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

R. v. Harper [1824] NSWSupC 10

breaking and entering - burglary - Bathurst

Supreme Court of New South Wales
Forbes C.J., 13 August 1824
Source: Sydney Gazette, 19 August 1824


Michael Harper, was indicted for feloniously and burglariously breaking and entering the dwelling-house of Richard Thompson, at Bathurst, in the County of Westmoreland, about one o'clock in the morning of the 18th of June last, and stealing therefrom sundry articles of wearing apparel and other property, besides nine Spanish dollars.

Richard Thompson deposed, that he resides at Bathurst; that about two in the morning of the above-named day, the outer door of his dwelling was forcibly entered by three men; it was moonlight; that one of the robbers clapped a pair of pistols to his head, threatening him with death if he hesitated to give over his money; that one of them (whom he positively and repeatedly identified to be the prisoner at the bar), entreated his associates not to commit murder, observing that they were poor prisoners who were in want of a little money to carry them to Sydney. He gave up nine Spanish dollars, with which they were not satisfied, till he, the witness, swore upon the Bible, that he was in possession of no other cash; and that they then decamped with property to the value of about £40. He had a full and distinct view, by the blaze of a fire which was kindled by one of the robbers, of the dress and countenance of the prisoner, whom he again particularly identified. He has seen none of the property since, neither should he be able to recognize the person of the unapprehended robbers. This was the only witness called by the Attorney General [1] in support of the prosecution.

[Mr. Thompson evinced considerable embarrassment in the course of his examination when called upon to swear positively to the prisoner; which, being observed by the Chief Justice, His Honor enquired into the cause of such timidity, when the witness said that he had been compelled by the ruffians, to enter into an oath that he would not divulge the transaction, from the bonds of which he did not feel his mind released[.] His Honor, however, told him, that an oath, administered as that was by such unauthorised parties, was by no means a moral or conscientious oath, and that he should therefore consider himself as entirely discharged from any obligation it might seem to impose; that he was now bound, under a legal and moral obligation, to declare the truth, the whole truth, and nothing but the truth[.]]

In his defence the prisoner had the temerity to produce two fellow prisoners, who ate and slept with him in the same hut, to establish an alibi; but such testimony was too prevaricative and monstrous to allow of a moment's favourable consideration; indeed, so obvious was the criminalty of the prisoner, that without retiring, the Jury returned a verdict of Guilty. - Remanded. [2]




[1] Saxe Bannister.

[2] Harper was sentenced to death. The Sydney Gazette, 16 September 1824, p. 2, col. 5, noted that "Michael Masper" was sentenced to death on 1 September 1824; no "Masper" had been tried in the previous Sessions, and this appears to be a transcription error.

Chief Justice Forbes recommended to the governor that the death sentence not be carried out in this and a number of other cases, "as no circumstance of cruelty nor anything militating against human life appeared in their cases". The governor accepted the recommendation. (Source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 17-19.)

Published by the Division of Law, Macquarie University