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

R. v. Hughes and Donnelly [1828] NSWSupC 43

stealing, in dwelling house, criminal procedure, death recorded, Segenhoe

Supreme Court of New South Wales

Dowling J., 10 June 1828

Source: Australian, 13 June 1828

CRIMINAL COURT.  - (Tuesday.)

CONCLUDING TRIAL.

William Hughes and Patrick Donnelly were both capitally indicted for stealing in the dwelling house of Peter McIntyre, in the county of Durham, property above the value of £5.[1 ]

DONALD McLAUGHLIN sworn - Is superintendent of stok [sic] to the prosecutor.  Lives in a house close to Mr. McIntyre's, a division of his own dwelling-house, but not under the same roof.  Several persons sleep therein constantly.  On the night of the 23d of October last, witness and the other inmates retired to rest between twelve and one o'clock, all perfectly sober.  On getting up next morning witness missed his chest, which was securely lodged the night previously, from out of an adjoining apartment to that he slept in.  This chest contained all of witness's wearing apparel, except what clothes he had on when retiring to rest.  A shepherd, belonging to an out station about two miles off, shortly after brought witness word that he found some things in the road leading from Mr. McIntyre's station, and shewed him a looking glass, witness's property, which had also been stolen, worth about five shillings.  In consequence of what this person said, witness went to the spot pointed out, and observed marks in the grass, and pieces of the chest laying about, together with some musket balls, similar to what were in his chest before it was plundered, at which time the chest contained property, amounting in value to 10l.  Witness, to the station whence the shepherd came, traced his footmarks all the way from where the broken-up box was found.  To these marks the foot of the prisoner Hughes was applied the same morning, and it was found to correspond exactly with them.  Both prisoners were servants to Mr. McIntyre, and employed as shepherds at the two-mile-station, where they slept.  Never saw any of his property since, beside the looking-glass and one stocking.

By the COURT - It was damp weather about this time.  It was about three quarters of a mile from the house.  There were only the foot-prints of one person, which were plain for a quarter of a mile.  Hughes was a watchman at the two-mile station, and had no business away from his station.  Witness would know the track of Hughes from that of the other prisoner.  One of his feet is remarkable.  It is turned in.  He shewed an unwillingness to put his foot into the track, and Mr. McIntyre took hold of it and forced it in.  The traces were leading from Mr. McIntyre's house, Hughes was the watchman over the sheep at night, and was usually relieved about sun-rise.

EDWARD SAPSHURE - Is a shepherd at the Segenhoe Estate, Hunter's River.  The prisoners were watchmen at the station.  On Tuesday morning the 23d of October he had occasion to leave the station to go to Mr. McIntyre's house, about a mile from which he picked up a stocking, and a little further on a looking glass and the scabbard of a sword.  He took them to the farm, where they were claimed by Daniel McLoughlin as his property.  After grinding some corn he returned to his station.  Prisoner was a watchman at witness's station.  Saw the superintendent of the sheep pick up a knife where the box was broken open.  It appeared to be a knife belonging to the prisoner's hut.  Witness had no shoes on at that time.  The path in which the knife was picked up is a common path to the different stations.

WILLIAM SHEARMAN - Is attached to the cattle station at Segenhoe.  On the morning of the 23d of October, between seven and eight o'clock, was proceeding from the cattle station to Mr. McIntyre's, for the purpose of drawing his rations, when he suddenly came upon the prisoners opposite a large gum-tree.  Hughes upon this started up and asked witness what business he had to frighten people in the bush in that way, adding that he had a great mind to knock witness on the head.  Witness said he was not able to do it; and the other prisoner Donnelly spoke of some property being near them on the ground, amongst which witness observed a cloth coat, several white shirts, and a small cutlass.  Witness then went away towards the men's huts.  Had seen such a cutlass as that with the prisoners at Segenhoe.  Returned afterwards to the station, and told William Ricks, the stockman, of what he had seen.  The latter and witness went to look for the property the following morning, but could not find any part of it.

WILLIAM RICKS corroborated the last witness's testimony, adding that on his representing to Hughes how hard a thing it was that McLaughlin should lose his papers, when they were of no service to any other person except himself, Hughes replied he would engage to get the papers again.

Mr. PETER McINTYRE having corroborated in substance the foregoing evidence, which closed the case for the prosecution, and the prisoners being called upon for their defence, Hughes complained that he had not undergone any examination before a Magistrate, and that the present was the first time he had heard any evidence whatsoever in the case.

The Judge upon this asked the principal witness, "do you know whether the prisoners were present at the time you gave your deposition against them before the Justices?"

WITNESS - I do not think they were.

The ATTORNEY GENERAL observed that the depositions in the case had been drawn up in the usual way; upon which other witnesses were appealed to, and it appearing that the prisoner Hughes was borne out in the truth of his assertion, - the learned Judge animadverted strongly upon the inexpediency, and injustice arising to a prisoner in not permitting him to have the benefit of hearing, when before the Magistrates and under examination, whatever evidence might be taken for or against him.  Such evidence he should be master of, in order to afford him, if possible, an opportunity of rebutting it.  In all cases this was of importance, for it might happen that to many an innocent man some crime or another may be imputed, which he should very likely hear the shame and the punishment of, were he not permitted the right of hearing whatever was to be deposed against him, and preparing himself accordingly.[2 ]

The learned Judge then summed at considerable length to the Jury who found both prisoners Guilty, and the Court proceeded to pass sentence upon them - sentence of death recorded.[3 ]

After this Mr. Justice Dowling briefly addressed the Jury, informing them that the Sessions were then closed, and in the name of the County, thanking them for their punctual attendance on the Court during its sittings, and for the satisfactory mode by which their verdicts had been regulated.

Notes

[1 ] See also Sydney Gazette, 13 June 1828.

[2 ] The version of this published by the Sydney Gazette, 13 June 1828, was "Mr. Justice Dowling then observed, that it should be distinctly understood, when a prisoner was under examination before a Justice of the Peace, that he should be present when the depositions were taken against him, as it was the only chance he had of preparing for his defence.  It was of the last importance that this should be attended to, and though His Honor was satisfied that the omission in the present instance arose from inadvertence, yet he felt it his duty again to state, that, in all cases, a prisoner had a right to hear the depositions given against him, and to be confronted with his accusers; because an innocent man might, otherwise, be charged with an offence which he would be enabled clearly to rebut, if he knew who was to appear against him."  For commentary, see Australian, 20 June 1828, supporting the rights of the accused, claiming that it had not been observed in the past in New South Wales.

[3 ] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  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).

Published by the Division of Law, Macquarie University