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

R. v. Risbey and others [1821] NSWKR 24; [1821] NSWSupC 24

R. v. J. Risbey [1821] NSWKR 24; [1821] NSWSupC 24

R. v. B. Risbey

R. v. Murphy

stealing, sheep, Van Diemen's Land

Court of Criminal Jurisdiction

Wylde J.A., 24 January 1821(Hobart session)

Source: Sydney Gazette, 17 February 1821

            Joseph Risbey, Benjamin Risbey, and Patrick Murphy, were charged capitally of feloniously stealing in the month of May last, upwards of 60 sheep, the property of Mr Daniel Stanfield, sen. a settler at Green Point, and of Eliza Collins.

            By the evidence of the prosecutor, it appeared that on Monday the 4th of May he lost 150 sheep from his flock; and having heard on the 6th of some of them being in the Risbey's flock, he repaired there on the 8th of the same month, just as the sheep were going out to graze in the morning. In the flock he stated himself to have discovered 60 of his sheep, which had been very recently fresh ear-marked, and some with their old marks remaining on. To convince himself, a constable being present, he caught three or four, and examined them, which had the whole of their original ear-marks entirely cut off. Some of those with their marks remaining were belonging to Eliza Collins, whose sheep were in Mr Stranfield's charge. The three prisoners were present during the time of examining them; but as Mr Stanfield had no warrant, nor the stock-keeper of there to identify them also, he thought himself not justified forthwith taking them away. In two days after, having procured a search warrant, with his stock keeper, the same constable and two others, he again returned to the Risbeys, on the Wednesday following, but none of the same sheep, which had been seen there before, were then to be seen there. The prisoners were of course asked what had become of them; upon which they said, that all where there, that were so on the Monday, except four or five, which they might have lost in driving home. They, however, proceeded to examine the premises, and, in a hollow tree near the house, they found the skeletons of six sheep, covered with sheepskins; in other places they discovered another or so; the skeleton of a sheep with some mutton on it, was also found in the pig-stye, and about the premises quantity of bits of ears and heads of sheep.

            Thirty-four out of the 150 which had been lost, were in two days afterwards returned to Mr Stanfield by a person in whose flock they had just strayed into; but none of them resembled the appearance of those seen among the Risbeys.

            His Honor the Judge Advocate observed the Court would perceive that the prisoners were arraigned for a capital felony with stealing a number of sheep belonging to the first witness, Daniel Stanfield. It appeared unfortunately, for the Court, and for Public Justice, that this event, like many others which had been brought before them, had taken place a long time back, which might in a great measure account for the difference which certainly existed between some of the witnesses; but it was for the Court to try the case upon the general evidence, and to dispose of its according to the impressions which due consideration might seem to give. The Crown sought not but for Justice; and would not demand it in vain at their hands. His Honor then went through the whole of the evidence, passing suitable comments; and concluded by observing that if the Court had any doubt on their minds, that doubt would certainly in justice be thrown into the scale of favor to the prisoners.

            The Court now retired, and after an absence of about 30 minutes, returned with their judgement of Guilty against all the prisoners.

            The two Risbey brothers, who were born at Norfolk Island; and Murphy, who is also a mere youth, was stock-keeper to one of the Risbeys, and was only in the Colony a short time.

Published by the Division of Law, Macquarie University