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

R. v. Gwillin [1823] NSWKR 5; [1823] NSWSupC 5

stealing, currency - arrest of judgment - criminal procedure

Court of Criminal Jurisdiction

Wylde J.A., 24 September 1823

Source: Sydney Gazette, 2 October 1823 [1]

            Willian Gwillin was indicted for stealing 200 dollars, the property of Isaac Wise, on the 6th August last. This was a novel case. The prosecutor (Wise) lived in an adjoining house, under the same roof with the prisoner; in fact, the prisoner was the landlord. He had 211 dollars by him, which, for the purpose of greater security, he thought most prudent to commit to the bowels of the earth from which the silver had been originally dug: this transaction took place at the witching hour of midnight; after which he retired with less anxiety to bed. About four in the morning, however, the visit was paid to the valued spot; and all was then safe. The vigils that he underwent during the night, occasioned the prosecutor to sleep soundly till seven in the morning, when the garden, and the grave, and the dollars, all rushed into the mind. With something of that tormenting solicitude which characterizes the miser, was the spot sought after; but, to the astonishment of the then lord of the manor, the ground had been invaded; the grave disturbed; and the dollars, handkerchief and all, were found to be off! The prisoner, at the moment of discovery, was within a yard or two of the spot, and there was the track of the handkerchief, as well as the impress of the weight from the dollars, quite perceptible through the paling, which separated the two gardens: It was only necessary for the thief to put his arm on the other side the fence, and the prize with tolerable ease could be secured. The prisoner was challenged as the depredator; he laughed and the dolorous prosecutor, and walked off. Information was given to Chief Constable Dunn of the affair, who advised the prosecutor to let the matter rest for a few days, and something might turn out favourably. In 14 days after, the prisoner's house was searched, and 199 dollars were found in a wet and gritty state; from which three were taken by Wise and his wife, and positively identified to be part of the absent treasure. Two of the dollars were very remarkable. The prisoner, by trade, was a nailor; and received a character for nine years' industry, sobriety, and honesty; and, though he proved that he was in the custom of receiving sums of money, in dollars, for his industry, as well as informed the Court that he was in possession of cattle, still he failed in proof as to the manner in which he became possessed of the quantity of dollars before the Court; the utmost that he could do was to account for £15 or £20. He was found Guilty. Before the sentence was pronounced, Mr Solicitor Rowe, for the prisoner, moved an arrest of judgement; in which this Gentleman, with his accustomed legal ingenuity, attempted to shew to the Court, that the mere finding, in point of law, could not be constituted a larceny. He cited four different authorities, but failed in the attempt to prove that this was such a finding as would exculpate the prisoner from the felonious intention, which in law alone effected the criminality. The prisoner well knew to whom the dollars belonged; he had not found that which had been lost; and had not failed to appropriate to his own use that which he was aware must have been the property of the prosecutor. The circumstance of the prisoner's good character, for so many years, been taken into the consideration of the Court, he was only sentenced - 2 years transportation.


[1] See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ802, p. 73 (no. 9).

Published by the Division of Law, Macquarie University