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

R. v. Hackett, Foley, Donoghue, Kanes and Sweeny [1829] NSWSupC 36

piracy - larceny - New Zealand - Shoalhaven


Supreme Court of New South Wales

Dowling J., 3 June 1829

Source: Sydney Gazette, 4 June 1829[1 ]


John Hackett, Patrick Foley, Peter Donoghoe, James Kanes, and John Sweeny, were indicted for stealing 8,500 feet of cedar-planks, the property of Messrs. Berry and Wollstonecraft, on 27th of December, 1827.

The Hon. Alexander Berry -- In Dec. 1827, I received information that a number of our assigned servants had conspired to carry away one of our vessels from Shoal Haven, and I accordingly proceeded there to prevent it -- I arrived at Shoal Haven on the 16th December, and found that a number of the men, amongst whom were the prisoners, had absconded -- a vessel called the Phebe, containing about 8,000 feet of cedar, of the value of about £100, the property of the firm, had been carried off - I do not remember when I had previously seen the vessel, and I never saw the cedar.

John Smith -- I was assigned servant to Messrs. Berry and Wollstonecraft, in December 1827, and was employed at Shoal Haven -- at that time there was a vessel called the Phebe, laden with cedar there, about to proceed to Sydney -- on the morning of the 15th of December, I went on board the Phebe with the prisoners and proceeded to the Society Islands -- I was hove overboard by one of the men who were with us, named Taggart, abreast of Rhiatea -- the prisoners, Foley, Kanes, and Donoghoe, were previously put a shore at Taha, and the others upon another Island -- this was done in consequences of the provisions running short, but I was thrown overboard for fear, when the vessel arrived at Otaheite, I should say that she was stolen -- the cedar that was on board the vessel, was exchanged for provisions with the natives of Movati, one of the Leward Society Isles, and the first land we made -- I am sure the prisoners were on board the vessel -- they assisted in getting her out -- the farm of Messrs. Berry and Wollstonecraft is called Shoalhaven, but the name of the place whence the vessel was taken, is Crookhaven -- the prisoners were present when the cedar was divided amongst the natives, and assisted in unloading it -- we intended to proceed to America, but I was forced to go by the other men; I knew nothing of the intention to take the vessel till a few minutes before it was done; we had 56 bushels of wheat, some pork, and seven casks of water; we got some pigs and potatoes at New Zealand; our crew consisted of 16, and a man named Hunter, who had the command, said we would make the make the [sic] voyage in twenty-four days; the prisoner, Sweeny, was also forced to go with us; I was sent by the natives of Taha, to Rhiatia, when I was taken on board the Satellite -- there have been no promises held out to me to induce me to give evidence; I have returned about five weeks.

John Henry Smith -- I was employed by Messrs. Berry and Wollstonecraft, in December 1827, measuring cedar, at Shoalhaven; I remember, on the 15th of that month, a vessel called the Phebe, laden with cedar, was carried away by some of the men, about 6 o'clock in the morning; fifteen of Berry and Wollstonecraft's assigned servants, amongst whom were the prisoners, went off; I was in hut close to where the vessel was loaded, when two men came to me, one of whom presented a pistol at me, desiring me not to move; the other man then possessed himself of a musket that was in the hut; in the mean time the two other men went on board the vessel and shouted, when two boats came round the point, containing the prisoners and the other men who went away; I saw them go on board; the man who first came to me then ordered me on board the vessel, when I was put into a boat with some of the other men, and rowed for some distance, after which I was again put on board the vessel, and directed to pilot her safely to eht [sic] Heads after which she came to the heads her anchor was dropped, and a quantity of wheat was brought off, when the anchor was weighed, and I was ordered to go into one of the boats, to assist in towing the vessel out, and after passing the Heads, I and three of the men that worked the vessel, and two sawyers, were sent back in one of the boats.

Thomas Maley -- I was in the employ of Berry and Wollstonecraft in December 1827, and was about to proceed the Sydney in the Phebe; I remember the morning she was taken away; the prisoners were amongst the men that took her away; they detained me on board til they cleared the Heads, and then sent me back in a boat.

Michael Keams, an overseer in the employ of Berry and Wollstonecraft, stated, that the prisoners worked under him in December 1827, and were missing, together with a little vessel called the Phebe, on the morning of the 15th of that month; there were fifteen men altogether went away; witness thinks the prisoners were induced to take a part in the transaction by others of the men who went away, who were very bad characters; the prisoners were industrious men.

This was the case for the prosecution.

The prisoner, Sweeney, stated that he was forced on board board [sic] by some of the other men; the other prisoners made no defence.

The learned Judge minutely recapitulated the evidence, and told the Jury they should be satisfied before they found the prisoners, or any of them guilty; that, at the time they went on board the vessel they had a felonious intention to appropriate the property which they were charged with stealing, to their own use, and also that they were consenting to the act, and not forced to participate in it by the other men, not before the Court. 

The Jury found the prisoners Guilty. Remanded.[2 ]



[1 ] See also Sydney Gazette, 26 May 1829, stating that five convicts, assigned to Berry and Wollstonecraft, were committed for trial on a charge of piracy for running away with the sloop from Shoalhaven.  Fifteen men were involved, and they took the vessel to New Zealand, where she was destroyed by natives.  The rest of the crew were either killed or escaped.

Further detail on this case is provided by a despatch from Darling to Murray, 28 July 1829, Historical Records of Australia, Series 1, Vol. 15, pp 83f.  The prisoners were not eventually tried for piracy as they were thought not to have taken a central part in it.  As a matter of law, Justice Dowling said that while piracy could only take place on the high seas, it was still piracy to take a vessel from a harbour and travel to sea.  The prisoners were tried under 7 and 8 Geo. 4 c. 28, s. 12, which made stealing from a vessel lying in a creek an offence punishable by transportation for life.  However, Dowling J. found that the statute was not in force because it had not arrived in the colony at the time of the offence, so the defendants were guilty only of larceny at common law.

On piracy, see also R. v. Taylor, 1829.

[2 ] They were sentenced to transportation for seven years: Australian, 9 June 1829; Sydney Gazette, 9 June 1829.

Published by the Division of Law, Macquarie University