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

R v Hogarty, How, Baily and Laragy [1826] NSWSupC 15

criminal procedure - arrest of judgment - indictments - South Creek

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 4 March 1826

Source: Sydney Gazette, 8 March 1826

 

Daniel Hogarty, Ralph How, James Bailey, and James Laragy, convicted of being accessaries after the fact, to the robbery at the house of Mr. Hayes, were placed at the bar, when the Attorney General[2 ]having prayed the sentence of the Court against the prisoners.  Mr. Rowe moved an arrest of judgment, on the ground that the prisoners should be separately indicted and not jointly.  The indictment set forth that the whole of the prisoners had committed the said act at the same place, and on the same day, whereas he contended it was not the same act in all, as there was a particular defect in each.  Several offenders might be joined in one indictment where the offence was, but where the offence arose from a joint act is [sic] seemed most proper to indict separately, as each man was answerable for some particular defect in himself (2d Hawkins 312).  But if it should be the opinion of the Court that the prisoners could be joined in one indictment, still he contended that it should have set forth that the offence was separately committed by each.

The Attorney General replied, and His Honor the Chief Justice being of opinion that there were nothing in the objections taken to arrest the judgment of the Court, the prisoners were severally sentenced to be transported for 7 years.[3 ]

 

Notes

[1 ]Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.

[2 ] Saxe Bannister.

[3 ] See also R. v. Patient, Morrison, Roberts and MacCullum, March 1826; R. v. Burke and Donahu, March 1826.  Other cases concerning the South Creek robbery were reported in the Australian, 2 and 9 March 1826; and see Sydney Gazette, 4 and 8 March 1826, and 26 April 1826.

Published by the Division of Law, Macquarie University