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

R. v. Gordon [1789] NSWKR 3; [1789] NSWSupC 3

theft - mental capacity to stand trial

Court of Criminal Jurisdiction
Collins J.A., 19-20 August 1789
Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb. 1788 to Oct. 1794, State Records N.S.W., 5/1147A[1]

[137] - The Precept being read and the court duly sworn, Daniel Gordon, of Sydney Cove, in the County of Cumberland, labourer, was brought before it and indicted, for that he on Friday, the fourteenth day of August, in the twenty ninth year of the reign of our Sovereign Lord George the Third, now King of Great Britain, France and Ireland, Defender of the Faith etc. with force and arms, in the place aforesaid, in the county aforesaid, nine pounds of flour, of the value of one shilling and six pence, one cheque bag, of the value of one penny, nine pints of pease, of the value of nine pence, one canvas bag, of the value of one penny, four cheque shirts, of the value of fifteen shillings and four pence, one piece of pork, of the value of four pence, one knife of the value of two pence, one pair of shoes of the value of three shillings, five worsted caps, of the value of four shillings and two pence, four pieces of canvas, of the value of the value of two shillings and six pence, one jacket of the value of three shillings, and one canvas bag of the value of six pence, of the goods and chattels of John Romain, John Fenlowe, Thomas Martin, William [138] Fisher, and William Field, then and there being found, feloniously did steal, take and carry away against the peace of our said Lord the King, his Crown and Dignity.

            The prisoner on his arraignment, appearing delirious, John White esq. the Principal Surgeon, being called, deposes that the prisoner has an irregular pulse, and a quickness not common to people in health. He has a warmth in his face when the hand is applied, at the same time a cold sweat, and seems to have the appearance of being delirious, and has a pulse very much like delirium or intoxication.

The court then adjourned until tomorrow morning at 10 o' clock.

Thursday morning, 10 o'clock

                                                                                    20th August, 1789

            The court met pursuant to the adjournment.

            The prisoner being brought before the court, and having the same appearance and delirium and wildness as he had yesterday.

            Mr Henry Brewer, Acting Provost Martial was sworn, deposes that on Tuesday evening last between the hours of five and six, he had charge of the prisoner, while he was giving information to the Judge Advocate; that while he was with him he appeared to be in his perfect senses; that he saw him twice make his mark to the information he was giving. That he saw him again in half an hour; that he was then in his senses. That about 8 o'clock yesterday morning he again saw him; that he did not speak to him then, or notice anything extraordinary in his appearance, until [139] two hours afterwards, when he was ordered to bring him up for trial. That in telling him to get up, and come before the court, he appeared not to understand him; that he spoke twice to him; when he said something about a coat, and on him telling him so again he answered in the same incoherent manner. He then told him that the Judge Advocate wanted to speak with him, and asked him to accompany him to him, which he did. As he came along, the prisoner muttered to himself in an incoherent wild manner. That yesterday on his being taken from the court, he visited him several times and presumed him sane the free [moment] in the course of the day. That from that time to this he could discover no other appearance in him, but that of a person delirious.

            Richard Clinch, Serjeant of Marines, being sworn deposes that he was Serjeant of the Guard at which the prisoner is confined, on Tuesday the 18th day of August. That he saw him when he was brought back to the guard by the Provost Martial about half past 5 o'clock that evening. That he then appeared in his senses; that he was lodged for the night in the cage. That he does not think any person saw him during that time, except the centinel who was to look that he was safe in the cage. That he saw him again about 6 o'clock yesterday morning; that he asked him, why he did not come to the fire. He answered, that he was very ill, and had almost lost his eyesight. That he did not say any thing more to him, nor did the prisoner come to the fire.

            John White esq., Principal Surgeon, being sworn deposes that on visiting the prisoner this morning, he appeared inconsistent in his actions and his [140] answers; that he talked to him some time, and desiring him to put out his tongue, he opened his mouth, and he perceived the action of the tongue, as if intended to be put out, but he suddenly checked it and lolled it about in his mouth. That there is an appearance on his tongue, which is not common to health; a whiteness on it, though it was moist. That he thinks his pulse is stronger than if he was in health; that he perceived an irregularity in this on his starting. The appearance on his tongue and irregularity of his pulse might be occasioned, by restlessness in him, but they are nothing like what would be occasioned by delirium. His pulse is now quicker than they would be in a state of health. That he observes a contraction in his tongue, which he does not remember to have read or seen attendant upon insanity. That he has more the appearance of idiotism than madness.

            The court are of opinion, that the prisoner is not in a state of mind to be put on his trial. He was sent to the hospital.

David Collins

                                                                                                Judge Advocate


[1] This is Australia 's earliest record of mental incapacity to stand trial. It is also one of the earliest examples of the admission of expert evidence. In this case the expert evidence admitted was that of Principal Surgeon White. Nagle (at p. 151) suggests that White's evidence was "puzzling to the point of ambivalence". In light of the ambiguity of the expert evidence the court arguably acted with humane caution by postponing the trial. Collins wrote in his Account : "but disordered as he [Gordon] appeared before the court, their humanity would not suffer them to proceed against a wretch who either had not, or affected not to have, a sufficient sense of his situation".

            See Collins, Account, vol. 1, 65; Nagle, Collins, 148-151.


Published by the Division of Law, Macquarie University