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

R. v. Muldoon, Bolton, McKoldrick, McMoren and Horan [1828] NSWSupC 62

convict, pardon, convict, expiry of transportation sentence

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 21 August 1828

Source: Australian, 22 August 1828

Some petitions of a novel character came on to be heard yesterday before the Judges in the Supreme Court.  The Judges declined deciding for that day, upon the claims of the several petitioners, who consequently still continue in custody.[1 ]

The foremost among the petitioners, was James Muldoon, who pleaded his claim to be discharged on the following grounds:-  He stated that he had arrived in the Colony by the ship Guildford the 5th, in the year 1822, under sentence of seven years transportation; that while in the Colony, he had been more over sentenced three years transportation to a penal settlement, and that as his original sentence would expire on the 10th day of September next, he prayed that no steps should, before such time, be taken to remove him from Head Quarters.  His case was remanded that further enquiry might be made upon it.

Thomas Bolton was the next petitioner who claimed his discharge from imprisonment.  His claim was founded upon the following narration:-  He had been tried by and before the Penrith Bench of Magistrates on a charge of robbing an orchard.  The petitioner averred that since his conviction, another individual, whose name and description corresponded with his, had been convicted of the same offence which he stood charged with committing.  The Court would not consider this as calling for its interposition, and the petitioner was accordingly ordered to be remanded in custody.

John McKoldrick, the next petitioner, complained that he was in a state of unlawful arrest, for that he having been sentenced originally to seven years transportation, was still in a state of custody.  The only reason petitioner could assign for his being kept in a state of custody, was, from having once been subjected to a colonial sentence of 3 years banishment to a penal settlement.  The term of this sentence, however, had expired some time back, and the petitioner thereupon claimed his discharge.  It was directed that he should be remanded in order that time might be afforded to the Crown Officers to enquire into the truth of particular matters set forth in the petitioner's application.

John McMoren prayed his discharge from custody on the following grounds:-  He arrived in the Colony under a sentence of seven years transportation; this was on the 29th of September, in the year 1820.  On the 31st December, 1825, he was convicted by and before Doctor Harris, the then Police Magistrate at Parramatta, of absconding from his Government employ, and in consequence was sentenced two years to a penal settlement, which additional period of servitude had elapsed.  Petitioner said he had been for some time detained on board the Phoenix hulk, and although he had made repeated representations on the subject of his being in a state of illegal arrest, he had never received any answer thereto, nor explanation as to why he was continued in custody.  This petitioner, together with Hugh McGuire and George Johnstone, whose claims were much alike, were all remanded for a further hearing.

Miles Horan, who was convicted some months ago, with a man named Pearce, of a robbery, for which the latter man was executed, and the prisoner in question received a respite, petitioned for his dispensation from the sentence, thus, through an unhappy mistake, passed upon him.  The Attorney General, on this occasion, appeared as an advocate, and not as his duty most commonly requires, as a prosecutor.  This case has already been before the public, and we shall therefore not enter into a recapitulation of it.  The Chief Justice told the petitioner that all he could just then do in the case, was to submit the matter to the Executive Council, who would not fail to recommend the petitioner for a pardon, should he be proved deserving thereof.[2 ]


[1 ] See also Sydney Gazette, 22 August 1828.

[2 ] See also Australian, 23 May 1828.

Published by the Division of Law, Macquarie University