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The Australian

Tuesday, 31 October 1837


Saturday - (Before the three Judges)
      Exparte Adams. - Mr. Foster shewed cause against the rule nisi obtained against Mr Joseph Catterall at the instance of the complainant, for leave to file a criminal information against him, for writing divers letters and placards of and concerning the complainant, tending to incite him to commit a breach of  the peace. The circumstances disclosed in the affidavits, which were submittted to the court upon the application being made, were briefly these: -

      In the month of June last, the applicant, who is a Captain in H.M. 28th Regiment, was Aid-de-Camp to His Excellency the Lieutenant General Commanding, in which capacity he continued to act, until 31 August, when he joined the head-quarters of his regiment, stationed at Parramatta. Some time in the month of June, Mr. Catterall, who it would appear is a gentleman of respectability, and in good circumstances, went to Government House, for the purpose of gaining a personal interview with His Excellency, and entered his name in the book kept by the Aid-de-Camp in waiting, of persons seeking an audience of the Governor, who is not in the habit of seeing any one except on cases of emergency, on those days appointed for the sitting of the legislative council. Mr Catterall was informed by Captain Adams that he could not at that time see His Excellency ; and he repeated his visit on two subsequent days, with no better success. He then addressed a letter to the Governor, which for some not yet explained reason, appeared to have been unanswered for about two months. Subsequent to the retirement of Captain Adams from the appointment of Aid-de-Camp, Mr Cattterall once more sought, and obtained an interview with His Excellency, who expressed his surprise that Mr Catterall should have made three applications for a personal interview with him, without obtaining one. Mr. Catterall having some other circumstances, (as will appear in the sequel) reason to suspect that he had been dealt unfairly with by Captain Adams, addressed a letter to that officer on the 22 September last, acquainting him with the surprise of the Governor at his having made three unsuccessful attempts to obtain an audience, and requesting an explanation of the occurrence. To this letter Captain Adams did not reply ; in consequence of which, Mr Catterall a few days afterwards, addressed him again, enclosing a duplicate of his former letter, and urging an answer. The second communication called forth a note from Captain Adams, desiring Mr Catterall not to trouble him with any more letters, as he did not know such a person. 1  Upon this Mr Catterall addressed his complaint to Lieutenant Colonel French, commanding the 28th regiment, who in a pithy reply informed Mr Catterall, that having called upon Captain Adams for an explanation of his conduct reflected upon, that officer had given a very satisfactory one. Mr Catterall now wrote to Captain Adams that letter which formed one ground for the present application - namely, a request for a hostile meeting. To this communication no answer being returned, Mr. Catterall transmitted a formal complaint against Captain Adams to His Excellency the Governor, but it appeared by a letter from the private secretary, Mr Gisborne, in reply, that Captain Adams had also satisfactorily explained his conduct in that quarter. Mr Catterall then publicaly placarded Captain Adams near the Government guard house at Parramatta, as a ‘‘mean pitiful coward’’ &c, upon which the present application was made to the court 2. In shewing cause, Mr Foster acknowledged that when he heard the Attorney General make the application he was doubtful whether any thing could be said in justification of such conduct as had been attributed to his client ; and he felt at the same time inclined to believe that something in provocation of such a line of conduct must have been kept back. What that something was, would now be disclosed to the court upon affidavits ; and he would ask whether this was a case in which their honors would afford the applicant the extraordinary remedy he sought, or whether they would not rather remit him to the ordinary course in such cases. The latter event, he would achnowledge, would have an awkward appearance, for the court could only remit the complaint to that officer who was now in another capacity bringing it forward. It appeared that Mr Catterall was unfortunate in having an abandoned wife, who had been guilty of a plurality of adulteries, one of which had been committed with an officer of the same corps to which Captain Adams belonged. That officer was about to proceed to some appointment on a detached command, and he had been heard to say that if Mr Catterall's complaint should reach the ears of the Governor, he the said officer would be ruined. 3   This, coupled with some other causes of suspicion which would be afterwards explained, induced Mr Catterall to believe that Captain Adams had contributed towards his attending on three sucessive days for the purpose of having an audience with the Governor, without obtaining one, in order to shield his brother officer, from the consequences of his misconduct. The learned gentleman contended that nothing could be more insulting to the feelings of a gentleman, already stung with a sense of the deepest injury, than the letter which Captain Adams had addressed to Mr. Catterall, after the receipt of his second communication - stating that such a person was unknown to him, when it was upon Mr. Catterall's affidavit, that on the first occasion of his having gone to Government-house, and before he had signed his name in the book, he was addressed by Captain Adams, with ‘‘Well, Mr Catterall, do you want to see the Governor ?’’ It appeared also that in the month of June last, Mr Catterall applied to a professional gentleman named Armistead (whose affidavit was also laid before the Court), to prepare a legal separartion between him and his wife, and to make provision for a child, of which she had told her husband he was not the father. Mrs Catterall afterwards called upon Mr Armistead respecting the terms of the separation deed, when that gentleman remonstrated with her, asking her how she could expect her husband to do any thing for her, while her conduct was so notoriously bad, she having been seen on two or three occassions walking with Captain Adams, and another female named Maria Gordon, into a building called the School of Industry, in which the officer's quarters of the 28th Regiment are situated. Mrs Catterall in the course of the convesation with Mr Armistead, observed ‘‘ I know Catterall has attempted to see the Governor three times’’ - and then added, probably reflecting upon the kind of person it was to whom she was making such an admission, ‘‘but it was not Captain Adams who told me so.’’ These were the circumstances which had caused Mr Catterall to suspect Captain Adams for having lent his aid to prevent his appeals from reaching the proper quarter-yet, notwithstanding, and although they had been strengthened by the surprise expressed by the Governor, he would have been satisfied with the mere denial of Captain Adams, and would have believed him on his word as an officer and gentleman. That denial, however, was not given, but an evasive and insulting answer returned to Mr Catterall, telling him that Captain Adams did not know such a person. He, the learned gentleman, was surprised at the temperate conduct of Mr Catterall, after such an insult, already stung as he must have been by a knowledge of one of the greatest possible injuries having been before inflicted upon him. Under these circumstances, Mr Foster contended that the present was not a case in which the applicant was entitled to the extraordinary remedy prayed for. The Attorney General was about to reply, when the Acting Chief Justice said, that had there been a Grand Jury in the Colony, the Court would have most certainly remitted the complaint to that more proper tribunal ; but as the Judges of that Court, themselves exercised the functions of a Grand Jury in certain cases, they were bound whenever a prima facia case was made out, to send it before a Jury. The Court was therefore of opinion, that the rule for a criminal information must be made absolute. The Attorney General was again about to offer some observations on the merits of the case, in answer to the remarks of Mr Foster, when the Acting Chief Justice enquired whether the learned gentleman had not already obtained all that he wanted. The Attorney General answered in the affirmative, but added that he was anxious to remove elsewhere any unfavourable impressions which the conduct attributed to Captain Adams might have the effect of creating, especially when the remarks which had been made might seem to have the sanction of the Court, for their truth. He would, however, deny the correctness of the imputations cast on his client. The Acting Chief Justice said the Court had expressed no opinion at all upon the merits of the case - they thought that should be left to another occasion ; and Mr Jusice Burton added, that if the Judges had been called upon to express any opinion at all, they could have expressed a very strong one indeed. - Rule made absolute §

1   The reference to ‘such a person’ was to Joseph Catterall.
2   The Sydney Gazette of 24 Oct 1837 reported the placard posted on the fence opposite Government House read:- ‘Captain Adams, 28th Regt., having behaved dishonourably towards me, and meanly shrunk from giving me satisfaction, I proclaim he to be a mean, despicable coward‘.
3   In none of the other newspaper accounts was this officer, alleged to have had a relationship with Mrs Catterall, identified by name other than that he was a Lieutenant in the 28th Regt.

Compiler Comment:  After the subsequent successful criminal prosecution of Joseph Catterell, on 25 Sep 1838 the Sydney Gazette reported that having been convicted (Queen V Catterall) at the last criminal session on the charge of sending a letter with intent to provoke Captain Adams of the 28th Regiment to fight a duel, he was sentencing in the Supreme Court on 22 Sept 1838 to pay a penalty of £50 and required to enter into a personal recognizance of £500 to keep the peace for twelve months. Additional to this penalty during the course of the criminal trial Catterall was fined £50 by Judge Burton for contempt of court. The Gazette reported the appeal against this £50 fine was dismissed.
      It appears the actual 1838 criminal trial was not reported by the newspapers despite on 24 Oct 1837 the Sydney Gazette having avowed that when the - ‘case was disposed of by the proper tribunal we shall feel it an imperative to make some remarks on this extraordinary application’. In other words when the case ceased to be sub judice the newspaper editor intended to let fly verbally in his columns, presumably (in the assessment of this non-lawyer compiler) against the circumstance of a private induvidual (Captain Adams) having been able to engage the services of the Attorney General of the Colony acting in his private capacity as a practising barrister to firstly obtain a finding from the Court that another had breached the criminal code by challenging his client to fight a duel and then upon the court so finding it being incumbent upon the same attorney, this time acting in his offical capacity as Attorney General, to instigate a criminal prosecution against the person so found to have breached the code !
      If there was a victor in the whole proceedings it was surely Mr. Catterall as he achieved his objective of revenge against Capt. Adams by sullying his reputation. One newspaper report stated that upon the imposition of the £50 penalty Mr. Catterall ‘immediately’ made payment! It should be noted in the above proceedings that the Attorney General was not permitted to address allegations in the affidavits that left standing were so injurious to the reputation of his client Frank Adams and the others named in them. The affidavits must also not have been able to be sufficiently addressed by the Attorney General in the criminal prosecution he subsequently instigated as at the time of the sentencing of Joseph Catterall on 22 Sept 1838 it was reported the Attorney again sought to raise the matter of the allegations made in the affidavits and was again rebuffed. In one report of the above case it was made clear that Mr. Justice Burton, who also later presided over the criminal trial, was not impressed that this matter had come before the Court at all stating it should have been settled privately.