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

R v Ashcroft and Doyle [1826] NSWSupC 69

larceny by bailee - trust, breach of

Supreme Court of New South Wales

Stephen J., 17 November 1826

Source: Australian, 22 November 1826

 

George Ashcroft and John Doyle, were indicted for feloniously stealing a quantity of blankets, the property of the crown.[ 1]  Mr. Moore examined.  Is superintendent of the Carter's Barrack, Government Establishment; the prisoner, Doyle, had acted there in the capacity of Store-keeper's Clerk.  The other prisoner was employed as a carter.  On the first of last August witness made a requisition to government for 100 blankets; a man named Greenshaw, another clerk on the establishment, prepared a requisition for that number and witness signed it.  Some little delay occurred before it was sent into the colonial Secretary for inspection by the Governor; but about the latter end of the same month, it was approved of by His Excellency, and Mr. Plomer, the Storekeeper, ordered to comply with the terms of the requisition.  Witness knows that only fifty blankets were lodged in the store at the Carter's Barrack.  The prisoners were employed in conveying them from the Lumber-yard to the Barrack.  Prisoner Doyle was in charge of the requisition.  Upon receipt of the fifty blankets, a credit entry was made in the books of that number as being received.  - Mr. Plomer deposed to his having delivered Doyle, the clerk, 100 blankets on the 2nd. of September last; they had the government broad arrow on them; they were contained in two bales, and prisoner gave a receipt for the same.  The blankets then issued from the store were of the same description and quality as those produced. - Richard Pullen deposed, that he lives in Sydney, prisoner Ashcroft lodged in his house in the month of September last.  About that time he was passing along George-street, and met Ashcroft standing near the Royal Oak pulic [sic] house; he had a government dray in his charge; saw him take therefrom a bale, which he took into an adjoining yard; heard him enquire of a man named Cribb, living at Richmond, if he would buy forty or fifty blankets.  Cribb declined.  In a few minutes the prisoner spoke to a man of shabby appearance, and the latter took the dray to the Carter's Barrack.  Prisoner got into the cart, and put thereon the bale, which witness saw go the premises of a butcher in the same street.  Ashcroft brought a blanket home with him one day, and witness took it to the Superintendent of Police, who thought proper to detain it; it is the same blanket as before the Court. - Mr. George Cornick deposed to finding another blanket then produced, with forty others, secreted in the bed-room of a person named Smithers, to whom the last witness alluded.  The case for the prosecution then closed.  For the prisoners, it was contended, that no case of larceny had been made out against them, and that there was only a breach of trust.[ 2]

Mr. Justice Steven charged the jury, that if they were satisfied the prisoners had taken the property in the manner described by the witnesses, it amounted to a felonious taking, there having been no such trust reposed in them as to make a conversion of the property a simple breach of trust.  - The jury found both prisoners guilty.[ 3]

 

Notes

[ 1] The trial was reported by the Sydney Gazette on 22 November 1826.

[ 2] The Sydney Gazette, 22 November 1826 said that

"Mr. Rowe, for the prisoner Doyle, contended that the indictment charging the prisoners with a larceny, being at common law, even supposing the facts were clear against them, there was no larceny whatever proved.  It had been observed, by Lord Coke, in 3d Institutes, p. p, [sic] 47 and 107, that to constitute the crime of larceny, there must be a felonious taking, that no breach of trust would be sufficient; and, that if the goods be once lawfully obtained, no after misapplication can be felony in the party taking.  Therefore, as in the case before the Court, no delivery of goods from the owner or person having the disposing power could be larceny.  It was admitted by Mr. Moore, and also by Mr. Plomer, that Doyle had authority to receive the property, and Plomer also admitted that when Doyle so received it, all property in him ceased, that it came into the possession, and was pro tempore the property of Doyle, who, if he afterwards committed a breach of trust in converting it to his own use, should have been so indicted, and not for felony, [sic]  Upon another ground also, he (Mr. Rowe) contended that the case under consideration was no one of felony.  Admitting, for the sake of argument, that the parties were merely carriers, and authorised to convey those bales from the Lumber-yard to the Carters' Barracks, yet, even in that case, if they misapplied the goods so delivered to them it would be no felony, and the only remedy would be by civil action.  And this was the distinction, If [sic] a ton of wine or a bale of goods be entrusted to a carrier to take from Sydney to Parramatta, and he dispose of them by the way, it would not be felony, but if he should extract any part, then the larceny would lie. ... 

"The Acting Attorney General briefly replied, and in answer to the argument that no larceny had been committed, contended that the prisoners had only the qualified possession, as in the case of a servant, sent to obtain goods for his master; the actual property always having remained in the Crown for the purposes for which the articles were intended."  The Acting Attorney General was W.H. Moore.

[ 3] The Sydney Gazette's version of this (22 November 1826) was:

"His Honor then minutely recapitulated the evidence, and concluded by observing, that it was not necessary, in all cases, to prove that the prisoners actually converted the property to their own use.  If they were shewn to have possession of it in a felonious manner, it was sufficient to establish the charge against them.  If from the circumstances of the case, the Jury were satisfied that the blankets were delivered by Mr. Plomer, and that Doyle and the other prisoner offered them for sale, they would find the prisoner guilty.  If, on the other hand, they entertained any reasonable doubts, they would give them the benefit of it by an acquittal."

On 18 November 1826, they were both sentenced to transportation for seven years: Sydney Gazette, 22 November 1826; Australian, 22 November 1826, Doyle under the name "Michael" Doyle according to the Australian.

Published by the Division of Law, Macquarie University