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

R. v. Kelly (No. 2) [1828] NSWSupC 107

stealing, in bank, business history

Supreme Court of New South Wales

Dowling J., 17 December 1828

Source: Australian, 19 December 1828

Mr. JUSTICE DOWLING having taken his seat, the cases connected with the Bank robbery fixed for trial were called on, when the defendants failing to appear.[1 ]  His Honor directed their recognizances should be estreated, and that the same be handed over to the Attorney General, to use his discretion therewith.  After a short lapse of time, one of the defendant, James Kelly, coming into Court, his trial was proceeded with.  The prisoner was indicted under the 8th and 9th Geo. III. ch. 29, sec. 5½, for receiving sundry promissory notes, the property of T. McVitie, Esq. Managing Director of the Australian Bank, and others, his partners, the prisoner knowing the same to have been feloniously stolen; there were other counts varying the ownership of the property.  Doctor Wardell having stated the case, it appeared in evidence, that between the evening of the 13th of September, and the morning of the 15th, the strong room of the Bank was broken into, and Bank notes to the amount of 11,000l. abstracted.  It was ascertained on Monday morning, that the room had been entered, and the cash box with it contents had disappeared; in this box was deposited, as usual, the Bank notes.  On this discovery, a meeting of Directors was immediately convened, who caused hand-bills to be printed, and posted forthwith in all the conspicuous parts of the town, and had advertisements inserted in the Newspapers, containing the numbers and several amounts of the notes.  The Directors corresponded with the Magistrates on the subject, requesting that they would have the kindness to endorse the notes of such persons who might be supposed to have notes in their possession previous to the robbery.  On the 2d of October last, the prisoner came to the Bank, and presented a parcel of notes amounting to 209l. which on examination, appeared to "the teller" to be part of the notes stolen there from.  The prisoner on being desired, endorsed some of the notes, several of which were identified as having been stolen from the Bank, on the occasion spoken of.  The witnesses for the prosecution underwent a long cross-examination by the Counsel for defendant, the principal effect of which was to tax their memories as to the certainty with which they identified the stolen property.  Their evidence remained unshaken.

The case for the prosecution being closed, the Learned Counsel for the prisoner rose to urge some legal objections, which being overruled by the Court, witnesses in behalf of the prisoner were then called, and the Learned Judge having charged the Jury, on the facts and law of the case, in a minute and most elaborate style, the Jury retiring for a few minutes, returned into Court, with a verdict of "Guilty."  The prisoner was remanded.[2 ]

Counsel for the prosecution, Dr. Wardell, and W. C. Wentworth, Esq., Solicitor, Mr. W. H. Moore.

Counsel for the prisoner, S. Stephen, Esq. Solicitor, Mr. Rowe.


[1 ] This trial was also reported by the Sydney Gazette, 17 December 1828.  See also R. v. Lees, 1828.

[2 ] He was transported for seven years: R. v.Payne, 1829.  See also Sydney Gazette, 8 January 1829.  The bank withdrew the notes from circulation, but was then sued by the holders of them.  Ludicrously, said the Sydney Gazette, 10 February 1829, Kelly was among those who sued the bank for notes he held which were not identified positively as stolen.

Published by the Division of Law, Macquarie University