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

R. v. Dabbs [1805] NSWKR 5; [1805] NSWSupC 5

stealing - burglary

Court of Criminal Jurisdiction

Atkins J.A., 26 November 1805

Source: Sydney Gazette, 30 November 1805 [1]

          James Dabbs, a convict under the sentence of transportation for life, was indicted upon a charge of feloniously and burglariously breaking into the shop contiguous to the dwelling house of Mr Rowland Hassle at Parramatta early in the morning of the 1st of November ultimo. Property to a considerable amount had been taken away, among which was a quantity of copper coin, from ¿12 to ¿20. Upon the testimony of Mr Oakes, it appeared that the prisoner was apprehended the night after the robbery, in consequence of his being found after dark with a bag containing several pounds in copper coin, the bag wet, and acknowledged by the prisoner to have been just taken out of a pond. Mr Oakes having been immediately informed of the circumstance, asked the constables whether they had examined the coin in the prisoner's bag or not, and being answered in the negative, observed to them, that if they were any part of those taken from Mr Hassal's he was sensible from the appearance of the place from whence they were taken, they must be intermixed with mortar. When they were examined they actually proved to be so, as did also another quantity of coin, found in his house which though newly washed, still bore evident signs they had been intermixed with mortar.

           It appeared also in evidence, that the prisoner when apprehended declared himself in the habit of secreting his money in ponds and being required to point out the place from whence he had just taken what he then had, led the Chief Constable to a spot distant and diametrically opposite to his route when taken, and after much hesitation pointed out a small stagnant pool wherein there was scarce sufficient water to have concealed the bag, and this so perfectly lucid and undisturbed as to leave no doubt of the imposture, which repeated prevarication on or to committal was alone sufficient to establish. His defence, laid before the court in writing, in no way tended to defeat the testimony against him, but on the contrary harrowed up to recollection some unfavourable circumstances that probably from motives of humanity had been omitted to be brought in proof. The Judge Advocate having summed up the evidence, the court cleared, and when reopened the prisoner upon the charge of the burglary was acquitted, as the offence was not discovered to after daylight, but found guilty of stealing to the value of 39 shillings, was sentenced, being a prisoner for life, to receive 1000 lashes, work three years in irons.

Note

[1] Historians make much of the personal and professional inadequacies of Richard Atkins during his two terms as Judge Advocate. He is commonly characterised as a man addicted to liquor and, although blessed with some ability, lacking the relevant legal skills and training for the important judicial position he held. Evatt, at p. 190 describes him as "two-faced and drunken". Wood comments at p. 28: "a man who has both a serious drinking problem and the power of life and death over his fellows is almost bound to be a problem". John Bennett described Atkins in an article entitled "Richard Atkins - An Amateur Judge Jeffreys" at p. 261 as "immoral, inhumane and temperamental". He has been characterised as an incompetent in the eyes of many of his contemporaries, and Wood suggests at p. 29, that he was "brutal in circumstances where brutality was part of the daily round".

Despite these criticisms, an examination of the day to day workings of the criminal court suggest that Atkins was generally careful in applying the rules of evidence and court procedure, and that he believed there should be no convictions when there was genuine doubt in a case. In the civil court, he showed similar abilities and concern for justice, even if he occasionally stretched English law.

The sheep stealing case of R. v. Loveday and Smith, 1805 above "reflected the traditionally circumspect view taken by the common law courts about the evidence of accomplices" (see Wood p. 30). On 1 December 1805 the Sydney Gazette commented: "The court having cleared and re-opened, the Judge Advocate informed the prisoners that, as no evidence but that of Munday appeared against them, it was to be cautiously accepted, and as his character was by no means such as to give as to give strength to his assertions, they were discredited; and both prisoners in consequence pronounced - not guilty."

Although the sentence imposed in this case of R. v. Dabbs, 1805 is excessive in contemporary terms, as Woods suggests at p. 31 the "outcome as to criminal liability seems consistent with the law and fair". In this case the prisoner was charged with the more serious offence of burglary, for which he was acquitted as it was not clear that the offence had occurred at night, but was convicted of the lesser charge of stealing.

See also in State Records N.S.W., Court of Criminal Jurisdiction, Minutes of Proceedings, February 1801 to December 1808, 5/1149, p. 245; Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, 5/1145, p. 277; and see G.D. Woods, A History of Criminal Law in New South Wales : The Colonial Period 1788-1900, 28-31; J.M. Bennett, "Richard Atkins - An Amateur Judge Jeffreys?" (1966) 52 Journal of the Royal Australian Historical Society 261 ; J.M. Bennett, "The Status and Authority of the Deputy Judge - Advocates of NSW" (1956-58) 2 Sydney Law Review 501; A.C. Castles, Australian Legal History, chapter 4; H. V. Evatt, Rum Rebellion.

Published by the Division of Law, Macquarie University