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

R v Wardell and M'Kenna [1825] NSWSupC 21

Aboriginal trackers - larceny

Supreme Court of New South Wales

Forbes C.J., 25 May 1825

Source: Sydney Gazette, 2 June 1825


Thomas Wardell, and John M'Kenna, were indicted for stealing two sheep, the property of John Wyatt, on the 11th of April.

John Wyatt, lives on the Richmond road, near Prospect; lost two sheep early in the month of April; the place where they had been was broken open in the night, and the sheep taken away; gave information to a constable, who brought two natives with him, and tracked the sheep to a hut about a mile off; prisoners were eating sheep's fry;  found seven legs, two tongues, two livers, and three kidneys in the hut;  the prisoners said they bought the meat at Parramatta.

Cross-examined by Mr. Rowe.  They were yeaned in June or July last; they were not a year old.

John Reilly is a constable; procured three natives, who are expert at tracking, and brought them to the place from whence the sheep had been taken; they conducted witness to the hut, where the prisoners were found; they distinctly pointed out the tracks as they went along; and shewed places where the grass was flattened from the sheep lying on it, while the prisoners were supposed to have rested; the track was not direct to the hut, it turned off in various places; sometimes the natives would lose the track, then discover it again, and point it out to witness; the prisoners would give no satisfactory account of how they came by the meat; it appeared to have been killed about five or six hours; in searching the hut they found a jacket, with an appearance of wool on the shoulders, which Wardle owned to be his.

Mr. Rowe, on the part of the prisoners, took an objection to the indictment, not being laid, ``contrary to the form of the statute;" and also, that it charged the prisoners with stealing two sheep, when they were proved not to have been a year old, consequently did not come under the denomination of sheep, which are in the act specifically distinguished from lambs.

His Honor the Chief Justice, stated, that this was not an indictment under the statute; but merely charged the prisoners with a simple Grand Larceny.   An objection had been urged, that the information set forth two sheep, when in fact they were lambs.  If the Jury should think, that in common parlance, sheep did not mean lambs, and that the prisoners were guilty, they would find a verdict specially on it, leaving the point, saved by the prisoner's Counsel, for after discussion.

The Jury returned a verdict  Guilty of stealing two young sheep, under a year old.    Remanded.[1 ]



[1 ] Without explanation, the Sydney Gazette, 9 June 1825, recorded that on 4 June 1825, Wardle and M'Kenna's judgments were arrested.

On 7 April 1825, the Sydney Gazette reported the conviction of three men, Wood, Blair and Watkins, who were found guilty of highway robbery.  They had been tracked nearly two miles by some natives.  As the Gazette pointed out, Aborigines were unable to give evidence in court (though see R. v. Fitzpatrick and Colville, June 1824).  The newspaper remarked how useful they had been on ``innumerable former occasions since the founding of the Colony" in obtaining convictions through tracking, but that they had often been very poorly rewarded for doing so.

Published by the Division of Law, Macquarie University