentle in nature, resolute in deed."

[8] The Sydney Gazette (28 October 1824, p. 3, col. 1) put this as follows: "The affair of honor with Shand, had been, perhaps, gone into a little more at length than was necessary; but, since it was before the Court, the Chief Justice could not refrain from expressing his regret, that the Magistrate should have allowed his temper to be so wrought upon as to give a blow, and his judgment so betrayed, as afterwards to send a challenge - Magistrates should never lose sight of the fact, that they are the Guardians of the Laws; they must not break them; and if an unfortunate conflict of supposed duty should arise, the course is plain, either to resign the Civil Magistrate, or to sacrifice a feeling which the law unscrupulously declares to be a false idea of professional honor."

[9] On 27 October 1824, Forbes C.J. dismissed an application by the Attorney General to admit fresh affidavits with further information: Australian, 28 October 1824; Sydney Gazette, 4 November 1824.


Published by the Division of Law, Macquarie University