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

R. v. Payne [1829] NSWSupC 4; sub nom. R. v. Payne (No. 1) (1829) NSW Sel Cas (Dowling) 295

sentencing discretion - bail after conviction - stealing, from bank - judicial notice, Acts of Legislative Council

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 20 December 1828

Source: Australian, 23 December 1828

Before their Honors the Judges rose, Mr. Justice Dowling observed, that he wished to call the attention of the Court to a circumstance which, on account of the judicial honor and integrity of that Bench, and in order to preserve the dignity of that Court inviolate from the slightest taint or most distant cause of reproach, as well as to set aright any mistaken opinions, begged to advert to the circumstance of a female who was convicted in the course of the week, before him on a charge of felony.[1 ]  The Court did not break up until past one o'clock on Thursday morning.  It was then, on the finding of a verdict of guilty against the prisoner in charge, that an application was made to him to admit the party to bail.  This application was acceded to on the side of the prosecutor, viz. by one if not two of the legal gentlemen who appeared there on behalf of the Bank.  His Honor, at the time, thought it rather a singular application; but, as an instance was cited where the same indulgence had been granted by that Court, on a former occasion, he (the learned Judge) had waved entering into any controversy just then on the subject, and consented to the requisition; the prosecuting party agreeing to admit to bail, on condition of the prisoner being forth-coming when called upon for judgment, to secure which, recognizances were executed, one of 500l. and two others of 250l. each.

What his Honor desired to explain was, that had he not been led by help of the prisoner's counsel into what he now deemed a misunderstanding, he would not have so admitted to bail in the case; two other prisoners found guilty of a similar offence, being then in goal awaiting the judgment of the Court.

The two professional gentlemen retained by the party alluded to, begged leave to explain the precedent which had been adverted to to obtain bail in the case under agitation.  It was a case of a female named Radley, who was charged some eighteen months ago with the murder of her husband.  The charge of the learned Judge, on that occasion (Mr. Justice Stephen), was such, that his Honor, as well as the then acting Attorney-General, were aware from circumstances, had been mistaken by the Jury, who found the prisoner guilty capitally; and owing to this impression, it was consented to by the Crown Officer to admit the prisoner to bail, to appear when called on for judgment.  The learned Counsel then went to compare that case with the present.  Bail had been allowed in the first instance certainly, on account of the impression on the mind of Mr. Justice Stephen, that the man's death had been caused by accident - that his death was in no way designed - but, as matter of fact, the situation of the woman's health weighed most with the Court, and the woman was permitted to retire home to the charge of her infant family.  With regard to the latter case, this, Counsel urged, was precisely a case in point.  The prisoner's health had been long in a state of decline, and the gentlemen at whose instance the prosecution had been instituted did not wish to use unnecessary harshness or severity.  It was upon these grounds that the application on the part of the prisoner to admit the female in question to bail was consented to.

Mr. Justice Dowling did not express himself dissatisfied with the explanation offered, and here the question dropped.


Forbes C.J., Stephen and Dowling JJ, 20 December 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 112] [A prisoner convicted of felony admitted to Bail to come up for Judgment where called upon.]

Rex v Payne

Motion before Judges

This prisoner was tried and convicted before me[2 ] of receiving goods knowing them to have been stolen.  I admitted her to bail to come up for judgment when called upon.  It having been represented to me by Sheriff Carter that this was considered out of doors as an undue act of favour to the prisoner.

I took notice of the circumstance this morning, and excused the act first on the ground that it was done with the express consent and wish of the prosecutor's counsel representing the Attorney General and second that I had been told there were precedents for such a favour; and third that the prisoner being apparently very ill.  I yielded in my discretion to the application.  I said however that I disapproved of the practice as being contrary to all precedent.

Forbes CJ. intimated that as the Attorney General might at anytime enter a nolle [p. 113] prosequi before judgment; he saw no reason why he might not consent to the prisoner being admitted to bail after conviction but before being brought to judgment; and as in this case the Attorney General had delegated his authority to the prosecutors counsel, the latter seemed to have the power of consenting in like manner.

Stephen J. mentioned the instance of Sarah Radley convicted before him of killing and slaying her husband, in which this had been done with the consent of the Attorney General who never afterwards brought her up for Judgment.

The whole Court however disapproved of this as a precedent.


Forbes C.J. and Dowling J., 6 January 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462


[p. 130-131][Indictment for receiving certain notes of the Bank of Australia containing 5 counts.  The 5 Count described the notes as certain pieces of paper the property of T. McVite Managing Director of the Bank of Australia and others his partners  Held of the Verdict that the property was well described and sufficiently laid to support the indictment the Australian Banker suing Act, is admissible in evidence without being proved as a private act of the British legislature.]

[p. 130]Rex v Sarah Payne

The prisoner was tried before me[3 ] on the 18th December for receiving knowing to have been stolen on the 2nd November 1828 certain promissory notes the property of Thomas McVitie Esqr managing director of the Bank of Australia and others his partners (unpaid and unsatisfied) the second count same as the first, omitting that the notes were unpaid and unsatisfied:  the 3rd described them as "notes for payment of money", 4th,  As securities for payment of money 5th As 76 pieces of paper value of 3£.

S. Stephen & Wentworth now moved for a new trial [p. 131] or to arrest Judgment on the points made on the trial Dr Wardell contra stopped.

Forbes CJ. and Dowling J. were clearly of opinion that there was nothing in the objections.  The [sic] resolved themselves into two; first that the property was not well laid nor proved as laid; and second that the property stolen was of no value, and consequently no larceny could have been committed of it, in as much as it was described in the 5th Count merely as pieces of paper.  As to the first objection; the 7 G 4. C. 64. s. 14 shews that the property is well laid in T. McVitie; the managing Director and others his partners.  Proof that Mr McVitie was a member of a Company trading as Bankers and that he was de facto managing director is sufficient, as against a wrongdoer, to sustain the indictment secondly by 7  G. 4. C 29. s. 54. if any person shall recover any chattel &c or others property whatsoever, the stealing where of shall amount to a felony &c.  If these pieces of paper had any value, depended upon the evidence whether they are of any value.

Resolved  That the local act relating to the [p. 132] Bank of Australia does not require to be proved in the same manner as a private act of Parliament at home and that the Judges of this Colony must take Judicial notice of it and

That the Court cannot listen to a motion for a new trial in cases of Felony or bear observations upon the evidence unless there is a case reserved for the Judges as to the legality of the conviction.

The prisoner and three other persons found guilty of like offences, were sentenced to be transported to a penal settlement for 7 years.


Forbes C.J. and Dowling J., 6 January 1829

Source: Australian, 9 January 1829[4 ]


The Attorney-General prayed judgment on the undernamed persons.

John Moorwood, James Lee, James Kelly, and Sarah Payne, were severally placed at the bar to receive judgment for receiving certain promissory notes, the property of Thomas McVitie, Esquire, and others his partners in the Bank Of Australia.  On behalf of the prisoner Sarah Payne, Mr. Sydney Stephen, her Counsel, moved an arrest of judgment upon several grounds; first, that Mrs. Payne was indicted upon an information containing several counts - the first five or six stating the property to be promissory notes belonging to Mr. Thomas McVitie and others, his partners &c., they being securities for the payment of monies due and unsatisfied; and the last, laying the property to exist in so many pieces of paper of the value of 5l.  Upon the occasion of this trial, the learned Counsel observed, different notes had been produced in evidence to substantiate the first charge; viz. that these several pieces of paper were notes on the Bank of Australia, which had been paid and satisfied, as was clear, in the legal acceptation of the term, and thence, worth nothing.  They were promissory notes of the Bank of Australia, signed by two Directors of the Bank, promising to pay to bearer, on demand, the sum specified in each of the respective notes.  Now, continued the learned Counsel, it so happened that the bearers of each of these notes, at the time the robbery took place, were Directors of the Bank - so then they were placed in such a situation as that they were made to pay to themselves the value of such notes as they actually held in possession at the time.  It would be impossible to multiply their wealth, by drawing promissory notes payable to themselves.  Those notes too, it is to be considered, were paid and satisfied; for on reference to Mr. Gardener's (the teller's) testsmony, it appears that the different notes, when paid in, and when determined that they should be destroyed, were entered in a book, and from that moment, considered as paid, and therefore destroyed.  To use the witness's own language, they were burnt by the candle.  All these notes deposed to in evidence, were notes of this especial character.  The witness only spoke to the mutilated notes which he put by, to be destroyed by the Directors, and that such notes were never again to be re-issued.  The witness, in entering on an explanation of this said, that when he saw notes of an old date, and fitting from wear to be put aside, he put them by for the inspection of the Directors, when these notes were submitted to them, and they were then destroyed. - These notes hen, continued the learned Counsel, had served the purposes for which they were originally put forth, and therefore there was an end of them.  So far for the promissory notes.  As far as respects the evidence as to the pieces of paper so described in the fifth count of the information, there appears to me to be another objection upon which I may safely venture an argument.  They are not described as pieces of stamped or printed paper, but merely pieces of paper of a certain value; and though an attempt was made by the learned Counsel on the other side, to get from the witnesses that these pieces of paper in question were really worth samething [sic], no one spoke but of this original cost of printing and the paper, which they stated to be worth from twopence to threepence each.  There must be the same degree of nicety in the valuation of the paper as there would be in an action of trespass or trover.  That is a well settled point of law.  Now in this case these notes are described as pieces of paper.  It might be as well contended, under the description of paper, an individual could be found guilty of stealing a picture, which is made valuable only as respects the engraving or printing, just as much as a piece of paper of the value of the picture.  It is the drawing itself which constitutes the value, not the paper, which is generically good for nothing.  The next objection I have to submit to your Honors is, that this act is a private act, and therefore ought to have been proved.  All public acts the Court will take judicial notice of; but private acts of Parliament require to be proved.  What is considered as a public act is what relates to trade in general - a private act that which has reference to a private and particular trade.  The Bank of Australia, it is known, belongs to a firm of individuals.  Any act relating to such an institution must then be of a private character, and as such required to be given in evidence.  Vide Phillip's 1 vol.  The Act was entitled an Act to enable the Bank Proprietors, or company under the name and sign of the Bank of Australia, to sue and be sued.  There was no clause in conclusion to make it a public act.  It is therefore a private act.  It has ever been contended whether or no the Bank of England was a private or public company.  How much more then may it be contended as respects a Bank of this country?  How can the Court take judicial cognizance of this act, it being a private act, and it not having been put in evidence?  On the ground then, first, that on the subject matter upon which this prosecution has been founded, not any larceny could be committed, therefore the rivet of the offence must fail; and with respect to the last count in the information, on which the subject matter of this prosecution exists, that must also fail, for want of regularity.  The learned Counsel then prayed the judgment should be arrested.

The Court overruled these objections.  Mr. Justice Dowling, who tried the case of the several prisoners, had previously overruled certain points but, at the request of Counsel, reserved them to be again mooted, when a fuller Bench should be established.  The learned Mr. Judge Dowling then addressing the person in whose behalf the above arguments had been raised, observed:-

You are to receive the judgment of the Court having been found guilty of feloniously receiving certain notes of the Bank of Australia, knowing the same to have been feloniously stolen, by a person or persons unknown.

The Jury by whom you were tried were pleased to recommend you to the merciful consideration of the Court, on the ground that you had previously borne a good character.

The recommendation of the Jury will in all cases have due weight with the Court, and in the present case the Court attending to that recommendation, feels itself authorised in averting from you the extreme severity of the law, in cases of this nature.

Your offence is one which the law justly regards in a heinous point of view, and punishes accordingly.  The Court deeply laments that a person in your decent and respectable condition of life, should have suffered yourself to be betrayed into the commission of so serious an offence.    Your condition and circumstances in life ought to have imposed upon you a higher sense of duty towards society, than that by which you seem to have been actuated.  Living in comfort, and placed above the temptations of want, you suffered yourself to descend to a violation of the law, without any one circumstance of palliation.  The hungry and miserable outcast, upon whom all sense of obligation to society is lost, may bedriven by circumstances from the paths of honesty.-  Towards such a person pity and compassion may be extended, on account of his moral degradation; but what sympathy can be felt towards one in whose case no such palliating circumstances are to be found.  The shameful and degraded situation in which you are now placed is a necessary and just consequence of the guilt into which you have been betrayed.  Having regard to your sex, your condition in life, and the respectable state from which you have fallen, the Court is willing to view your case with as much lenity as the interests of the public will excuse; but for the sake of example, and the consistency of justice, the Court is bound to mark its sense of your case with the like severity with which other similar offenders must be visited.  The Court taking all the circumstances of the case into its most serious consideration, and bearing in mind the merciful recommendation of the Jury, feels itself called upon to order and adjudge, that you, (naming the prisoner), be transported to such penal settlement as his Excellency the Governor shall direct and appoint, for the term of seven years.

There was a general feeling of sympathy for the prisoner, who is possessed of considerable personal attractions, and has heretofore moved in a respectable sphere at the conclusion of this judgment.

John Moorwood, James Lee, and James Kelly, were also severally sentenced to be transported for a term of seven years.



[1 ] The Sydney Gazette, 22 December 1828, indicates that this was the trial of Sarah Payne for receiving promissory notes of the Bank of Australia, stolen by persons unknown.  The trial took place on 18 December and concluded on the morning of the 19th.

Another woman involved in the bank robbery, apparently named Judamura Martin, was convicted before Forbes C.J.  He had doubts about her guilt and recommended on 2 October 1829 that the governor should pardon her: Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 245-246.

[2 ] This refers to Dowling J., on whose notebook this par of the report is based.

[3 ] This also refers to Dowling J., from whose notebook this part of the report of the proceedings is taken.

[4 ] See also Sydney Gazette, 8 January 1829; R. v. Kelly (No. 2), 1828; R. v. Lees, 1828.

Published by the Division of Law, Macquarie University