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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Thomas and James [1827]

criminal procedure, want of prosecution - autrefois acquit - judiciary, independence of - stealing

Supreme Court of Van Diemen's Land
Pedder C.J., 11 and 13 August 1827
Source: Hobart Town Gazette, 18 August 1827


James Thomas and Charles James were charged with stealing on the 19th of June a very large quantity of specie, the property of the King. Thomas McGuire, a private of the 40th, and James Davis, were charged with being present and assisting. Matthew Pennel with being an accessary before the fact, and George Relph and John James with receiving the said money, knowing it to have been feloniously stolen. The Solicitor General conducted the prosecution, and Mr. Ross and Mr. Rowlands were counsel for the prisoners. There being no evidence against James Davis, he was acquitted. Jocelyn Thomas, Esq. Mrs. Thomas, Mr. Thomas, junior, John Lakeland, Esq. and Mr. George Smith were severally examined, and at 8 o'clock in the evening, there appearing no possibility of the trial being concluded that night, it was adjourned until 9 o'clock on Monday morning.


This morning his Honour the Chief Justice took his seat on the bench at a few minutes after 9 o'clock. The prisoners in the above case were placed at the bar, and some considerable time afterwards the Solicitor General not having arrived, the jury were in consequence directed to return a verdict of not guilty against the whole, which was recorded by the Clerk of the Court accordingly.

Source: Colonial Times, 17 August 1827

Oh! Such a rumpus in the Supreme Court on Monday. Every body in the town has since been talking about it. There has been as many opinions, not legal opinions, promulgated on the subject, as would be sufficient to furnish subject matter for all the Colonial Newspapers for a twelve-month. - We shall have it all in the Times, says one. There, we shall see it all set to rights. Another cries out, fine work for Gelly, and a third for the Doctor. Long before this, some of our Country Readers will have got a hint of it, and be listening as eagerly for the Postman's horn, as a General for the trumpet of victory. Now for the Paper. Well, well, have patience, and you shall know all. The Chief Justice Pedder, and Mr. Solicitor-General Stephen are at issue. But that's not it. Our Readers will perceive in our memorandum of the proceedings of the Supreme Court, that on Saturday morning; the men for the robbery at the Colonial Treasurer's Office, were brought up for trial, which lasted the whole day, without being concluded. The Court re-opened on Monday; the Chief Justice took his seat; the prisoners were again placed at the Bar; the Jury re-assembled; and every thing was prepared to resume the trial. But no Attorney-General or Solicitor-General made their appearance; and there sat His Honor, with the greatest patience for some time waiting for one of these Officers. A messenger was dispatched, as we are informed, to the Solicitor-General, Mr. Stephen, with an intimation that the Judge was waiting for him in the Court. But Mr. Stephen did not appear. A second and a third-messenger was sent off, but still the Solicitor-General was not forthcoming. Twenty-five minutes (some say nearly 40!) had now elapsed since His Honor had been waiting, with patience greater than that of Job himself. But this was worn out by its continual trial; and, after waiting as before stated, His Honor, with the concurrence of the Jury, discharged the whole of the prisoners. - Such are the plain straight-forward facts of the case; and such is the point at issue between the Chief Justice and the Solicitor-General. The main question is, whether His Honor or Mr. Stephen is in the wrong. One must be; but we shall leave our Readers to decide which. We are not professional; therefore cannot determine. But this, however, we know, that in cases of a private nature, where the prosecutor neglects to attend, after being called upon three several times, the prisoners are discharged, and, should he not appear, the accuser forfeits his recognizances. This has been several times the case in the Supreme Court here. One instance of the kind occurred, no longer ago than last week. Lord Ellenborough always made it a rule to discharge a prisoner, if his prosecutor, whether a King's Officer, or private individual, did not appear within fiveminutes after being called. Now, it runs in our head, that this is precisely a similar case. - Mr. Stephen, as the Solicitor-General, (in the absence of Mr. Hone, the acting Attorney-General), became the public prosecutor; and we consider His Honor the Chief Justice acted upon a similar opinion. - Whether His Honor acted legally or illegally; or whether Mr. Stephen acted properly or improperly, are very nice points, and require great caution in adverting to them. But, we feel ourselves justified in our own mind in stating it as our opinion, that His Honor acted with perfect legality, because we think he could not well act otherwise. At all events he acted mercifully, impartially, and independently. Some persons have advanced an opinion that His Honor ought to have remanded and not discharged the prisoners, as it was a Government prosecution of great importance. Now, we entertain a contrary opinion, and consider that had His Honor remanded the prisoners, he would have been guilty of a gross dereliction from the letter, if not the spirit of the British Law; because the men were partly tried. Some other persons say, that these men are liable to be re-apprehended, for the same offence; but this opinion, like the foregoing, we consider contrary both to Law and Justice. Such then are our reasons for thinking that His Honor acted legally. - With regard to Mr. Stephen, we do not know what might have prevented his attendance - probably illness - probably accident - probably being at breakfast - or probably the Court sitting somewhat earlier than usual. - He might have broken his leg, or his neck, in coming down stairs; or he might have taken too hearty a portion of chocolate and beef-steaks - knowing that that he had an arduous day's business to go through. Therefore, it would be very hard to decidedly say, that the Solicitor-General knowingly behaved improperly to the Chief Justice. But still we consider, that even if an accident had happened to Mr. Stephen, it was the imperative duty of those about that Gentleman, to have communicated the same instantly to the Court. However, at all events, His Honor's first messenger must have brought the intelligence. So, again, we cannot conceive the Judge acted illegally; and we much question even, if any serious accident had occurred, whether the Chief Justice could have done otherwise than he did. The matter has, we understand, been since laid before His Excellency the Lieutenant Governor, for investigation. - Many persons have been summoned to attend at Government House; but we have not been enabled to hear the result. - We cannot however conclude, without paying some compliment to the independence of Judge Pedder. In this case, His Honor has proved, that he considers Government and private prosecutions exactly in the same light. - We rejoice at this; for it is well-known, that the independence of the Judges is the pillar of the State, and safeguard of the People. And, if he is not independent, to whom are the people to look for safety. A Judge is not to be trifled with on the Bench. There, he is supported by British Acts of Parliament. There, he is unrestrained, by any thing but the Law; and there he must, and it is evident he will be respected, and maintain that independence it has pleased Our Gracious Monarch to delegate him to use. To the King alone, therefore, Chief Justice Pedder, and all other Judges in the Empire are responsible for their conduct; and here we leave the matter for the present.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania