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

R. v. Till and Bottom [1793] NSWKR 1; [1793] NSWSupC 1

highway robbery - criminal procedure, error in drafting charge

Court of Criminal Jurisdiction

Collins J.A., 18th March 1793

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 5/1147A - 321.[1]

[321] Thomas Till and William Bottom were charged for that they on Monday the eleventh day of March, in the year of our Lord one thousand seven hundred and ninety, there with force and arms, at Sydney, in the County of Cumberland, in the King's highway there in and upon one Mahomet Alley, and one Hormajee, in the peace of God, and our Lord the King, there and then being, feloniously did make an assault, and then the said Mahomet Alley, and Hormajee in bodily fear and danger of their lives, in the highway aforesaid then and there feloniously did put one piece of blue checquered dungaree, of the value of two shillings, of the goods and chattels of them the said Mahomet Alley and Hormajee, from the person and against the will of them the said Mahomet Alley and Hormajee in the highway aforesaid, then and there feloniously and violently did steal, take and carry away, against the peace of our said Lord the King, his Crown and Dignity.

The prisoners on their arraignment having pleaded not guilty.

M. John Stephens, mate of the ship Shah Hormuzear being sworn as an interpreter.

Mahomet Alley, a Lascar seaman, belonging to the ship Shah Hormuzear, being sworn according to the custom of his country, deposed that he had tied up in an handkerchief a piece of cloth gingum, and a piece of long cloth, and carried it on his back. He had also another piece of white cloth in his hand. As he was walking along the street on Monday the 11th of March, he saw some European, about seven past nine or ten [322] at night in the street, and they stopped him and said they wanted to exchange some blankets for his cloth, but knowing that his Captain had forbade blankets being taken, he refused the blankets, but said he would take their money. That one person amongst them who was about him, wanting to exchange their blankets, several times tried to take from him the piece of cloth he had on his shoulder. That another person at the same time stood before him, wanting to buy the cloth he had in his hand. That on missing the cloth, he enquired for the man and was told he ran away. That he saw the man take it. That the prisoner William Bottom was the man who put his hand into his bundle three or four times, and that when the cloth was taken out, he could not see the prisoner. That he does not recollect seeing the prisoner still there, the number of people was so great. That the prisoner Bottom stood aside him, and he three or four times told him not to put his hand into the bundle. That he looked at all the other persons who were present, but could not see his cloth. He then called out but no one came to his assistance, he then began to be alarmed and went on board his ship. That the robbery was committed close to the Lieutenant Governor's house.

[323] Hormajee, A Lascar seaman, being sworn according to the custom of his country, deposed that about a quarter before eight at night on Monday the 11th of March, as he was going on board, he met two Europeans, who called him to them saying, come with me, we will buy your cloth off you. He told them it was too late, he was going on board with his companion (another Lascar) who had a piece of cloth in his bosom. That when the European found they were going on board, one of them walked before them and the other behind. That he who walked before came back and as he passed them, came close to him who had the cloth and snatched it out from his bosom. That when he stole the cloth, they ran after him, but could not catch him, and then they went on board. That when he had got half way on board, some one called after them, and said he had got the cloth and he would give it them. They did not return.

Acquitted, from an error in the charge.

                                    David Collins, Judge Advocate.

Note 

[1] In this case both prisoners were acquitted because there was an error in framing the original charge. The decision indicates Judge Advocate Collins' fairness in allowing a technicality in the law to prevail through a mistake that he had made in drafting the charge. However, as Nagle comments at p. 205, "it also indicates a measure of incompetence on his part".

            See Nagle, Collins, 203-205; Castles, Australian Legal History, 61; Collins, Account of the English Colony in N.S.W., vol. 1, 232. See also the similar case of R. v. Plowman, 1789.

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

Published by the Division of Law, Macquarie University