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

R. v. Morgan [1828] NSWSupC 63

highway robbery, accessory to offence, presumption of innocence, death recorded

Source: Australian, 27 August 1828

Mr. Chief Justice Forbes having taken his seat in Court, William Morgan, indicted for robbing David Nolan of certain articles of wearing apparel during the evening of the 2d of July last, was put to the bar.[1 ]  From the deposition of the prosecutor it would appear that as he was, about 8 o'clock of the above evening, coming out of a public-house bearing the sign of the Half-moon, near the Market-wharf, he was suddenly assaulted by several men, the prosecutor supposed their number to be from five to six, who knocked him down and whilst he lay on the ground stripped him of jacket, waistcoat, hat, and handkerchief; after effecting so much the ruffians ran off; the prosecutor called lustily for assistance and some person came up to him.  About 2 o'clock next morning the prisoner was detected by a constable laying under a boat which was turned bottom upwards on the Market-wharf.  He was intoxicated, and from this person were taken the waistcoat and hat which the prosecutor deposed had been stolen from him on the previous evening.

The prosecutor could not swear that Morgan, the prisoner, actually constituted one of the party who had assaulted and robbed him on the occasion already mentioned.  He felt positive that it was not the prisoner who had knocked him down, as he recollected pretty distinctly the faces of those of the party, and considered if he could be hold them again that he should know them.

His Honor the Chief Justice recapitulated the evidence adduced to the Jury.  It was a case, his Honor considered, upon which conclusions could alone be raised from circumstances.  Admitting the evidence of the prosecutor to be altogether true, it would be granted as certain that there had been a commission of highway robbery by some party, and whether the prisoner had or had not formed one of the party, or been present, or assisting in any way in the commission of such offence, was the point into which the Jury would have to enquire and conclude upon.  Whilst the prosecutor admitted that the prisoner might have been amongst the party who attacked him, it should also be observed that he had acquitted the prisoner of being the man who had knocked him down, as well as of being amongst the men by whom he was afterwards surrounded, and whose faces the prosecutor considered he should know on again beholding them.  The prisoner having been found sleeping under a boat turned bottom upwards on the Market-wharf, as the constable had deposed, and with a waistcoat stolen from the prosecutor on the evening previously, it therefore became him, the prisoner, to say how this waistcoat had come into his possession, because in such case the law would pronounce the person in whose possession a stolen article was found, to be the thief, unless the accused could satisfactorily account for how he had acquired it.  The prisoner had not proved how he had got possession of the waistcoat in question.  He had affirmed that he was intoxicated, and it was not impossible but that some of the actual robbers might have placed the stolen waistcoat in the same place where it was found; but upon the degree of credit to be given to this complexion of the case, it would be for the Jury to determine.  On the law of the case his Honor would observe that if it could be proved, or clearly presumed that the prisoner had contributed the most trifling aid by joining in any way in the commission of the robbery, or in taking a less active part even in watching for others, he was as guilty as if he had been actually the individual who knocked down and robbed the prosecutor.

The Jury returned a verdict of Guilty, and the prisoner was remanded for sentence.[2 ]

Notes

[1 ] See also Sydney Gazette, 25 August 1828.

[2 ] He was sentenced to death recorded (Sydney Gazette, 8 September 1828).  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