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

R. v. Flanagan et al. [1827] NSWKR 1; [1827] NSWSupC 8

piracy, Norfolk Island, New Zealand, convict escape, convict service, Crown mercy, transportation, convict, sentencing discretion, death recorded, capital punishment

Supreme Court of New South Wales

Forbes C.J., 21 February 1827

Source: Sydney Gazette, 24 February 1827

 -- Flanagan, William Johnson, Hugh Carline, John Boyd, James Drummond, -- Leddington, Abraham Davis, John Maginees, and William Holt were indicted for piratically seizing the brig Wellington, together with Government stores and arms, on the high seas, on the 21st of December last.[1 ]

The circumstances attending the capture of the brig were detailed by the same witnesses as were brought forward on Tuesday,[2 ] and the testimony as to the share which the prisoners took in the transaction, affected them in various degrees.

In behalf of three of the prisoners, Carline, McGuiness, and Davis, it was contended by Mr. Rowe, that their detention on board the Wellington was illegal, and that, where persons are under restraint, and do any act to free themselves, the onus propbandi was thrown upon the prosecutor to shew that it was a legitimate restraint.  For, if the restraint were illegal, there was  no law in existence to prevent their obtaining liberty by any means.[3 ]  Davis was a prisoner sentenced in England to be sent to Norfolk Island, and came out with others in the St. Vincent to Van diemen's Land whence he was transmitted here with a letter from the Colonial Secretary of that Colony, which letter, it was contended, was not sufficient authority for the Governor here to direct his being sent to Norfolk Island.

Maginnis was a prisoner under sentence of transportation for seven years, in pursuance of which sentence, he had been forwarded to Port Macquarie by the then Acting Governor, Col. Stewart.  It appeared, however, that he, together with some other prisoners, were drafted from that settlement in consequence of an order from the Governor to transmit a number of mechanics, and Maginnis was put on board the Wellington in irons for the purpose of being sent to Norfolk Island.  Mr. ROWE contended that the prisoner having been assigned by the proper authority to Port Macquarie, the Governor could not withdraw him without a fresh charge, and send him to a worse penal settlement, and therefore his detention on board the Wellington was illegal.

Carline was a prisoner who had been convicted some time since, of murder, but in consequence of the Judge's impression of his innocence, had been respited, and detained in custody whilst a representation was transmitted home, pending which he had been shipped for Norfolk Island.  It also appeared, that after his departure for that settlement, His Majesty's free pardon arrived in the Colony, and was produced in court, in the course of the trial.  In behalf of these prisoners particularly, Mr. Rowe strongly contended against the legality of their detention.  An objection was also taken, generally, for all the prisoners, that the delivery to the captain of the Wellington was not a lawful delivery, and that he, in fact, had no authority for detaining them.

THE CHIEF JUSTICE. --- "Gentlemen of the Jury. --- This is an information against the prisoners at the bar for an act of piracy committed on the high seas, and within the jurisdiction of this Court, on the 21st of December last.  Before I proceed to sum up the evidence, and to direct your attention to the different degrees in which it affects the different prisoners at the bar, I will first dispose of the preliminary points praised by Counsel for the defence, and clear the case of those objections that have been taken as regards the legality of the confinement and transportation of some of the prisoners.  It is contended that the prisoners are proved to have been in a state of duress, and they have done no act beyond that of liberating themselves.  It is, indeed, a momentous question, how far persons in a state of duress have a right to redress themselves by an act of their own.  Certain it is, that, so tender are the British laws in the preservation of personal liberty, they will go a great way in justifying the means resorted to by persons illegally under restraint, of recovering their natural rights, and protecting their persons.  The whole of the laws resolve themselves into the simple principle of protection of person and property; and whenever men are under duress, and any act is charged against them as a crime, which act became necessary to their own protection or preservation, it must be shewn that such duress was lawful.

"It would have been competent to the prisoners to have placed upon the record, in defence of the act charged against them, that they had been unlawfully detained, and that they liberated themselves in defence of their natural rights.  But then it is necessary, when men rest on a natural right, to shew that it has been exercised in subordination to the known and constituted laws of society with regard to the rights of others, and that every legal means have, in the first instance, been resorted to.  We have before the Court a prima facie case, taking all the circumstances together, that the prisoners were lawfully handed over to the Captain of the Wellington for the purpose of transportation.  It is in evidence that a list of persons, amongst whom were the prisoners, was transmitted from the Office of the Colonial Secretary, in the ordinary form, addressed to the master of the hulk, directing him to tranship the persons whose names were therein mentioned, on board the Wellington, that a corresponding list was passed from the Superintendent of the hulk to the Captain of the Wellington, and that the prisoners were delivered over to the latter in chains.  And a strong prima facie case is therefore raised, that they were legally in confinement for the purpose of transportation; the onus of proof is thereby thrown upon them that they were not liable to the effect of the Governor's order upon which they were to be conveyed to Norfolk Island; and this brings me to a consideration of those three cases upon which a defence of this nature has been raised.  With respect to Davis, it appears from the evidence of a clerk in the Colonial Secretary's Office, that a letter was received from the Colonial Secretary of Van Diemen's Land, addressed to the Secretary of New South Wales, informing him of the arrival in that Colony of a vessel containing prisoners, among whom were a certain number of persons ordered by the Secretary of State to be sent to Norfolk Island.  By a late Act of Parliament, commonly called Peele's Act, His Majesty is empowered after conviction to send prisoners to any part of the Colonies.  The place to which they are to be sent is communicated through the Secretary of State.  Instructions to that effect were sent to the Government of Van Diemen's Land, and a letter in consequence, forwarded with the prisoners from the Colonial Secretary there, to the Colonial Secretary in this Colony, containing the Secretary of State's instructions, and I therefore think the proof is sufficient as could be expected in such a case, it being an authority which could only be exercised through a succession of public offices.  The onus, therefore, is thrown upon the prisoner to shew that he was not able to the effect of those instructions, and, not having done so, I am bound to say, that with respect to Davis, nothing has been urged, to relieve him from the consequences of his after act, supposing you to be of opinion that the evidence brought forward attaches itself to him.

"As regards Magennis, I am of opinion that he was irregularly removed to Norfolk Island.  He appears to have been ordered there from Port Macquarie, as a mechanic --- the order merely directing  a certain number of mechanics, without mentioning their names, and leaving the selection to the Commandant.  By a clause in the Act of Council, No. 5, it is enacted `that it shall be lawful for the Governor or Acting Governor, by an order in writing, registered in the office of the Secretary of the said colony, to withdraw any person or persons, now, or hereafter to be transported or sent to any penal settlement, or place, as aforesaid, and to employ him, her, or them, either in irons on the public roads or works, or in the ordinary service of the Crown, or to assign him, her, or them, to settlers or others, to be dealt with in all respects as if he, she, or they were under sentence of transportation from England."  Now, the object of this law, appears to be this, - it may happen that some men, who are transported to a penal settlement behave so well that something short of a pardon should be given by withdrawing them, and assigning them to settlers, or keeping them in the ordinary service of the crown; or, it may be, that the conduct of some shews that the penitentiary to which they have been consigned works no good, and the Governor is enabled to send for an employ them in irons on the public roads or works of the colony.  The Crown Officer contends that they may be employed at Norfolk Island; but when I look at the regulations respecting these places, when I see that they are insulated by law, and separated from the other parts of the Colony; that all intercourse with them is prohibited, I cannot suppose it was the object of that act to allow the Governor to remove a prisoner from a less penal settlement, and, without any new charge send him in chains to Norfolk Island.  Such a power is not within the words of the act, which is penal, and must be taken strictly, and cannot be extended by construction - and therefore I consider that this person was irregularly sent.  But I must stop here.  I cannot say that he was justified in resorting to any act, however violent, to regain his liberty.  He was still under coercion to a certain degree.  It would have been but right in him to have forwarded a representation to the Governor that he did not consider himself liable to be sent to Norfolk Island, and I think I know enough of the temper of the Government to say, that it would have been received and enquired into.  At all events this Court was still open, but it is but justice to the Government to say, that representations from prisoners are always attended to when they are sent, and I consider that this person did not resort to legal, before he he [sic] is accused of resorting to illegal means.

"With respect to Hugh Carline, I have no hesitation in saying that I believe it to have been purely through mistake, that he was sent to Norfolk Island; and I think it is due to the Government to explain how that mistake occurred.  Carline was tried and convicted of murder, before me, in this Court, in the year 1825, contrary to my opinion.  It was one of those very few cases, only about three I believe, in which I have had occasion to differ from the finding of the jury.  They, however, felt a different impression of the circumstance of some blood being found upon his shirt, from what I did, and they found a verdict of guilty.  I had no manner of doubt whatever, as to the guilt of the man who was tried with him, but so firmly was I impressed with the belief of Carline's innocence that I respited him.  Circumstances also came to my knowledge after the trial, by which I was convinced that he was not within a mile of the scene of murder, when it was committed, and the other man, upon the scaffold, gave so clear and satisfactory an explanation, as it was impossible he could have invented, and if true, rendered it equally impossible that Carline could have been guilty.  I at once recommended him for a free pardon; but, by his commission, the Governor is restricted from pardoning treason or murder; he can only respite until the pleasure of His Majesty is known.  A recommendation (the consequence of which is the pardon produced to-day in Court,) was forwarded to the Secretary of State, and the prisoner in the mean time sent on board the hulk.  At that time Sir Thomas Brisbane[4 ] did express some intention of commuting his sentence, and sending him to Norfolk Island.  That intention, I have no doubt, found its way into the Colonial Secretary's Office, and originated the mere accident, as I am convinced it was, which caused that man to be sent to Norfolk Island.  I therefore think, in limine, that none of the prisoners can justify their acts upon any grounds that have been set up, and that the case should go to you with such remarks as I shall think it necessary to make on the evidence as it affects the prisoners individually."

(HIS HONOR, here recapitulated the evidence, and proceeded.)  "It is possible that, after the seizure some of the prisoners may have been compelled to take a part; and the conversation, which he is stated to have held with the sergeant, and the regrets which he expressed, are strong circumstances in favour of Maginnis.  As regards the prisoners Davis and Carline, I think the weight of evidence goes to shew that they took no active part.  The case as regards Magennis is not so strong, but still there are several circumstances in his favour,  With respect to the other prisoners we have evidence that they took an active part in the transactions, and the point, therefore, for your consideration, is to weigh the testimony as it affects each of the prisoners at the bar, and say which are guilty, and which are not guilty."

The Jury acquitted Davis, Magennis, and Carline, and found the other prisoners Guilty.  Remanded.

His Majesty's Free Pardon to Hugh Carline being produced in Court, and admitted by the Crown Officer, he was, upon the motion of Mr. ROWE, discharged. [5 ]

 

Forbes C.J. and Stephen J., 26 February 1827

Source: Australian, 1 March 1827

Patrick Flanagan, alias Russel, Richard Johnson, William Liddengton, Henry Drummond, John Boyd, William Hobb, Richard Carter, Thomas Bayley, John Swann, Thomas Edwards, William Walker, and Edward Batemen, all for the same crime, were sentenced Death.[6 ]

Notes

[1 ] The charge was piracy.  According to the Monitor, 24 February 1827, Flanagan's given name was Matthew, and Leddington's was William.  The Monitor's report of this trial immediately followed that of another piracy case, R. v. Walton et al., February 1827.

The Australian (23 February 1827) gave the following account of this trial:

"We have only just time and space to give the details (without commentary) of two cases which came to light during the trials of the prisoners for piracy on Wednesday.  A man named Carline, some eighteen months ago, was tried for murder, and rather contrary to the direction of the Judge, found Guilty.  The Judge had considerable doubts on his mind of the man's guilt, and subsequent inquiries proved the validity of that doubt.  Carline was accordingly respited, and by reason of representations Home, a free pardon was sent to the Colony.  Meanwhile Carline, who had been detained in custody, was kept in Gaol, next removed to the Hulks, and at last notwithstanding the Judge's respite, was shipped off to Norfolk Island with the batch of sixty-six prisoners on board the Wellington!  He was therefore acquitted of the charge of piracy, on the ground of his having only exercised his natural, his legal, and indefeasible right to obtain release from an unlawful imprisonment on board the ship!

"Maginnis was a prisoner for seven years, by virtue of a sentence of the Supreme Court.  In pursuance of this sentence, he had been during the period Col. Steward acted as Governor, forwarded to the settlement of Port Macquarie.  When Norfolk Island became again a penal settlement according to a Proclamation of his Excellency General Darling, several mechanics were required for Norfolk Island.  An order was sent down to the Commandant at Port Macquarie, to forward ten mechanics up to Sydney.  Maginnis was one of the men then put on board a vessel.  He was ironed and conveyed to Sydney in that state.  He was put in irons in the Hulk, retained there 'till the moment of the departure of the Wellington, and then put on board that vessel in irons, for the purpose of being re-transported to the worst and most penal of penal settlements, after being assigned by the reigning authority - by the Acting Governor, to pass his time at Port Macquarie!  He too was acquitted, because his detention on board the Wellington was unlawful!!

"A. Davis, a prisoner, who was transported from England to Norfolk Island, was acquitted, on account of the want of complete evidence to establish the authority on which he was detained."

The Monitor, 24 February 1827, also gave a useful account of the circumstances of the prisoners: "Some peculiar circumstances attached to three of the prisoners, namely, Carline, Macgennis, and Flanaghan.  The former, about 18 moths [sic] since, had been convicted before the Chief Justice of murder, in conjunction with another individual.  The Judge differed in opinion with the jury, and respited Carline, leaving his companion to suffer.  His Honor represented the matter to Sir Thoma sBrisbane,. [sic] and the result was a transmission of his case to His Majesty's Ministers.  While on board the hulk some few months since, his life was placed in peril by the murderous attack of one of his fellow prisoners, made upon him with a butcher's cleaver; the assailant was tried and executed for it.  On the 11th of December he was shipped on board the Wellington by mistake, and on the 2nd of the ensuing month, (January) a free pardon under the royal sign manual was received, and direction issued for carrying the same into effect.  Magennis had been originally sentenced to Port Macquarie, from whence he had been recalled as a mechanic, and was in course of conveyance to Norfolk Island.  Flanaghan had been sent to head quarters for especial removal to that settlement, on some complaint of the Commandant.  Abraham Davis had arrived in the colony under a like especial order to Norfolk Island, of Earl Bathurst, and did not appear to have taken any active part in the tumult."

For Carline's pardon, see Historical Records of Australia, Series 1, Vol. 12, pp 347-348; and see R. v. Webb, 1825.  In the meantime, he suffered an attempt on his life while incarcerated in the hulk; see R. v. Griffiths, 1826.  The report of Forbes C.J. on the trial of Carline and Webb is in Mitchell Library, A 1267-10, Reel CY 697, pp 226-228; and see Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 54-55, 57, 62-63.

See Convict Assignment Opinion, 1827 for discussion of the defence that some of the men put up, that they were being taken to Norfolk Island illegally.

[2 ] The reference is to R. v. Walton, February 1827.

[3 ] In reporting this to Horton, Forbes C.J. said that this was a "very delicate question, and, as there were many to whom the same arguments did not apply, I rather inclined to their acquittal upon the ground of having not taken any part in the forcible seizure of the Wellington".  This was caused by what Forbes called the irregular interference of the government with the sentences of prisoners: the governor had no power to order persons transported from Great Britain to any penal settlement without a further, local, conviction.  Source: Forbes to Horton, 6 March 1827, Historical Records of Australia, Series 4, Vol. 1, p. 698; and see Mitchell Library, Reel CY 760.

[4 ] Brisbane was then the Governor of New South Wales.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).  In cases of murder, however, neither the colonial judge nor the governor could exercise mercy.  In those cases, the final decision whether to carry out a sentence of death had to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645.

By s. 1 of (1752) 25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  However, by s. 4 of this Act, the judge was given power to stay the execution until the Governor and ultimately the government in England made a final decision; for another example of that, see R. v. Fitzpatrick and Colville, June 1824.

[5 ]The Monitor, 24 February 1827, gave more colour here: "Upon the authority of H.M. absolute pardon, Carline was discharged by proclamation, whereupon he exclaimed `God bless King George the Fourth, the honourable Judge, and all the Jury;' in a tone of fervency which portrayed the fulness of his joy, and hastened out of Court "

Despite this, the Governor of the Gaol, Captain Steele, detained Carline for some time, supposedly muttering about gaol fees, according to the Monitor, 24 February and 9 March 1827.

[6 ] Some of these were convicted at the other piracy trials; see R. v. Walton et al., February 1827. Leddington and Johnson were both executed on 12 March 1827.  For an account of their execution and that of other pirates, see R. v. Walton et al., February 1827.  Some of the pirates tried to escape from prison: Sydney Gazette, 6 March 1827.

Published by the Division of Law, Macquarie University