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

R. v. Badderly and Howard (1828) Sel Cas (Dowling) 290; [1828] NSWSupC 26

criminal procedure, convict escape, convict, proof of conviction, convict ship, transportation, convict, accessory to offence, ghosts

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 May 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 84]

[Thursday 1st May]

[Rex v. Baddely.]

Before a full Court.

There had been an information filed against the defendant for aiding in the escape of convicts from this settlement.  He had been taken up on a bench warrant, and was now in confinement.

Rowe now moved that the prisoner might have a copy of the information in order to [p. 85] enable him to plead thereto.

At first the Court thought that he ought to appear and plead before he was entitled to a copy of the information, but on looking into the Statute 6. Geo. 3. C. 4. they thought that the motion ought to be granted, but suggested that there ought to have been a previous application to the Attorney General.

Postponed for this latter purpose.

see notes Vol. 3. p. 17.[1 ]

Dowling J., 16 May 1828

Source: Australian, 21 May 1828

 

William Badderly and Thomas Howard were indicted under several counts laid in an information presented by the Attorney-General, partly for aiding and abetting, and partly for assisting in and contriving the escape from Sydney of a Crown prisoner, whose sentence of transportation to New South Wales was unexpired.  The indictment, on the whole, embraced nine counts.[2 ]

The Attorney and Solicitor-General conducted the case for the prosecution.

The first witness called was

MR. THOMAS RYAN - examined.  I am a Clerk in the Colonial Secretary's Office in this Colony.  I have the keeping of his Majesty the King's pardon, for a man named William Clarkson.  I obtained it from Mr. McLeay.  I remember the arrival of the man so named, Clarkson, in this Colony.  He came here on the 28th of April 1826, as a prisoner of the Crown.  He came on board his Majesty's ship Success to the Colony.  His name is registered in the books at the Secretary's Office as a prisoner of the Crown for life.  I entered this man's description in the office books.  Here is an original entry that I made of him in the books at the Secretary's Office upon his arrival.

A book was here handed in, in evidence, containing the entry adverted to.  The witness continued.  Some short time after the prisoner Clarkson's arrival, his Excellency the Governor signified his pleasure, in writing through the Colonial Secretary, that William Clarkson should be allowed to live at Newcastle, and be off the Stores on his own hands, to employ himself, on his own account, in any lawful occupation, but subject to the condition following;  that he should not go beyond a distance of twelve miles from the settlement (Newcastle.)  There was also another condition.  It was, that this man Clarkson should report himself so many times a year, six times, I believe, in person, to the Commandant at Newcastle.  This prisoner was tried in the Island of Mauritius, on the 4th day of March, 1826.  He was transported to one or either of these Colonies, New South Wales, or Van Diemen's Land, for the term of his natural life.  The prisoner was brought to this Colony in his Majesty's ship Success, commanded by Captain Stirling.  The prisoner's complexion was dark.  He stated himself to be a married man, and a protestant.  His height was measured, and proved to be five feet seven one-half inches.  Upon his arrival at Sydney, he was allowed to go at large for ten days.  He was then sent to Newcastle.  I wrote a passport for his transmission thence from Sydney.  He was a dark complexioned man - a sort of mulatto.  He was indeed a remarkable looking man.  There are numbers of person now in the Colony who hold, on similar conditions, the like indulgence to Clarkson.

FRANCIS ROSSI, Esq. called.  Had been a resident at the Mauritius for many years, and in a public situation there.  Knew the Collector of Customs at the Mauritius.  Considers the paper which [t]he witness then held to be in his the (Collector's) hand writing.

A paper was upon this given in to the Registrar of he Court, but not read.

JAMES LAIDLEY, Esquire, had also resided for some time at the Mauritiush,  having left it since March 1827.  Is acquainted with the hand-writing of Mr. Ball, the Chief Secretary there.  The paper now produced is in his hand-writing.  At the Mauritius; the signature of this gentleman to any official document, is considered to be quite sufficient, and it is invariably acted upon there as a deed or Act of the government.  Considers this paper then in his (witness's) hand, a fair copy of the original document to which Mr. Ball's the Chief Secretary's name is affixed.

Counsel for the prisoners objected to this paper being received in evidence, on the grounds of its being a copy and not an original document.

MR. JUSTICE DOWLING.  Has the Colonial Government acted upon this in its measures with regard to he person called Clarkson, as a genuine instrument?  If so, then it is admissible in evidence.  The question in this case continued his Honor, is whether or no this Clarkson was, de facto, a prisoner of the Crown to this Colony; and if so, whether one or either, or both of the defendants in custody aided in his escape.

MR. RYAN recalled.  I have a paper writing in my possession under which authority Clarkson came to this Colony.  It purports, that "in consideration of some favorable circumstances, his Majesty had been graciously pleased to grant his royal mercy for the crime committed, viz, murder, on condition that he (Clarkson) should be transported to New South Wales or Van Diemen's Land, or some of the islands adjacent thereto."  This paper bore the royal sign-manual, and was dated Carlton-house.  When the prisoner (Clarkson) arrived in the Colony he was brought to the Colonial Secretary's Office to be mustered, as is the custom on the arrival at the Colony of any transported prisoner.  Another paper was identified by the witness, as being a genuine receipt, delivered at he time of Clarkson's arrival.  It bore the signature of the Secretary of the Governor at the Island of the Mauritius, and was to the following purpose:  "I have the direction of his Excellency the Governor of the Mauritius, for the information of his Excellency the Governor of New South Wales, to state that a convict, named William Clarkson, has been put on board  his Majesty's ship Success, for transportation to New South Wales or Van Diemen's Land.  He was tried for murder, and his sentence commuted to transportation for life, by virtue of a document, which I herewith send you."

Captain MATTHEW PROCTOR examined  Through-out the whole of the year 1827, I had command of the ship Albion.  I arrived with that vessel at Hobart Town on the 1st of January last.  I took from thence a man in charge, named William Clarkson.  I arrived in Sydney, with the same ship, on the 28th of the same month.  Clarkson was not then on board.  I received some money from an agent at Hobart Town, for Clarkson's passage.  On taking this man into my ship, I received a document, the one now shewn to me.  It reads as follows:  "To Captain Proctor, of the ship Albion.   Herewith receive the body of William Clarkson, charged with being a runaway from New South Wales, and hereupon keep him in safe custody, till duly delivered up to the principal superintendent of police, Sydney  dated the 19th January, 1828  (signed) T. M. Lassey."

Witness continued  Although I received this person as a prisoner, I took him on board in the capacity of a private passenger.  He was fed, and lived on board, as a steerage passenger.  I knew him to be a runaway convict.  The passage lasted several days.  On the sixth day I saw him on board the vessel.  It was in the afternoon, I heard an alarm made, that there was a man overboard.  This was between eleven and twelve o'clock at night.  I lay in bed at the time, and was considerably unwell, but immediately got up, and gave orders to lower down the gig (a boat).  The night was so very dark, that I could not distinguish any object, however short the distance.  It was then blowing a strong gale, and the ship was running at the rate of eight knots an hour.  The defendant (Badderley), with some of his watch, got into the boat, and was away some time  until, by their length of absence, I became alarmed for their safety.  In the meantime I ordered the ship to be brought-to.  They afterwards returned without having succeeded in finding the lost person.  Next day we arrived in Sydney Cove, when a custom-house officer came on board, to whom I reported the loss of the prisoner (Clarkson), who had destroyed himself by drowning.  Previously to this, I had mustered the ship's company, and saw the passengers on board, and found the person reported to be overboard, was Clarkson.  Immediately on my arrival in the cove, I wrote a letter to the Colonial Secretary here, informing him of the loss of Clarkson.  I gave no receipt at Hobart Town for his body, and therefore did not put him in irons.  I treated Clarkson the same as a private passenger.  On the night that the alarm was made, it was the defendant's (Badderly's) watch on deck.  I did hear a splash in the water, and see a man's hat overboard.  Badderly made a statement, in writing, about the drowning of this man.  [Here ensued a cross-examination of the witness, from which there resulted nothing material, in addition to the facts previously elicited.]

Mr. McLeay, Colonial Secretary, and Mr. Harrington, his Assistant, having deposed to the validity of certain papers, relating to the man Clarkson, mentioned in the course of previous evidence, and Mr. Raymond, Searcher of Customs, and Mr. Sydney Stephen, who had been a passenger in the Albion, having also deposed - the former to the arrival in this port of the Albion, in January, and her departure thence in the month following, and the latter as to being on board of the ship the night Clarkson was reported to be lost over-board.

BRYSON CARR, a seaman, was called and examined.

His evidence, in substance, went to shew that a close intimacy appeared to have existed between Badderly, the second mate of the Albion, and the man Clarkson.  That on the night of Clarkson being reported to have dropped over-board, about quarter of an hour before the report was raised, he was desired by Badderly, who recommended silence to him, to go aft and relieve the helm.  That after this he saw Clarkson on board of the ship, while in harbour, and also him also going over the side of the vessel into a waterman's boat.

The witness on cross-examination wished to maintain that his evidence, on the present occasion, accorded perfectly with what he had previously deposed before the magistrates.  That it was for his maintenance, as a crown witness, he had received from the Deputy Commissary General, 6d.  That he had never seen a ghost; but could not say if 'twere Clarkson's ghost rather than the living Clarkson he had seen going over the ship's side.  That he never had any words with either of the defendants  but believed he might have said he had a pique against the vessel, & would expose the defendants[.]

THOMAS CARR, another seaman belonging to the ship Albion, deposed to being the man who threw the hat over-board.

At the conclusion of this person's evidence, it being then late in the day, and it being understood that there were a good many more witnesses to be examined, both for and against the prosecution, it was resolved to adjourn the further hearing of the case till ten o'clock on Saturday, when a further intimation was made to the learned Judge, that prisoners Counsel was too indisposed to resume the case that day.  The Court adjourned till Monday, when other witnesses were examined, whose evidence went principally to shew that Clarkson had finally disappeared at the period of the ship Tyger leaving this harbour for Valpafaiso.  In other points there was little elicited but what may be collected from the tenor of the evidence as detailed.

For the prisoners, Counsel raised several legal objections, upon which, Mr. Justice Dowling declined just then, giving any private opinion, reserving them, if required, to be thereafter moved in arrest of judgement.

Witnesses were then called to shew that three of the witnesses, three seamen, who had been examined on behalf of the Crown, were men of no good repute, men whose oath was not to be depended on.

The learned Judge summed up the case to the Jury at very great length, putting it to them to consider  first, whether they were satisfied that the person named as William Clarkson, at the time mentioned in the information, was in any one part of New South Wales or Van Diemen's Land under an unexpired sentence of transportation  and secondly, had the defendants, or either of them, in the language of the Act of Parliament and according to the words of the information, aided and abetted the in escape or intended escape of the man.  Several objections had been submitted to the Court, which, if the result of that trial should render it necessary, might be brought under the notice of the Judges.  His Honor would therefore reserve these points for more mature deliberation.

The Jury returned a verdict of guilty on the eight count, against both defendants for aiding and abetting in the escape of the prisoner Clarkson.  Judgment was deferred, and the defendants were remanded.

 

Forbes C.J., Stephen and Dowling JJ, 21 May 1828

Source: Australian, 23 May 1828

 

Joseph Badderly and Geoge Howard, the former second mate, and the latter the boatswain of the ship Albion, convicted of aiding and abetting in the intended escape of a prisoner of the Crown, named Wm. Clarkson, from the colony, were sentenced[3 ]  Badderly, to pay a fine of £50, the other, Howard, a fine of £10, to the King.  Each to be imprisoned till his fine should be paid.

In passing such a sentence as that just described, the learned Judge wished it to be understood distinctly, that the circumstance of its being a first case of the kind, the confinement the defendants had already endured, and the presumption that the fines, such as they were, would operate as an example to others, had been considered, and had induced the Court to pass a more lenient sentence, than it could promise to pass on an offence of a similar enormity, thereafter  an offence which, if allowed to be practised without the certainty of severe penalties following, upon a conviction of it, would be a perfect bar to the ends of justice, and would go to render the laws of transportation totally inefficacious.

The defendants, upon satisfying the penalties prescribed, were discharged from farther custody.

Notes

[1 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this part of the case, the records in theSelect Cases are a duplicate of those at Vol. 3, 2/3186 p. 17.

[2 ] The charges and a summary of some of the evidence (including a copy of Clarkson's  indent) are in Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, pp 148-156.

See also Sydney Gazette, 21 May 1828; and see 20 August 1828.

[3 ] See also Sydney Gazette, 23 May 1828, stating that the offence was a breach of s. 39 of 4 Geo. 4 c. 96.

Published by the Division of Law, Macquarie University