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

R. v. Bensley (1828) Sel Cas (Dowling) 293; [1828] NSWSupC 42

stealing, cattle, Cowpastures, indictments, approver, evidence of criminal procedure, appeal

Supreme Court of New South Wales

Dowling J., 3 June 1828

Source: Australian, 6 June 1828

Barsella Bensley was capitally indicted for stealing one cow, value £10, the property of Mr. Richard Brooks, to which indictment the prisoner pleaded Not Guilty.[1 ]

Mr. BROOKS being sworn, deposed as follows:- I live near Liverpool.  I have an estate at the Cow-pastures.  It is fenced in partly with a three-rail, and partly with a four-rail fence.  This enclosed paddock contains about 600 acres.  In the beginning of the year 1826 I had between 30 or 40, it might be more or less, head of cattle, running in this paddock.  Prisoner's paddock adjoins mine.  A fence runs between the two lands.  Prisoner's land is to the extent of 800 acres, the whole of which is fenced in.  In Jan. 1826, I found a black cow missing from my run.  There was a good deal of the English breed about the animal.  She was a black cow, marked R B on the off hip.  Her horns were rather turned up, but there was nothing more particular about them.  I have never sold any cattle to the prisoner to my knowledge, but I have sold cattle to many persons.  The paddock in which this particular cow depastured was well fenced in.  I had an overseer in my employ at the period alluded to, named John Neal.  On missing the cow I directed him to go in search of her.  About this particular time I had some words with the prisoner about some pigs which trespassed in his paddock, for which he claimed reparation.  I referred the matter to a Court of Law.  I brand my cattle B on the off hip.  There is no particular communication between the two paddocks.  I have seen some of the prisoner's cattle marked B only.

Cross-examination - Prisoner, was acquainted with the manner in which I brand my cattle.  The particular brand on the cow I found missing was very conspicuous.  I had sold no cattle about the month of Jan. 1826.  I did not give any public notice, nor advertise the loss of this cow; my overseer, however, took prompt measures to enquire about her.  Prisoner at this period had one man servant in his employ.  I know prisoner was then in the habit of killing cattle and taking the meat to Liverpool market for sale.  Prisoner appeared to the world to be a man of property.  My paddock was very carefully enclosed.  The land was not thickly timbered.  There were very few bush fires about the period alluded to.  The fence which separates the lands belonging to me and the prisoner was burnt down in the course of 1825, and also in the succeeding year.  The fence was put up again at the joint expense of myself and the prisoner.  The dispute between me and the prisoner about some pigs took place in Dec. 1825.  I brand my cattle with the letters R B.  Prisoner's cattle, I believe, used to be branded with the letter B only.  It does happen that a brand makes one letter more prominent or more permanent than another.

Re-examined - I had not sold many cattle in Jan. 1826, I had seen the cow in question three days before she was missing, and made prompt search for the beast.

By the JURY - I do not know that the prisoner was in the habit of purchasing cattle about this period to kill, nor whether at that time he had any fat cattle of his own.

JOHN NEAL deposed, that in the beginning of the year 1826, he was in the service of the last witness as his overseer.  In consequence of information received from Mr. Brooks, the witness made diligent search, but without success, after a cow which was missing.  It was a black cow, with horns turned in.  She was in fine condition when lost, and was quite ripe for the butcher.  Knows Mr. Brooks brands his cattle R B on the off side, with which mark, the cow so missing, was branded.

Cross-examined - The horns of this animal were marked with a white spot.  There were several bush fires about the period of the cow being missed, about which time also two cows had been killed, and their carcases found in a burnt state in Mr. Brooks's paddock.  Mr. B. was frequently in the habit of selling cattle.  He sold a black cow to some person.

Re-examined - The black cow in question was certainly never sold to the prisoner.

RICHARD FRYER deposed, that he had lived in the prisoner's service for two years and a half, having left the same service about six months ago.  Recollected in Dec. 1826, the circumstance of the prisoner slaughtering a black cow belonging to Mr. Brooks, which cow was branded with Mr. B.'s brand marks on the right side.  The brand was quite distinct.  The cow seemed to be an old one, and in good condition.  Prisoner told witness he had taken her out of Mr. Brooks's paddock.  Witness had seen the cow many times before in Mr. Brooks's paddock.  After the beast was killed, the hide and horns were burnt.  The meat was taken to market at Liverpool, whither prisoner usually went to dispose of meat twice a week.

The ATTORNEY GENERAL here closed his case for the prosecution, and certain technical objections being made on behalf of the prisoner, and overruled by the learned Judge, two witnesses,

Mrs. MARY WOODWARD and Mr. Surg. CONNOLLY were called, who deposed, that from certain circumstances having come within their knowledge, they would not believe the witness Fryer, the approver, on his oath.

Mr. JUSTICE DOWLING then proceeded to sum up the evidence.  With regard to the objections so ingeniously taken by the learned Counsel for the prisoner, the learned Judge would taken occasion to observe, that in point of law in the framing of any criminal process, it was essential to describe time and place, but in the construction proper to be put upon an offence, such particularity could not be deemed so very essential, because time and place constituted not the essence of an offence.[2 ]  The objections therefore taken to the information against the prisoner, the learned Judge did not consider ought to be of any avail.  We have to consider this indictment, observed the learned Judge, as charging the prisoner with stealing a cow on the 10th Jan. 1826, time being wholly immaterial.  By statute, 15 Geo. 2. by which we are to try this prisoner, it makes the offence of cattle stealing, amongst other offences, a capital felony.  A subsequent statute has been passed, which is merely a recognition of the old law, and makes this offence a statutable felony.  If it had been made obvious to me, continued the learned Judge, that the new Act provided a different punishment from that by the Act under which the prisoner was tried, the objection would probably have had great weight.  The present charge affects this man's life, and in the result of your verdict, gentlemen, being unfavorable to the prisoner, portends the most disastrous issue.  It is but fair to the prisoner to state, that the material witness who has been examined in this case was a witness surrounded with every circumstance of suspicion, and ushered into the box, confessedly as a man of the most abandoned character.  This witness too, it must be recollected, himself confessed that he was a party concerned in the offence with which the prisoner at the bar now stands charged.  Gentlemen, it is usual for Judges, whenever an accomplice comes forward to give evidence against other accomplices to warn the Jury not to believe such witness's testimony, unless confirmed by other testimony, whence it may be presumed that such accomplice is a witness of truth; the testimony of accomplices being worthy of suspicion, seeing that they come forward to purge themselves of their own guilt, and save their own necks by testifying against an associate.  I must therefore beg of you, gentlemen, to receive this witness's testimony with great caution and suspicion.  The question for your consideration is, is this man a creditable witness?  He is a competent witness in law - the question is as to his credibility.  Before, therefore, you arrive at a conclusion upon the case at present before you, you must be satisfied that this witness has been confirmed in some particulars.  It is, however, not necessary that he should be confirmed in all particulars; because if that were the rule, it would not be necessary to have recourse to the testimony of accomplices at all; for it is only in default of better testimony being forthcoming, that the testimony of accomplices is ever resorted to for the ends of public justice.  It is also worthy of remark, on the other hand, that it is extraordinary some pains have not been taken to bring forward a person alluded to in the course of a cross-examination of a witness - one Fleming.  This person is said to have been alive yesterday morning and in close conversation with this witness (Fryer).  How does it happen he had not been called to confirm Mrs. Woodward's testimony?  This is for you, gentlemen, to observe.  The time has now arrived for you to make up your minds on the solemn issue of guilty or not guilty.  The prisoner stands charged with a capital felony; and if you, gentlemen, find him guilty, it would be doing an injustice to the public if the law were not allowed to take its course.  You will, gentlemen, have to make up your minds whether or no the witness Fryer is a witness of truth, and his story be confirmed by collateral circumstances.  If you entertain a sober, rational doubt, on the prisoner's guilt, I am sure gentlemen, that doubt you will feel a pleasure in giving the prisoner the benefit of; and, in your decision I feel persuaded you will fearlessly discharge your duty to the Colony on the one hand, and to the prisoner on the other.

After about five minutes' consideration, the Jury returned of Not Guilty.[3 ]


Forbes C.J., Stephen and Dowling JJ, 15 August 1828

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

[p. 323]

[Where a prisoner was convicted and sentenced at one criminal Session, the court could not review the sentence at a subsequent Session.]

Tuesday 15 August 1828


Forbes CJ

Stephen J

Dowling J

The King v Barzilla Bensley

Dr Wardell applied to have this prisoner discharged under the following circumstances:-  The prisoner had been convicted in February last of Cattle Stealing and sentence of death passed upon  him.  It was afterwards discovered by the Judicial authorities of the Colony that the Conviction was not tenable on the ground that the trial had taken place upon an old law, which law had been repealed at the time the trial took place.[4 ]  He was afterwards tried upon two other informations for the like offence, and found not guilty.  The prisoner was now informed that the first conviction was still in force against him and that the law must take its course under these circumstances he [p. 321(sic)] Dr Wardell was now instructed to move for the discharge of the prisoner on the ground of the irregularity of the proceedings [or that the Judgment agais. the prisoner be reserved for grounds appearing on the face of the proceedings].[5 ]  He believed that the Court had judicial knowledge of the alteration of the law on which the prisoner had been tried, and that the law on which he had been tried was in fact repealed at the time of his trial.  This he imagined would appear from the record of the proceedings on the files of the Court.  It was a matter of great difficulty in all cases for the Court to reserve a Judgment or give relief to a party in these circumstances in several other cases tried at the same Sessions prisoners had been discharged after conviction, it appearing that they had been convicted on repealed laws.  There might perhaps be a distinction between those cases and this; but if it admitted of some doubt, still the prisoner was entitled to the benefit of the doubt.

Forbes CJ.  I understand your proposition to be this: and if I am [p. 322] wrong you will correct me as I go on.

You state with respect with this person that he had been tried for a certain capital offence convicted and sentence of death passed upon him; that after this it was supposed that the Statute under which he had been convicted having been repealed and no longer existing, all that took place against him was a void proceedings; that after this other informations were preferred against him in this Court, and that upon those he was tried and acquitted that subsequently to this he has been informed that the first sentence was good in point of law, and that therefore it is still an existing and valid sentence and that he is liable to undergo the punishment affixed by law to his sentence, you now seek to relieve him from what you apprehend to be an erroneous conviction and desires this Court to order his discharge.

Dr Wardell assented to this view of his proposition.

Forbes C.J.  With respect to [p. 324] the case itself, it having been tried more than a session since there is no power in this Court to review it.  It has been held that a Court may review its own judgment during the session in which a case is tried, but when once the judgment becomes matter of record (and it is supposed to be so as soon as the session is over) the Court is no longer competent to touch it.  It is conclusive until it is reversed by a competent Court of error, and then only can the sentence be remitted.  I have carefully looked into the cases upon that point, and I find the authorities are to strong to admit of doubt upon it; and therefore I am of opinion that it is not competent look at the judgment in the case of Barzilla Bensley.  It however comes within my knowledge as a fact that the offence charged against Bensley was long anterior to the repeal of the statute on which he was convicted and it was on that ground probably that the distinction was drawn between his case and that of other [p. 325] persons who were tried upon repeated and by gone Statutes[.]  I apprehend therefore that the prisoner is not entitled to any relief on that ground.

Stephen J and Dowling concurred

Application refused.


[1 ] See also Sydney Gazette, 6 June 1828.

[2 ] On other points, the law could demand great precision.  In R. v. Barnett and Byrne, 1828 (Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 105), Dowling J. directed an acquittal, on the ground that the defendant were charged with stealing a cow whereas the animal was in fact a heifer.  The difference between the two is that a cow has had connection with a bull, whereas a heifer has not.  See also Sydney Gazette, 5 December 1828.

[3 ] He had already been sentenced to death for cattle stealing: see Australian, 5 and 14 March 1828.  His case was delayed because the of confusion about the application of criminal law (as to which see Applicability of Criminal Laws Opinion, 1828.)  Forbes decided that his conviction was not affected by the repeal of some of the criminal laws, but that the case should be referred to the Executive Council in any event, presumably because of the delay: correspondence between Forbes and Darling, August 1828, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 184-185.  See also Australian, 14 May 1828 (Bensley's acquittal after a jury could not agree).

In 1833, Barzilla Bensley was a prisoner at Norfolk Island: Dowling, Proceedings of the Supreme Court, Vol. 89, Archives Office of New South Wales, 2/3272, p. 117.

See Bensley v. Stroud, 1829, for the impact of these events on Bensley's wife.

[4 ] See Applicability of Criminal Laws Opinion, 1828, on the reception of the new criminal laws.  This prisoner was one of a number in this position.

[5 ] This is a marginal note in the manuscript.

Published by the Division of Law, Macquarie University