coercive power, justice may, under certain circumstances, be completely foiled. (a)

Recognizances.

The records of recognizances to be returned to the Supreme Criminal Court, Circuit Court, or depositions, &c. Quarter Sessions, should be drawn out, and to be transmitted signed by the Magistrates. (b) And such which trial is to

recognizances, together with the original information (if any), the depositions neatly folded and endorsed with the names of the prosecutor and prisoner, the date, and the nature of the charge against him, as burglary, larceny, &c., the statement of the accused, and the recognizance of bail (if any), which by the Act 11 & 12 Vict., c. 42, are required to be delivered to the officer of the Court in which the trial is to be had, are, in this Colony,(c) to be transmitted by the Justice or Justices, as soon as possible after the conclusion of the case, to the Attorney General, or (in cases where he shall so require to the Solicitor General; or in Port Phillip, to the Crown Prose cutor; and the said Attorney General, Solicitor General, and Crown Prosecutor, are respectively,

(a) Mr. Saunders observes, that the method provided by the Act for the due appearance of prosecutors and witnesses has always been found to be attended with much practical inconvenience, particularly in the cases of minors and married women, who are legally incapable of entering into their own recognizances, and, in the absence of being enabled to procure others to be bound for them, may actually be committed to prison to await the trial of the accused. The idea, too, (he further observes,) of a person being called upon compulsorily to acknowledge being indebted to the Crown when in fact no debt exists, is one of those legal fictions so dishonoring to the administration of Justice in England; and it is much to be regretted that this opportunity had not been seized to have done away with so palpable an absurdity. Nothing would have been easier than to have substituted a subpoena to be served at the time on each of the parties, with a penalty to be recovered summarily on disobedience.-Saunders, p. 39.

(b) Printed forms are usually supplied by Government to the various Benches.

(e) Act of Council, 14 Vict., No. 43,

to the Court in

be had.

Accused entitled

positions.

after such transmission and before the day of trial, subject to the same duties and liabilities in respect of such several documents, upon a Certiorari directed to them respectively; or upon a rule or order directed to them in lieu of that writ, as the Justice or Justices would have had and been subject to, upon a Certiorari to him or them, if such documents had not been transmitted; and the said officers respectively, or the officer in any case prosecuting for them respectively, are to deliver the said documents to the proper officer of the Court in which the trial is to be had, if and when the presiding Judge thereat shall so direct. The statute merely desires them to be delivered before or at the opening of the Court on the first day of the sitting thereof, unless otherwise ordered by the presiding Judge (a); but for the Judges on circuit it is desirable that they be delivered, if possible, on the previous evening, in order that they may be duly arranged by the officer of the Court, and the most important of them submitted to the Judge for his perusal. Similar regulations are also desirable at Quarter Sessions. It is indeed the duty of the Judges and Chairmen of Sessions to make themselves acquainted with the nature of the evidence in the most important cases to be tried; as it is only by means of the depositions taken on the commitment for trial, that the Judges can have any knowledge officially of the several cases to be tried before them.

After the examinations are completed, the acto a copy of de- cused, in this colony, is entitled to have a copy of the depositions, on payment to the Clerk of the Justice or Justices, or Coroner, before transmission of the said documents, or to the Clerk of the Attorney General, Crown Prosecutor, or Crown Solicitor as the case may be, after their transmission, for the said copies, such a rate (not exceeding four-pence per folio) as the Judges of

(a) 11 & 12 Vict., c. 42, s. 29.

the Supreme Court shall, from time to time, fix and determine.(a)

conveying the

The warrant of commitment being made out, Regulation for the accused person is conveyed by the constable prisoner to gad. to the gaol named in the warrant, and delivered to the care of the keeper or governor of the gaol, who gives the constable a receipt for the prisoner (form in Act No. 1, Schedule T. 2. p. 73), setting forth the state and condition in which the prisoner was when he was delivered into his custody. (b.) And when the Magistrate by whom the warrant of commitment is issued, shall ascertain that the prisoner has sufficient money to pay the whole or a part of the expenses of his being conveyed to prison, he may order such money, or a sufficient part of it to be applied for such purpose(c.)

apprehended in

offence commit

ined in former,

be committed.

When a person is brought before a Magistrate If a person be charged with an offence alleged to have been one place for an committed by him in some place out of the juristed in another. diction of such Justice, he should examine wit- he may be exannesses, and receive such evidence of the charge and if evidence as is produced before him. Should the evidence is sufficient may be sufficient in his opinion to substantiate the charge, he should commit the party charged with the offence to gaol or admit him to bail, and bind over the prosecutor (if he has appeared) and the witnesses to appear at the trial and give evidence. If, however, the evidence is not in the opinion of the Justice, sufficient to put the party on his If insufficient trial for the offence, he should bind over the wit- he should be nesses by recognizance to give evidence, and issue Justice of the a warrant under his hand and seal, (form in Act No. 1, Schedule, R. 1, p. 68), ordering the accused party to be taken before some Justice for the place where, or near to where the offence was committed, and at the same time deliver the information and complaint, and the depositions and

(a) Act of Council, 14 Vict., No 43. The rate at present fixed by the Judges of the Supreme Court is fourpence per folio of 72 words.

(b) 11 & 12 Victoria, o. 42, s. 26. (c.) Ibid.

brought before a

latter place.

Persons charged

certain misde

recognizances taken by them, to the constable to be handed over to the Justice before whom he takes the accused person; and in the event of the Justice committing the accused for trial, these depositions and recognizances are transmitted to the Clerk of the Court where the person is to be tried, along with such depositions and recognizances as shall be taken before him.(a)

Justices are empowered under the provisions with felony and of the Act 11 & 12 Vict., c. 42, s. 23, to admit meanors may be to bail, according to their discretion, any person admitted to bail. charged with a felony,(b) or with an assault with intent to commit a felony, or with an attempt to commit a felony, or with obtaining or attempting to obtain property by false pretences, or with a misdemeanor in receiving property stolen or obtained by false pretences, or with perjury or subornation of perjury, or with concealing the birth of a child by secret burying or otherwise, or with wilful or indecent exposure of the person, or with riot, or with assault in pursuance of a conspiracy to raise wages, or assault upon a peace officer in the execution of his duty, or upon any person acting in his aid, or with neglect or breach of duty as a peace officer, or with any misdemeanor, for the prosecution of which the costs may be allowed out of the county rate. In cases also where a person charged with an indictable offence is committed to prison for the same, the Magistrate who signed the warrant for his commitment may, in his discretion, admit such accused person to bail; or if such committing Magistrate is of opinion, that for any of the offences mentioned above, the accused ought to be admitted to bail, he may in snch cases, and in all other cases of misdemeanor, certify on the back of the warrant of commitment (form in Act No. 1, Schedule

Justices may admit to bail after commitment for trial.

(a) 11 & 12 Vict. c. 42, s. 22.

(b) In this Colony, no one can be admitted to bail for treason, except by the Supreme Court, or by a Judge of the Supreme Court in vacation.

S 2, p. 71) his consent for the accused to be admitted to bail, stating the amount of bail to be required. On the production of this certificate, any Justice who may happen to be at the gaol where the accused is in custody, may admit him to bail, or in case the sureties cannot attend at the gaol to join in the recognizance, the certificate of the committing Magistrate may be made out in duplicate (form in Act No. 1, Schedule S 4, p. 71). The recognizance of the sureties, when taken, should be transmitted to the keeper of the prison where the accused is in custody, when the recognizance of the accused may be taken, and he may be discharged from custody.

other misdemeanors.

bail.

Whenever a person is charged with any indictable misdemeanor, other than those mentioned at Justices to admit to bail persons the head of this section, the Magistrate should, charged with after taking the examinations, admit him to bail instead of committing him to prison, and in the event of the accused having been committed, he may be bailed by any Magistrate, who should immediately on the recognizance being entered into, transmit it to the Magistrate who committed the prisoner. The practical mode of taking bail is for the prisoner to procure one or two responsi- Mode of taking ble sureties, who, together with himself, become bound in a recognizance for his appearance at the ensuing Sessions of the Supreme Criminal Court, Circuit Court, or Quarter Sessions, as the case may be. The amount in which the prisoner and his sureties should be respectively bound is left to the discretion of the Magistrates, and should be ascertained with reference to their relative situations in life, or property. Among the lower classes, it is usual to require a prisoner to be bound in fifty pounds, with two sufficient sureties in twenty-five pounds each; and as to persons in more affluent circumstances, the amount may vary from one hundred to one thousand pounds. The usual amount demanded at the Sydney Police Office is, in cases of felony-the principal eighty pounds, and two sureties in forty