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

R. v. Clarke and others [1821] NSWKR 3; [1821] NSWSupC 3

R. v. O'Hara

R. v. Coulton

R. v. Read

Court of Criminal Jurisdiction

Wylde J.A., 26 January 1821(Hobart session)

Source: Sydney Gazette, 17 February 1821

            This day the Court assembled at ten in the forenoon, and proceeded on the trial of four out of the thirteen convicts who took out of the port of the River Derwent, in the night of the 27th of February 1819, the Young Lachlan schooner, which was afterwards burnet to the water-edge upon an island on the coast of Java, and the four now placed at the bar were brought back to this Colony from India in the ship St Michael. In the first instances the whole of these prisoners were seized and imprisoned in Batavia, where several of them died. Five were returned by that vessel; one was admitted an evidence on the part of Crown against the others; and the four left to be tried were, Daniel Clarke, Samuel O'Hara, Patrick Coulton, and Christopher Read, a youth; Malcolm Campbell was the approver.

In this case the prisoners were not, of course, indicted for piracy, as the crime was not committed on the high seas, but on a navigable river within the county. They were, therefore, charged with cutting out, and stealing goods on board, the Young Lachlan schooner, in the Derwent River.

The first witness examined was the mate of the schooner Richard Maynard, whose evidence, with that of the other witnesses, among whom was John Hebden, who was also on board of the vessel at the time when she was taken away, together with the testimony of Malcolm Campbell, the accomplice, disclosed all the facts connected with the case, and clearly proved the guilt of the prisoners, as charged against them in every particular.

The prisoners varied in the matter of defence; some asserted their innocence, by stating that they had escaped from the colony in an open boat, and others on a ship called the Venus.

His Honor the Judge Advocate, upon the evidence being closed, entered into observations upon the case, to which we can only just refer. As the prisoners in this case stood charged on the 24 Geo. II Chap. 45, with cutting out and stealing goods on board the Young Lachlan schooner, the nature of the case would not, of course, come within the meaning of piracy: inasmuch as to constitute piracy, it was necessary that the crime in question should have been committed on the high seas; whereas in fact it was clear that the Young Lachlan was taken out an harbour called Sullivan's Cove.

The Judge Advocate took occasion to remark, that the Court of course would look with great jealousy on the evidence of the accomplice. As far as his evidence was corroborated, it was certainly entitled to do credit; but how much further, was for the Court to determine; but, at the same time, if they did believe his testimony, there can be but one impression on the mind of the Court. If he can be believed, there could be no doubt but that Clarke did navigate the vessel, and acted as the master of her throughout the voyage. If the prisoners got away from the Colony in any other vessel but the Young Lachlan, then, of course, the prisoners would be entitled to a judgement of not guilty; but if, on the contrary, the Court were satisfied that the prisoners did cut out the Young Lachlan for the purpose of effecting their escape, and converted the cargo to their own use, then Public Justice demanded that an example should be made of the prisoners, to deter others from the commission of a crime in which so many lives have been lost, and which led to such mischeivous effects, as to the general security of persons and property. If Court had any doubt, that doubt would of course be given in favour of the prisoners; but it was for the Court to determine, under all the circumstances of the case, the guilt or innocence of the prisoners.

The Court then retired for nearly an hour, and adjudged all the prisoners Guilty.

 

Published by the Division of Law, Macquarie University