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

R v West [1825] NSWSupC 43

shipwrecked goods - treasure trove - larceny

Supreme Court of New South Wales

Stephen J., 12 September 1825

Source: Australian, 15 September 1825


Thomas West was indicted for stealing 100 bushels of barley and 100 bushels of maize, the property of Solomon Wiseman.[1 ]

The prosecutor deposed that he is a settler residing on the banks of the Hawkesbury.  At the latter end of July last he shipped a quantity of grain on board the Penguin, consigned to Mr. Underwood, of Sydney; the latter has never received the property, in consequence of the vessel having been lost.

Thomas Street examined.  I am owner of the Penguin; the vessel was cast away on the 9th ult, heard of the loss three days afterwards; saw the wreck of the vessel and a quantity of grain on board.  Last witness had shipped 180 bushels of barley, and about 80 bushels of maize.  I also shipped 40 bushels of corn; on inspecting the cargo a considerable part thereof was damaged.  There was a portion of grain which the water had not effected; and was therefore good.  I took with me several hands in a boat to a place called Half-moon Beach, and commenced unloading the cargo, which was deposited on the rise of a bank, about 60 feet above high water mark; the grain was then by my directions placed in two heaps, and left a man on the spot, in order to turn the heaps for the purpose of drying.  The man returned to Sydney when the whole was perfectly dried.  I went to the place a few days afterwards, and discovered that the whole thereof had been taken away.

Cross-examined.  There was no notice stuck up near the place to caution any persons from removing the grain; did not cause advertisement to be inserted in the Public Newspapers to that effect.  No person was left in charge with the property.

George Jilks, a constable, deposed that he went, in pursuance of a warrant, to the house of the prisoner on Friday s'ennight, to search for some grain which had been stolen from Half-moon Beach.  The prisoner on being asked whether he had any grain of such description on his premises, replied he had, and said that he had taken it from the Beach, and had the owners come instead of witness, he would have immediately restored the property.

Cross-examined ---- there was no concealment of the property.

Re-examined ---- Some part of the property had been consumed.  The prisoner said that he had fed his pigs on a portion of the corn.

Solomon Wiseman and Thomas Street were recalled and deposed to a sample of the wheat which was produced by the constable, as being of a similar description with the property stolen.

Mr. Henry Maice deposed that he was at Marouberry's Beach, otherwise called Half-moon Beach, on the 25th of last month, where he saw a quantity of grain lying interspersed with the sand, and part thereof scattered about.  Should not suppose the spot adapted for the preservation of property.  The corn lay between a sand bank and the sea.  The place had the appearance of cattle having been there.  Witness's impression on seeing it was that the grain was abandoned by its owners.  The prisoner was in company with witness when he said that it was a pity he did not know whose property it was, as he would let the party know.  Prisoner's house was situate about seven miles from the Beach where the grain lay.

Cross-examined ---- there was a report that the Penguin had been lost about a week previous to witness seeing the corn.  Prisoner said a quantity of grain had been landed by a boat; but did not know under what circumstances.  Had not the appearance of being left on the sand by the tides.

John Brown, formerly a soldier belonging to the 102d regiment, corroborated last witness's testimony.

Several highly respectable individuals gave the prisoner an excellent character.

The Jury found the prisoner Guilty; but recommended his case to the favorable consideration of the Court. - Remanded.[2 ]



Forbes C.J. and Stephen J., 21 September 1825

Source: Sydney Gazette, 29 September 1825


In the case of William West, convicted of stealing a quantity of barley and maize, the property of Solomon Wiseman, from Half-moon Beach, Botany Bay, Mr. Rowe moved an arrest of judgement, on the authority of the Act of the 26th of Geo. II. cap. 19. and contended that it was not larceny at common law to steal treasure trove, wrecks, waifs, strays, &c; that it made no difference whether the vessel was stranded or wrecked, as no larceny could be committed on goods thrown ashore, under such circumstances.  The property also appeared to have been abandoned; no notice was posted where it was left, stating that it belonged to any person; no notice was given in the newspapers; and it was also clearly in evidence, that it was left in a situation where it was liable to be swept away by the first high tide.  It had lain there for more than a month, and altogether in such a manner, as to imply nothing less than a dereliction on the part of the owner; and where there was a presumption of an abandonment, no larceny could lie before the seizure by the crown, as the first taking was lawful.  The indictment, he contended, should have been under the statute of the 26th Geo. II. cap. 19, by which a new offence was created, and a specific method of proceeding pointed out, which should have been followed in the case then before the Court.  By the 3d section of that Act, it was made lawful that one or more of the Magistrates, or Justices of the Peace, upon information on oath, of any goods taken from a vessel stranded, or found upon the sea-shore, being in the possession of any person, to issue their search warrant, and in case of their not being immediately delivered up to the lawful owner, to commit the party with whom they were found, to gaol, until a payment was made, of treble the value of the goods so taken away.  A particular proceeding was directed by the Act, which must be followed, and no other.  Mr. Rowe then cited several cases in support of his argument, amongst which was one wherein an indictment at common law, for assaulting a custom-house office, [sic] in the discharge of his duty, was quashed, the Act having provided a particular mode of punishment for the offence, and so in an indictment for killing a hare.

The Chief Justice saw no difficulty in disposing of the case; it was not to be supposed, that because a man left his goods unguarded, that he had lost all property in them; nor could it be argued, that if a person were cast on shore, and visited by the elements, that therefore he was to be visited by men, who were to plunder and strip him, or to take his watch from his pocket, and then to plead that he was a stranded man!  Most certainly a highway robbery would lie against such persons, and its commission under circumstances of misfortune, would be an aggravation of the offence.  When an owner, or any person belonging to him appeared, as in that instance was the case, the property was then removed from under the character and description of wreck, which was contemplated by the old laws on the subject.  But, the statute did not go to the common law offence which most clearly existed; and the whole case turned entirely upon a question of fact, as to whether the property was so situated as to raise a presumption in the mind of a person finding it, that it was abandoned.  That question was entirely for the Jury, and was one upon which by their verdict, they had already decided; as to the ownership, there was no doubt of its existing in Wiseman.  Upon every view of the case, he saw on [sic] grounds whatever, upon which to arrest the judgment.

Judge Stephen fully concurred in the opinion of His Honor the Chief Justice, that there were no grounds to arrest judgment.

The prisoner was sentenced to be transported for 7 years, with a promise of recommendation to the clemency of His Excellency the Governor, on account of previous good character.[3 ]



[1 ] See also Sydney Gazette, 15 September 1825.

[2 ] David Dyer was found guilty on a similar charge, part of the property having been found in his possession: Sydney Gazette, 15 September 1825.

[3 ] Dyer was sentenced to transportation for seven years as well: Sydney Gazette, 29 September 1825.

Published by the Division of Law, Macquarie University