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

R v Dwyer, Kinnear, Madden and Blewit [1825] NSWSupC 11

murder - felony murder rule - pardon - delegation of Crown prerogative - conditions precedent and subsequent - felony attaint - convict evidence

Supreme Court of New South Wales

Forbes C.J., 30 March 1825

Source: Sydney Gazette, 7 April 1825


Matthew Dwyer, Patrick Kinnear, Thomas Madden, and Robert Blewit, were indicted for the wilful murder of Thomas Cheshire, at Yellamundi's lagoon, in the district of Richmond, on the 25th of Jan. 1824.  Upon the prisoners pleading Not Guilty to the information,

The Attorney General[1 ] opened the case in nearly the following terms:  'The prisoners at the bar are charged with the crime of murder; two other persons are named in the indictment  one of them has died in gaol  the other has not yet been found  so that you will take the case with reference only to the four prisoners now before you.  There is nothing in the case to warrant supposition that the murder was premeditated; but, if death occurs, in doing an illegal act, `tis murder.  The prisoners at the bar set out together, with some other persons, with an intent to rob the house of Mr Cheshire; some opposition was made to their purpose; and one of them fired a shot, of which Mr Cheshire, on the instant died.  It is immaterial by whose hand the shot was fired; if it can be proved that they were all engaged in the robbery, they are all equally guilty.  The evidence, free from taint, against the prisoners, is very slight.  The son in law and daughter of Mr. Cheshire were in the house on the night of the robbery, but cannot identify any of the prisoners; they only remember that they spoke with the Irish accent.  The principal evidence against the prisoners rests upon the testimony of an approver  an accomplice  one who represents himself as having been one of the party.  He can give direct evidence; whether he is entitled to belief remains with the Court to say; but it is my duty to observe, that he was capitally convicted some months since; he has been since pardoned; and I submit that he is a proper evid[e]nce, although great doubt may fairly be held on the subject.  Independent of this man's testimony, the case against the prisoners is very slight.  The Magistrates have used every exertion, since t[h]ey first received information of the murder, and n[o]thing new can be hoped for in the case.  It is now brought forward, with the evidence which I have described."

Thomas Markwell deposed, that he is the son-in-law of the late Mr Cheshire; was in the house on the night of the robbery, which occurred on the night of the 25th of Jan 1824; that he was awakened by the breaking open of the door, upon which he issued forth from his room, when he stumbled against a man, whom he caught and held in his arms, until assistance came to the robber's aid from without, when he was knocked down, and beat severely.  Mr. Cheshire was in the act of advancing from his room, calling out `What's the matter?" when a shot was fired, and he fell dead!  The ruffians then called for a light; there was no fire in the house; they went into the kitchen, and shortly after one man returned with a light.  He exclaimed ``Men what did we come here for  why don't you come on?"  The others had left the bloody scene, upon which he also fled, throwing away the light.  Witness thinks they were Irish by the accent; he only saw the man that had the candle; and heard several voices.

Maria Markwell, wife of the last witness, deposed, that she heard the shot fired; and that the robbers remained in the house about 20 minutes; but is unable to identify any of the prisoners.

Sophia Markwell corroborated the testimony of her parents, adding that the man who procured the light, had his face blackened, and was habited with dark clothes.

Edward Power was now placed in the box, and about to be sworn, when Mr. Solicitor Rowe, on the part of the prisoners, arose: ``Under the same circumstances as on a former day I resisted the testimony of this man, I now deny his competency  he being capital convict, and under sentence of death."

Mr. Gurner, clerk of the Court, was then sworn.  This gentleman proved the conviction of Power on the 30th June, 1824, and sentence of death passed on him on the 3d July, 1824.

Power here produced his pardon, which rehearsed that His Excellency the Governor had pardoned him of various crimes, &c. on condition of remaining in the custody of the Sheriff of New South Wales, till sent to one of the penal Settlements, there to remain during the pleasure of the Governor for the time-being."

Mr. Rowe called for the Governor's Commission, empowering him to grant pardons.  The Commission was produced, and the clause read, empowering the Governor to grant pardons as he shall think fit of all offences, murder and treason only excepted, and in those cases authorising him to suspend the execution of the sentence till His Majesty's pleasure be known.

Mr. Rowe  ``By the statute of the 27th Henry VIII. it is provided that the power to pardon is solely vested in the King, and I deny that the King has any right to delegate to another, what the Constitution has vested solely in himself; and supposing, for argument sake, that the King has the power to delegate, I would contend that the words of the Commission relate only to offences committed at home, to those who have been sent to this country under the sentence of the law.  Surely, if the Commission had any other meaning, would it not be set forth in the Act of the 4th Geo IV?  The 34th  and 35th sections of that Act relate solely to persons sent out as prisoners from the mother country, authorising the Governor to remit their sentences, if he shall see cause; and even then, his pardon must have the sanction of one of His Majesty's Principal Secretaries of State.  I submit that the Commission only applies to offences committed at home; I object also to the pardon on another ground  it is only conditional; the witness comes to the Court in vinculis.[2 ]  The condition of the pardon is, that he shall when ordered, go to one of the penal settlements without resistance, and in the mean time remain in the custody of the Sheriff.  Suppose he does resist?  Suppose, when he goes there, he refuses to remain  what then?  His pardon is revoked; the condition is not fulfilled.  A conditional pardon cannot entitle the possessor to its benefits, till the condition is shewn to be fulfilled.  If the condition be transportation, I submit that the witness is not competent, till the term is expired, as then only is the condition fulfilled.  Where the pardon is conditional, the performance of the condition must be shewn."

The Attorney General was called upon to answer the last objection, and relied on the distinction between the effect of conditions precedent and subsequent.  This was a subsequent condition and therefore pardon was good until forfeited.

Chief Justice  `With respect to the objections taken to the pardon, my opinion is, that the last only is valid.  As to the provisions of the Act of Henry VIII. I am not quite clear; but from practice I know that the custom has been, from time immemorial, for the King to delegate the power to pardon to the Governors of his Colonies abroad; and the great Crown Lawyers in England all agree that the King can delegate many of his prerogatives; this is still the King's pardon, though flowing through another channel.  As to the last objection, I am of opinion it is fatal; the pardon is conditional and to entitle the witness to the benefit of that pardon, the condition must be shewn to be performed.  I am quite clear that the Governor has the power to pardon, but it does not stand before me free from conditions sufficient for me to allow its competency."

No evidence sufficient to go to the Jury being against the prisoners, independent of the testimony of the approver Power, the learned Attorney General relinquished the prosecution.[3 ]



[1 ] Saxe Bannister.

[2 ] In bonds, chains or fetters.

[3 ] There was conflicting authority over the ability of attainted convicts to give evidence in the courts of New South Wales.  In R. v. Farrell, Dingle and Woodward (1831) 1 Legge 5, the Supreme Court decided by majority (Forbes C.J. dissenting) that the common law rule against the admission of evidence by attainted felons was not applicable in New South Wales.  However Lord Bathurst told Governor Darling on 24 August 1825 that the ``Laws of the Colony must coincide with the Law of England" and that attaint rendered the felon incapable of giving evidence; a pardon either under the Great Seal of England or under the colony's public seal, restored the capacity to give evidence, except in some cases of perjury: Historical Records of Australia, Series 1, vol. 11, pp 495-496.  He relied on the advice of James Stephen: see Historical Records of Australia, Series 4, vol. 1, p. 615.  See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, p. 38, and see chap. 2 on the development of the law of attaint in the colony.  For other attaint cases in 1825, see Hart v. Rowley, October 1825; Polack v. Josephson, August 1825. See also Campbell v. Hart, 2 August 1825 (Sydney Gazette, 4 August 1825) in which leave was granted to proceed in action at law against a prisoner of the crown convicted of felony.

On 18 March 1825, Lord Bathurst gave instructions to Governor Brisbane on the methods to be used in granting pardons, but this, of course, had not arrived by the time of this trial.  See Historical Records of Australia, Series 1, vol. 11, p. 545; and see Brisbane to Bathurst in reply, 30 September 1825, p. 862.  See also Stephen to Horton, 27 March 1825, Historical Records of Australia, Series 4, vol. 1, pp 603-604.

Published by the Division of Law, Macquarie University