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

R. v. Power [1829] NSWSupC 67

burglary, dwelling house, meaning of "dwelling house" - death recorded - convict escape

Supreme Court of New South Wales

Dowling J., 2 October 1829

Source: Australian, 7 October 1829 

Before Mr. Justice Dowling, and seven military officers, two of them upon half pay,

William Power was indicted for a burglary in the dwelling house of Dr. Patrick Hill, of Liverpool, and stealing thereout sundry articles, the property of Jas. Moore, on the 29th September last.

From the evidence, it appeared that on the evening of the above day, a gardener who had been that day hired into the employment of the prosecutor, on returning to a bark hut situated in a garden, adjoining the dwelling house of the latter, discovered the roof to have been stripped during his absence, of a piece of bark, and the hut itself, where the gardener had arranged his bed previously for sleeping, to be minus of various articles.  Apprising two constables of the circumstance, all three proceeded to beat about the neighbouring bush, and in a short time fell in with a strange man, whom they made prisoner; a bundle happening to lay two yards from him, which the man said only contained little matters of his, but from which, on further search, the apprehending party contrived to extract a pair of trowsers, a razor, and an iron, all of which the gardener swore had been abstracted from prosecutor's hut, as already mentioned.

On behalf of the prisoner, it was contended by Counsel (Mr. Sydney Stephen) that the hut aforesaid was not the prosecutor's dwelling, and therefore admitting the other facts deposed to, the prisoner was entitled to his acquittal, seeing the indictment failed in setting out the fact of the case formally.

The learned Judge overruled the objection raised, inasmuch as the hut, to all intents and purposes, was used, or to be used, as a dwelling, by the act of the gardener removing and arranging his things for the purpose of sleeping there; and having summed up, the Commission, after retiring for about five minutes, returned into Court with a verdict of guilty.[1 ]


Upon this, the learned Judge directed sentence of death to be recorded against the prisoner, which amounts to transportation for life.[2 ]



[1 ] In R. v. Donohoe, Buckley and Culbert, Sydney Gazette, 15 November 1831, Forbes C.J. ruled that a person could have several dwelling houses, even if one of more of them was slept in only by a servant.  The indictment must state that the dwelling house was the property of  the owner, and not that of the servant or other person who lived there.  If this were not shown, the defendant could be guilty only of larceny, and not of the capital charge.  See also Australian, 18 November 1831; Sydney Herald, 21 November 1831.

[2 ] 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).

On 3 June 1829, Power escaped from the constables who were escorting him to gaol: Sydney Gazette, 11 June 1829.  He was convicted of larceny at the Windsor assizes or circuit of the Supreme Court on 10 August 1829, and sentenced to 12 months on the roads in irons: Sydney Gazette, 20 August 1829.

Published by the Division of Law, Macquarie University