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

R v Smith [1825] NSWSupC 3

attempted murder - shooting - Lord Ellenborough's Act - reception of English law

Supreme Court of New South Wales

Forbes C.J., 17 January 1825

Source: Australian, 20 January 1825


Monday.  Stephen Smith was capitally indicted, under Lord Ellenborough's Act, for wilfully and maliciously attempting to shoot John Harris, Esq. J.P., on the 30th of August last, at Cawdor, in the county of Camden.

From the testimony of the prosecutor, it appeared, that having occasion to visit the Cowpastures, in company with Mr. Wild, of the 48th regiment; also, with Messrs. Wm. and Jas. Macarthur  he met the prisoner and another man carrying a gun and a bag; he stopped them, and asked who they belonged to ---- they replied to the Rev. Mr. Reddall, that they had been driving bullocks, and were returning home.  The ingenuous manner in which they replied to all his interrogatories, removed from his mind all suspicion of their being bushrangers; but Mr. James Macarthur differed in opinion, and urged Dr. Harris to secure them.  When the prisoner very deliberately cocked the gun and presented it at him, declaring that he would shoot him if he attempted to interrupt him.  Dr. H. still persisted in following him; he repeatedly presented the piece.  Mr. M. asked him if he knew what he was about, and how he presumed to present  a gun at a Magistrate ---- on this he seemed to waver; but on being pursued, pulled the trigger, upwards of twenty times, at the Doctor; but fortunately it missed every time.  Upon this, the prisoner took it by the muzzle, and aimed a furious blow at him; which broke the stock, and caused the horse Dr. H. was riding, to throw him; at last they were both secured, and safely lodged in confinement.  The charge was drawn from the musket, which was found to have been heavily loaded with a large quantity of powder and fifteen slugs.  This statement was corroborated by Mr. Jas. Macarthur.  The Jury found the prisoner Guilty.[1 ]



[1 ] On 17 February 1825, Smith was sentenced to death, but recommended to the Governor for mercy: Sydney Gazette, 24 February 1825.  The Gazette reported this trial on 20 January 1825.

Later in 1825, the legality of prosecutions under Lord Ellenborough's Act came into question. On 8 February 1825, Governor Brisbane wrote to Earl Bathurst to ask him to refer some legal questions to the crown lawyers in London.  One question concerned the date of reception of the statute law of Great Britain to New South Wales, unless the colony were named in the Act in question.  Two opinions were held on the point, he said, either 1788, the date of foundation of the colony, or 1823, the date of introduction of a legislature.  He also asked about the impact of the colony's constitution, (1823) 4 Geo. IV c. 96, on this issue, noting that Lord Ellenborough's Act (43 Geo. III c. 58) was in question since it was enacted after 1788.  See Historical Records of Australia, Series 1, vol. 11, p. 495.  Bathurst replied unhelpfully.  He said that the question had recently been raised in Newfoundland as well, but gave no answer.  He also left open the issue of the impact of 4 Geo. IV c. 96, noting that a new Act was in the course of preparation: Historical Records of Australia, Series 1, vol. 12, p. 54.  In doing so, he relied on the advice of James Stephen; see  Stephen to Horton, 15 August 1825,  Historical Records of Australia, Series 4, vol. 1, p. 614.  (Eventually the question was settled by legislation; see (1828) 9 Geo. IV c. 83, s. 24, which provided a new date for reception of 1828.  This made clear that Lord Ellenborough's Act was received from 1828 onwards, though it left open the legality of prosecutions before that date.)

A number of people were punished for breaches of Lord Ellenborough's Act on the basis of the unorthodox opinion of Forbes C.J. on the date of reception.  Forbes and Attorney General Bannister disagreed on this question.   Forbes thought that in the absence of a colonial legislature, post-1788 Acts of Westminster were automatically applicable until a local legislature was established, while Bannister, more conventionally,  thought that the correct date was 1788: see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, p. 378.  Once again, Forbes C.J. showed a flexibility about colonial law which others lacked.

Until the question of the applicability of Lord Ellenborough's Act (and the Black Act) was settled, Forbes C.J. thought that prisoners should not be hanged upon conviction under them.  Instead, he recommended, they should be sentenced to life at Norfolk Island.  Forbes said that one of his predecessors, Judge Advocate Wylde, had referred the applicability question concerning Lord Ellenborough's Act to the Crown lawyers in London, but had received no reply.  Forbes said he had no doubts on the issue, but recommended this approach because others did have doubts.  (Source: Forbes C.J. to Governor Brisbane, 27 June 1825, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 42.)

Published by the Division of Law, Macquarie University