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1-228 (Raw)

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Decisions of NSW Supreme Court
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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 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 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. 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