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

R. v. Groves and McColville [1829] NSWSupC 43

stealing, horse - stealing, mens rea - limits of settlement

Supreme Court of New South Wales

Trial, 15 June 1829

Source: Sydney Gazette, 18 June 1829


George Groves and James McColville were indicted for stealing a horse, the property of Captain Brookes, at Argyle, on the 5th of January last.

It appeared in evidence, that early in January last, the two prisoners having absconded from Captain Brookes' station in Argyle, a party went in pursuit of them, taking the direction of Monderoo Plains, where Captain Brookes had another station.  After travelling a considerable distance to the Southward, beyond any inhabited place, the persons who were in pursuit came up with the prisoners, who were concealed in the hollow of a large tree in a swamp, covered in with bark, and immediately secured them.  Near the spot where the prisoners were discovered two horses were found grazing, one of which was subsequently identified as being the property of Captain Brookes, and taken from the Monderoo station.  This was about a month after they absconded.  The prisoners had also with them four muskets, two pistols, a quantity of powder and ball, and some provisions.

The prisoners, in their defence stated that their intention was to escape from the Colony, and had only taken the horses to convey them and the articles they had with them to the sea shore.  In corroboration of this account of the transaction they called the attention of the Jury to the fact that the place where they were discovered was beyond the limits of the settled part of the Colony, where it was impossible they could have made any other use of the animals.

Mr. Stephen, on behalf of the prisoners, submitted to the Court that the testimony did not substantiate the charge of stealing.  The learned Counsel grounded his objection upon the authority of a case cited where it had been held that a person taking his neighbour's horse merely for the purpose of carrying goods, or assisting him in the journey, without the animus furandi, was not guilty of stealing.

The Chief Justice summed up and told the jury that he could not see any analogy between the case cited from the bar, and that which they were called upon to try.  It certainly had been held that a person, either from necessity or caprice, possessing himself of his neighbour's horse, loading and taking him to the end of his journey, was not guilty of stealing, but if he turned the horse adrift, and it never again came to the possession of the owner, was liable on action of trespass, for the value of the horse.  In this case, the circumstances were widely different.  Here were prisoners of the Crown, who avowed their intention was to make their escape from the Colony, carrying off their master's property, and conveying it to such a distance beyond the inhabited dart of the Colony, that it was almost impossible that the animal, if turned adrift there, would ever again come into the possession of the owner.  It appeared therefore to his Honor that the only question for the Jury was whether they were satisfied upon the evidence, that from the situation in which the horse was found, it was under their controul [sic], and that they had actually taken it from Captain Brooke's station.

The Jury found the prisoners Guilty.

Published by the Division of Law, Macquarie University