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

R. v. Fennel and others [1820] NSWKR 8; [1820] NSWSupC 8

stealing - receiving stolen bills - married women's legal disabilities, influence of husbands

Court of Criminal Jurisdiction
Wylde J.A., 27 November 1820
Source: Sydney Gazette, 2 December 1820[1]

Commisariat - Laurence Fennel, John Fulton, Jane Sullivan, William Brown, and Margaret Brown, were put to the bar and arraigned on an indictment containing three counts; the first charging the prisoners at the bar with stealing from the Office of the Commissariat, at Windsor, cash notes to the amount of £853, of the goods and chattels of Our Sovereign Lord the King; the others charging them with receiving and having in possession the said stolen bills.

           T. Roberts, Esq, the Officer in charge of the department at Hawkesbury, stated in evidence, that proceeding towards Windsor on public duty on the 25th of July last, he received the serious information of the Treasury having been infracted; and instantly returning, prepared lists of the bills, which were of varied amounts (being from 5s. up to £10), which lists he had dispersed throughout all the settlements, and the circulation of the paper was thereby restrained until the month of October, when a discovery took place of the channel into which they had gone.

           Mr Dunn, chief constable of Sydney, being next called upon, deposed, that having received information that Brown (who is a labouring shoemaker), and his wife, were extravagantly passing bills, he went to his place of residence, and on searching his person found three 5s. bills that were not suspicious: he denied having any more, but on searching his box three 5s. stolen bills were found. These he said he had picked up in the public market; but this account not being satisfactory to an enquiry of such vast importance, he at length said he had got them from the prisoner at the bar, Fulton, who was servant to one Neal, a publican; and shewed a readiness to give every information in his power concerning the robbery: Himself and wife had changed three of the £5 bills with different persons, and received value for them. He acquainted Mr Dunn who they were, and he went immediately and got the bills. Fulton, he said, had the great bulk wrapped in a piece of blanket, and was likely to be then found at home at his master's. Accompanied by Thorn, an active constable of a Town district, the Deponent went to Neale's; where finding Fulton, Thorn demanded the bills that were wrapped in the blanket; and the consternation he was thrown into by the peremptory demand was evidently excessive. With scarcely if any reply, he took from under the boards a wrapper containing 29 notes of £2 each; 66 of £10 each from beneath the bottom sill of the door; and 12 of £5 each from another part of the room, being a back room. The third parcel he protested was the last; and she later expressed a wish that he had not had any thing to do with them: He added, that he had got them from the prisoner at the bar, Fennel, who was but a few days from Windsor, and was then in Sydney, as he believed, at the house of one De Core. This mass of notes was produced in Court, and compared with the list published, with which they corresponded in numbers, sums, and dates: in amount exceeding £700.

           Thorn's evidence was in all its material points a recapitulation of Mr Dunn's.

           John Neale gave evidence that Fulton was his servant when apprehended, and that the prisoner Fennel came to his house on Sunday, the 1st of October with the prisoner, Sullivan, and had much engrossed Fulton's time the whole of that and the day following. Fulton told deponent it was Fennel that had concealed the bills under the floor; and he had observed them converse much together.

           Mr Welsh, a shopkeeper on the Rocks, deposed to having taken one of the £5 stolen notes from Brown's wife, on the 2nd of October; but finding it was once advertised, he gave it back to her that she might trace it; and she, affecting surprise, said her husband had received it from a highly respectable settler and owner of a colonial vessel then and now absent.

           A. Coss, and other publicans on the Rocks, deposed to their receiving part of the stolen bills from Brown and his wife, which were traced home to Fennel in the first instance.

           Mr Edwardson, of the Commissariat, prove the accuracy of the list published, with which the bills recovered had minutely corresponded.

           The three prisoners, Fennel, Fulton, and Sullivan, were proved to be together during the whole of Monday, while the bills were negotiating.

           The evidence for the prosecution closed, and the prisoners entered upon their defence; wherein each endeavoured to make it appear he had received the bills traced to him from some other among them, until the burthen retrograded upon Fennel; who said very little: the woman pleaded her coverture; and all their defences were considerably at variance with their previous assertions.

           The prisoners concluding, His Honor the Judge Advocate entered into an elaborate discussion of the various points upon which the judgement rested.

           The first count of the indictment, he observed, had charged the prisoners severally with stealing notes from the Office of the Commissariat, which were in charge of Mr Deputy Commissary Roberts, to an amount exceeding forty shillings, the same being of the goods and chattels of Our Sovereign Lord the King, which offence was capital; and the two other counts charging the prisoners with receiving and having the said notes in their possession, knowing the same to be stolen. The fact it appeared had been perpetrated in July, whereas the proof had not been taken up till some time after; of which circumstances the Court would judge, and the prisoners derive any benefit that might accrue from such consideration. His Honor then proceeded to recapitulate and remark upon the evidence at considerable length; and inasmuch as affected the prisoners upon the first count, dwelt circumstantially upon those points that had traced the notes charged to have been stolen to the possession of the persons accused; and if the evidence to the possession should be deemed sufficient, it would then be for the Court to determine whether all or any should be considered innocent as regarded the first count; and should the evidence appear sufficient to prove that these notes were in the hands of any of the prisoners at the bar, this charge would be established. The legal proof was not to be thrown away; and it lay upon the prisoners themselves to shew proof to the contrary with an appearance of reason. The Officer in charge of the department, it had appeared, had with every possible promptitude adopted measures to prevent the bills going into circulation: he had immediately caused lists to be framed and published, descriptive of the bills that had been stolen; which doubtless was the cause of their not before being attempted to be negotiated; for it was not to be imagined, that those who had them would so soon after the public notice attempt to put them into circulation. Having minutely observed upon the evidence in the order it had been received, His Honor remarked upon the condition of the prisoners relatively; and concluded by observing, that all lived in Sydney but Fennel: he was the only one who resided at the place where the robbery had been effected; and it did not appear that any of the stolen bills were ever attempted to be put into circulation until the day of his arriving at Sydney from Windsor.

           The defence set up by Mary Brown, of acting under authority of her husband, though generally attended to, yet did not hold good in all cases. Where the allowance could be made without violating the principles of justice, the Court would be ever willing to interpose the aid of clemency, but it must still be kept in mind, that it was not to be considered as a principle applying alike to all cases. His Honor having concluded a highly luminous and impressive charge, submitted the final question to the judgement of the Honorable Court; whose verdict was in a short time returned. Fennel Guilty on the first count; Brown and Fulton Guilty on the second, being a minor charge; Sullivan and Margaret Brown not Guilty.

Note

[1] See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ792, p. 295 (no. 21).

Published by the Division of Law, Macquarie University