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

R. v. Collington [1792] NSWKR 1; [1792] NSWSupC 1

burglary

Court of Criminal Jurisdiction

Collins J.A., 7th February 1792

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

[251] James Collington, labourer was brought before them charged for that he on Thursday the twenty seventh day of January, in the ninety second year of the reign of our Sovereign Lord George the third, now King of Great Britain, Wales and Ireland Defender of the Faith, for between the hours of 10 and 12 on the night of the same day, with force and arms, at Parramatta in the County of Cumberland, the dwelling house of John Campbell, there situate, feloniously and burglariously did break and enter, and 50 pounds of flour, of the value of 25 shillings, of the goods and chattels of the said John Campbell, and one checqued apron, of the value of five shillings of the goods and chattels of one Susanna Bray, in the same dwelling house, then and there, [252] feloniously and burglarously did steal, take and carry away against the peace of our said Lord the King, his Crown and Dignity.

            The prisoner, James Collington, on his arraignment pleaded not guilty.

            John Campbell (labourer) being sworn, deposes that on Thursday night the
26th February he went to bed about 9 o'clock. Before he went to bed he secured his house by bolts on the doors and windows. That he had at that time of bread and flour between six and seven hundred weight in his house that was to bake for the public. The flour was held in the bake house under the same roof with the dwelling house. The bread was kept in the place where he slept. That he heard no noise during the night. On opening the windows in the morning he saw the floor of the house covered with soot. The woman who lived with him getting up, missed her apron. They then began to look about, and on going to the flour casks, he observed that some flour had been taken out of one that was loose, and that the soot had fallen in. He then went in, and on counting the bread he missed a number of loaves. By these circumstances he knew he had been robbed by some means, and on looking round the house, he saw that some one had been getting up the hearth, on which he gave the alarm, and upon a watchman getting up to the chimney, found a stone mason's chisel. That he had seen the prisoner [253] at his house. That any person who goes there may see that there is flour and bread kept in his house. That the chimney by which the thief got in is in the place where he sleeps, but being fatigued with labour in the day, he soon fell asleep when he went to bed. The stone chip mason's chisel had been left by some people at work and picked up by the person who left it on the chimney. He lost about 16 loaves of two pounds weight each, and four or five of less weight, and some flour, in all about 50 pounds.

Susanna Bray being sworn deposes that on last Wednesday or Thursday week in the night she lost an apron, a new coloured apron. When she went to bed, she thinks she hung it on the side of the bread cask. She at times serves out the bread, but amongst the number of people who come and go, cannot pretend today she ever saw the prisoner there. That the house was robbed the night her apron was lost. That on missing her apron she, with Campbell, began to search about, and found soot on the floor. The apron never has been found since. That she is positive the house was well secured when they went to bed.

Joseph Hand being sworn deposed that he lives in the house with Campbell, in the bake house. That on the morning after the robbery was committed he got up at half past 4 o'clock. That he is not certain which door was open in the morning when he got up. That he observed soot on the floor, and the [254] tracks of it to the bake house door. That being in a hurry at work, he did not observe whether the door was open, or which door was open.

Richard Partridge (alias Dick) being sworn deposes that, the prisoner being apprehended for another offence was spoken to by Campbell, who requested him if he knew any thing of his robbery, to mention it. He answered that what he had to say, he should tell to him, this confession. That accordingly he told him that he came to the building intended for a lock up house and took a stone mason's chisel out. That on asking him whether he was not afraid of being disturbed by the noise he would make, he said, he expected to be detected when he got to the bottom. That he said he took an apron and put 15 or 16 loaves in it. That he went to the flour cask and in the leg of a pair of trousers, he put 10 or 12 pounds of flour with which he went out of the door of the bake house.

The annexed confession was produced and being read to the prisoner, was acknowledge to be his free confession.

            The prisoner being put on his defence had nothing to say.

Guilty. Death.

David Collins

                                                                        Judge Advocate

[252a] The free confession of James Collington before me, being of his Majesty's justice for the County of Cumberland.

Says that he robbed a hutt upon the flats of 14 lb of soap and loaf of bread and a lb of flour. The next day he met three men near the same place who taxed him with the theft, took the above things from him under pretence of returning them to the man. They never did return them. He does not know them.

Says he about the same time robbed the next hutt to the above of some pork, and ate it in the woods.

At another time during the time he was out, he robbed another hutt of some slops.

Says also that he robbed Campbell 's hutt. That he went down the chimney, took away 15 or 16 loaves some of one, other of more weight, a little after 12 at night. Hid the above bread with about 14 lbs of flour in the brush. Went from time to time to eat of it, was watched, and after he had turned his back, it was taken away. The apron left behind, does not know who took the bread and nor what became of it.

Says that it was some of the above flour that he had upon him when he was taken some time past and sentenced to be flogged.

                                                                        his

Parramatta, February 26 1792               James X Collington

                                                                        mark

Richard Johnson

Note 

[1] The case raises several issues regarding confessions. After the Precept was issued, Chaplain Richard Johnson, who was visiting Collington on the day before his trial, took a statement from the accused. Collington confessed to the crime for which he stood trial and to several other crimes. This statement was admitted into evidence at the trial. Throughout the process neither the Judge Advocate nor Rev. Johnson appear to have warned Collington about incriminating himself. The case highlights the challenges of applying English law to the new colony. For example, as Nagle suggests, ┬┐many might think the chaplain had exceeded his duty; however he too was bound by his commission "to observe and follow such orders and directions from time to time as you shall receive from your Governor, " or any other your superior officer, according to the rules and discipline of war'". Perhaps the case also highlights the court's general approach of dealing with matters "in a more summary way" in accordance with the Act and Letters Patent establishing the Court of Criminal Jurisdiction. Collington was executed on 8 February 1792: Macnab, Database.

            See Nagle, Collins, 188-190; Collins, Account of the English Colony of N.S.W., 166.

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

Published by the Division of Law, Macquarie University