The Argus at KellyGang 21/2/1879 (2)
25th, then till the 1st February, then till the 8th February, then till the 13th February, then till the 18th February, and lastly till the 25th February. On none of these occasions was any evidence produced against him. M'Elroy further stated :-
' I have not directly or indirectly given, or caused to be given to Edward Kelly and his accomplices information tending to facilitate the commission by them of further crime, as is alleged against me, and further that during the last 18 months I have not so much as seen Edward Kelly. As he had already stated the last remand warrant was in form unobjectionable. But the power to justices to remand prisoners was given by section 88 of the Justices of the Peace Statute :- "If from the absence of witnesses or from any other reasonable cause, it become necessary or advisable to defer the examination, or further examination, of the witnesses for any time, the justices before whom the accused appears, or is brought, may, by their warrant, remand the party accused for such time as by them in their discretion shall be deemed reasonable, not exceeding eight clear days. He submitted, therefore, that the prisoner could go behind the warrant, and show that the justices had no jurisdiction to issue it. There must be either an absence of witnesses or some other reasonable cause.
A man could not be remanded from time to time without reasonable cause. What that cause was must be proved by evidence. Here no evidence of any sort or description had been given. The police magistrate had therefore nothing to act upon. The act limited the time of remand to eight days, but this prisoner had been remanded eight different times, and kept in gaol for seven weeks without any evidence whatever being tendered against him. If this could be done, he might be remanded ad infinitum, and kept in gaol for ever. It might be said that an action would lie against the magistrate for so acting. But without entering into that question the fact of such a remedy existing did not deprive a prisoner of his right to release by habeas corpus. The Legislature provided against the abuse of the power of remand by directing that it should be given only in cases where witnesses were absent, or other reasonable cause. But even in those cases there must be some evidence to go on, mere idle chatter was not sufficient the mere application of a police constable should not be sufficient to deprive a man of his liberty. If this conduct were to be permitted the Habeas Corpus Act was virtually repealed. If it were the law there would be no necessity for suspending the Habeas Corpus Act, as had often been done in times of excitement and danger. It clearly could not have been in the contemplation of the Legislature that a man should be remanded indefinitely, and without any evidence being adduced against him, or any reason given for the remand. There was no reason given for this remand, it was mere caprice on the part of the police magistrate.
His HONOUR - Section 88 gives the justices power to remand from time to time in their discretion. How can I interfere with their discretion?
Mr M'FARLAND - The discretion must be exercised on some reasonable grounds. For instance, the justices could remand for eight days, but whether they remanded for eight days or for five days was within their discretion, and the Court would not interfere with that. But whether they ought to remand at all was a point into which the Court would inquire. They must have some evidence before them to give them jurisdiction.
His HONOUR - How can I inquire on the return to this writ whether the justices exercised their discretion reasonably or not?
Mr M'FARLAND - On the afiidavits. Your Honour can see from the affidavits whether there was anything before the justices to justify them in a conclusion one way or the other. It was quite evident on the affidavits of M'Elroy that Mr. Wyatt had really nothing before him.
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