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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Cole [1788] NSWKR 3; [1788] NSWSupC 3


Court of Criminal Jurisdiction

Collins J.A., 11 February 1788

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 5/1147A [1]

[15] Criminal court, February 1788

William Cole, a convict was brought before the court, standing charged with taking and carrying away from the room of the garrison's guard, two deal planks, value ten pence.

Thomas Goff, Corporal of Marines, being called in and duly sworn, deposes that on Friday last between the hours of 12 and two, he saw the person in the room of the guard, close by the water side, with two planks under his arm. He immediately called to him, and on his coming up, asked him what he was going to do with them. He replied he was going to wash them, intending to take them to his tent, to make a hood-board for it. On being asked what he took them from, he said from the desk in the room of the guard, on which Lieutenant J. Johnston, the officer, came forward and ordered him to put the prisoner in charge of a centinel .

Question. How long were the planks?

Answer. About seven feet in length.

Question. Did the prisoner appear alarmed on being questioned about the planks?

Answer. No, he did not. He seemed to think he might take them.

Question. Was there any centinel near the planks?

Answer. The planks are in charge of the whole garrison.

The prisoner had no questions to ask the witness.

            Lieutenant John Johnston being called and duly sworn deposes that on Friday last, some person of the guard informed him a man was carrying off some planks from the room. On his going [16] up, he saw the prisoner with the planks under his arm, who said he was going to wash them and take them to his tent; on which he confined him, untill the Governor ordered him to be sent to the main guard.

The prisoner had no questions to ask the witness, but being put on his defence he says that on Friday last he said to his shipmates, he would go and find two planks to put at the front and head of their tent to keep the rain out. When he came down to the water side, he took up the two planks and was carrying them away in the face of 20 people, not thinking he was doing harm. Going along some one called to him. He immediately turned around and carried the planks up. On being asked what he was going to do with them, he replied, to wash the bugs off and take them to his tent. He was then confined and has remained in such and tied to a tree ever since. He never meant to commit a robbery, but took the planks away, thinking he might do so.

The court, having considered the evidence and the prisoner's defence, are of opinion that he is guilty of the crime with which he stands charged and to adjudge him to receive 50 lashes on his bare back, with a cat of nine tails, but in consequence of the prisoner's apparent ignorance of committing a crime, recommend his case to the consideration of his Excellency the Governor.

            50 lashes recommended, pardoned.


[1] We would like to thank Clare Jones for transcribing this case record.

After this third trial held on the first sitting day of the criminal court, Cole was pardoned by the Governor. Considering Cole's apparent ignorance of the crime, and lack of guilty mind, it could be argued that he should have not been convicted in the first place. See Nagle, Collins , 90.


Published by the Division of Law, Macquarie University