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

R v Kirwan [1825] NSWSupC 31

arrest of judgment - autrefois acquit - double jeopardy - jurisdiction of the Supreme Court - Van Diemen's Land]

R. v. Kirwan [1825] NSWSupC 31

Supreme Court of New South Wales

Forbes C.J., 3 August 1825

Source: Sydney Gazette, 11 August 1825

Patrick Kirwan, a serjeant in the 3d Regiment (Buffs), was indicted under the statute of the 10th Geo. III. cap. 48, for having in his possession a quantity of jewellery, which had been burglariously taken from the house of Lieutenant Thomas Thompson, Naval Officer at Launceston, in September last, knowing it to have been stolen.  It appeared in evidence, that in September last, the house of Lieutenant Thompson, at Launceston, was forcibly entered, and several articles of jewellery taken from the apartment of Mrs. Thompson; that information was given to the Commandant, Col. Cameron, as a Magistrate; and that the circumstance of the robbery was a matter of public notoriety.  Some suspicion having fallen on the prisoner, who was one of a detachment of the 3d Regiment, stationed at that time in Launceston, he was examined, but, from want of proof, discharged.  In April last the detachment returned to Sydney, and after some time information was received by Mr. Pigot, an Officer in the Regiment, that the prisoner had been offering for sale some articles answering the description of those belonging to Mrs. Thompson.  A search was made at his quarters by Mr. Pigot, accompanied by Serjeant-major Duer, of the same Regiment, and a quantity of jewellery was found in a box, amongst which was a ring and a pencil-case, that were identified by Mrs. Thompson, on the trial.

Several objections were taken by the prisoner's Counsel (Mr. Rowe) against the form of the indictment, as he contended that the articles found did not come under the denomination of jewellery, as required by the Act; and also an objection to the jurisdiction of the Court, the crime having been committed in Van Diemen's Land. --- The Jury returned a verdict of Guilty; and His Honor saved the point of jurisdiction to be decided on Friday.

Friday, Aug. 5. --- Rex v. Kirwan. --- His Honor arrested judgment in this case, on the ground that the Supreme Court here cannot take cognizance of crimes committed in Van Diemen's Land --- that Colony having a Court of distinct and separate jurisdiction. --- No other charge being preferred against him, the prisoner, on the motion of Mr. Rowe, was discharged. --- Shortly after leaving the Court, Kir- [sic] was again taken into custody at the instance of the Attorney General,[1 ] in order to his being transmitted to Van Diemen's Land to take his trial.[2 ]



[1 ] Saxe Bannister.  The Sydney Gazette, 11 August 1825 thought this was in breach of the double jeopardy principle.

[2 ] He was tried in Van Diemen's Land on 7 March 1826 and convicted, but an application was made for arrest of judgment: Sydney Gazette, 29 March 1826.

For the further fate of this man, see the Van Diemen's Land case of R. v. Kirwan, 1831.

Published by the Division of Law, Macquarie University