The Argus at KellyGang 21/2/1879 (3)
His HONOUR - It is not necessary to state in the warrant the reason for the remand.
Mr M'FARLAND admitted that to be so, but the Court could go behind the warrant and ascertain whether the justices had really any jurisdiction, or had exceeded their jurisdiction.
His HONOUR - It appears to me that the justices have a discretion. How can I say that they exercised it improperly?
Mr M'FARLAND - By referring to the affidavits.
His HONOUR - How can the prisoner swear what reasons the justices had for the remand?
Mr M'FARLAND - He swears there was no reason, because there was no evidence against him, and the question really resolved itself into this 4 - Could a magistrate remand a prisoner from time to time without evidence, and so keep him in gaol for life ?
His HONOUR - I don't see how I can answer that on an application for a writ of habeas. How can I go behind the warrant?
Mr M'FARLAND - In the case of re Wm. Gray, 2 V.L.R. 241, where an insolvent had been committed to gaol for contempt of the Insolvency Court in not delivering up certain property said to belong to the estate, the Supreme Court went behind the warrant, and looked at the affidavits which showed he had no property that he could deliver up. The Court held that there was no evidence to justify the commitment, and discharged the insolvent. In this the Court followed the Queen's Bench in the case of re Bailey, 3 E11 and Bl 418, where the Court allowed evidence to be given to show that the offence for which the prisoner was incarcerated had not been committed. Suppose at a court of gaol delivery the Crown prosecutor desired to have the trial of a prisoner postponed, the Court would require some evidence besides his bare word before allowing a postponement. He had at first thought that there study must be something in the Felons Apprehension Act of last session which would justify the extraordinary proceedings of the police magistrates, but on examination he was very much surprised to find that the only authority was the Justices of the Peace Statute. Apart from the main objection to the warrant, there were some technical ones. The act provided that certain persons might be proclaimed outlaws. Section 5 provided that if, after such proclamation, any person shall voluntarily and knowingly harbour, conceal, or receive, or give any aid, shelter, or sustenance to such outlaw, or provide him with firearms or any other weapon, or with any ammunition or any horse equipment or other assistance, or directly or indirectly give or cause to be given to him or any of his accomplices information tending, or with intent to facilitate the commission by him of further crime, he shall be guilty of felony.
His HONOUR - Does the section mean " horse," equipment, or "horse equipment?
Mr M'FARLAND - I suppose it means horse as well as equipment.
His HONOUR - I hope so, but it is doubtful.
Mr M'FARLAND contended that the war- rant did not disclose any offence, it only stated that Kelly was adjudged and declared to be an outlaw. That was not sufficient. It should state that he had been also "proclaimed" an outlaw. A man might be adjudged an outlaw without the public knowing it. But as everybody was supposed to read that popular paper, the Government Gazette, it was required that the proclamation should be published in the Gazette. It was not stated that Kelly had been so proclaimed. The warrant should also have stated that the information was given by M'Elroy "voluntarily and knowingly."
His HONOUR - No doubt information might be innocently given without a person knowing it was an outlaw to whom it was given.
Mr M'FARLAND - The last objection to the form of the warrant was that it should have stated the information that it was said the prisoner had given to Kelly or his accomplices. However he did not care much for these points as the opinion of the Court was desired on the real question whether the justices could go on remanding prisoners in this way indefinitely.
His HONOUR asked when the writ of habeas was to be made returnable.
Mr M'FARLAND - On Monday. The prisoner is remanded till Tuesday, and he must be brought up before that day.
His HONOUR - I have to be at the Geelong Assize Court to-morrow, and I cannot return till Tuesday. His Honour the Chief Justice will be absent at Sandhurst. I shall make the writ returnable on Thursday, when the case can be heard before the Chief Justice and myself.
Mr M'FARLAND - That will be quite useless, as the prisoner will be in custody then on another warrant. Probably Mr Justice Molesworth would take it.
His HONOUR - I don't know that I can impose that task upon him.
Mr. M'FARLAND - The petition is addressed to all the judges, and I think your Honour has no option in the matter.
His HONOUR - I certainly do not intend to pay a fine of £50.0 Where is the fiat for the writ? The papers were then handed to his Honour, including the petition by the prisoner for the writ of habeas. His Honour noticed that the petition was signed only by the prisoner, and was not attested by two witnesses.
Mr M' FARLAND submitted that that was not required. It was not mentioned in the forms given by Archbold.
His HONOUR said that the act of Charles II required that it should be so attested, and this was held in Huntley v. Luscombe, 2 B.& P., to be a preliminary to the grant of the writ.
Mr M'FARLAND admitted that this was essential. He would renew the application next week. The application for the habeas was therefore refused
end
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