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

R. v. Ward and Cooke [1827] NSWSupC 26

Black Act

Supreme Court of New South Wales

Hearing, 9 May 1827

Source: Australian, 11 May 1827

 

The following prisoners were brought up to receive sentence:-

The Acting Attorney General[1] prayed the judgment of the Court against Wm. Ward and Thomas Cooke.  These prisoners had been convicted under the Black Act, as principals in the second degree, upon a charge of shooting one Ratty, a constable at Parramatta.  The case had stood over for a considerable length of time, some doubts having arisen in the mind of the Court, how far under such an indictment the prisoners had been properly found guilty.  It had been admitted by the prosecution, on the outset of the trial, that the prisoners were not the actual party who fired the identical piece at the constable but that another constable, mistaking Ratty for one of a party of persons, among whom were the prisoners that had a design to commit a robbery, discharged the piece.  The prisoners had been first tried for the robbery, but the prosecution failing to prove that the robbery had been completed, the case fell to the ground; the prisoners were then detained to answer to a prosecution for shooting Ratty.  The Court, in reviewing the various circumstances of the case, thought, that as the Act, under which the prisoners were tried, was so strict in its enactments, as to require proof of a gun being loaded with something of a mischievous character, and an intent to do some personal injury; and as there was no proof whatever in the present case of these facts, it being also admitted on the prosecution that the shot wound whereof Ratty died, was caused by one of his own party, the Court must discharge the prisoners.  Cooke was discharged by proclamation; the other prisoner was detained to answer to another information.[2] 

 

Notes

[1] W.H. Moore.

[2] See R. v. Ward and Power, May 1827.

 

These men were only convicted after three trials.  According to the Australian (7 February 1827) and the Sydney Gazette (6 February 1827), Ward, Cook [sic] and James Curry were found not guilty of maliciously firing at Ratty at a trial held on 5 February 1827.  At that trial, Ward was charged as principal, and the others as principals in the second degree.  In the trial which finally led to their convictions, held on 14 March 1827, Ward and Cook were both found guilty of aiding and abetting some person or persons unknown to shoot at Ratty; Curry was found not guilty (Sydney Gazette, 15 March 1827).  The Monitor said on 10 February 1827 that prior to the February trial, Cook and Curry had also been tried as principals and acquitted.

Published by the Division of Law, Macquarie University