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

R. v. Franklin [1821] NSWKR 1; [1821] NSWSupC 1

arrest, resisting, Lord Ellenborough's Act, Van Diemen's Land

Court of Criminal Jurisdiction

Wylde J.A., 19 January 1821(Hobart session)

Source: Sydney Gazette, 17 February 1821 [1]

            William Franklin was capitally indicted under Lord Ellenborough's Act for levelling a pistol at Roger Gavin, with an intent to prevent legal apprehension.

            The prosecutor, a district constable at the Coal River, deposed to his having met the prisoner on or about the 10th of August last on the high road from Kangaroo Point to the Coal River, about 7 miles from the former place; and in the performance of his duty as a constable, he desired of the prisoner, being a stranger, to know his name and to whom he belonged; upon which, he said, he had no master, and would not give any satisfactory answer, or tell his name. As the Constable suspected him to have some stolen property in a bag which he was carrying, he requested to see the contents, but was refused. The Constable having a pistol with him presented it at the prisoner, with a view of compelling him to lay down the bag; which, after some altercation, had its desired effect. On examining it, he found it to contain the iron work of a plough, which he accused him immediately of having stolen; and accordingly ordered the prisoner to walk before him for the purpose of lodging him in custody. He went foremost a short distance, but soon turned short around and seized the constable unawares by the arms. A scuffle ensued, in which the prisoner got the pistol from the constable; and, after retreating about 10 yards, levelled it at him, and then made away.

            The prisoner in his defence denied all knowledge of the matter with which he was charged; but as the case had been too clearly established to admit of a doubt, the Court found him Guilty, and the prisoner was remanded for sentence on a future day.

Note

[1] The New South Wales Court of Criminal Jurisdiction did not sit in Van Diemen's Land until Wylde J.A. was on the island at the end of 1820 and beginning of 1821. Before then, some criminal trials were held locally before magistrates, while other prisoners were sent to Sydney for trial before the Court of Criminal Jurisdiction. Convicts were usually tried before Van Diemen's Land magistrates, even for serious crimes. See R. v. Smith and others, 1817.

These informalities ended with Wylde's arrival in Van Diemen's Land. Twenty eight people were hanged as a result of the 1821 sessions, and more after Wylde's return visit in 1823. The island received its own superior criminal and civil court, the Supreme Court of Van Diemen's Land, in 1824.

See A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, 52-53; A.C. Castles , Lawless Harvests or God Save the Judges: Van Diemen's Land 1803-1855, a Legal History, Australian Scholarly Publishing, 2007, 84-89. On Lord Ellenborough's Act, see R. v. Belcher, 1820.

Published by the Division of Law, Macquarie University