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

R v Kavenagh [1830] NSWSupC 76

women defendants in crime, burglary, mens rea, stealing, clothes

Supreme Court of New South Wales

Stephen J., 16 November 1830

Source: Sydney Gazette, 18 November 1830[1 ]

 

Mary Kavenagh was indicated for stealing a box contained several articles of wearing apparel, the property of William Wilson, in his dwelling house, at Parramatta; and also that being in the house at the time of committing the said felony she did, in the night time, burglariously break out of the same, contrary to the statute.

Elizabeth, wife of William Wilson, residing at Parramatta, said, I know the prisoner at the bar, she lived near my dwelling-house; on the night of the 16th October last, about 9 o'clock, she came into our house when my husband and I were at tea, and asked for some spirits; she appeared to be very much intoxicated; I told her we sold no spirits, but she refused to leave the house upon any entreaty, and lay down on the floor; being late, my husband said it would be a pity to turn the woman into the street in the state she then was in, and accordingly allowed her to remain; having no bed in the house, except that in which my husband and I slept, we laid the prisoner on it with ourselves, my husband having locked the bed-room door on the inside before we retired to rest and put the key in his trowsers' pocket; about 2 o'clock it the morning, I was awoke by the prisoner, who was up and standing by the bed-side; I did not hear her get up; she said the house had been robbed by two constables who were outside the door, and had a box with them; the box now produced is the same, and the property of my husband; it contained the several articles ennumerated in the information at the time I found it with the constables; I did not see the prisoner open the bed-room door, but no one else could have done it, as it was locked inside, and the key which my husband put in his pocket the night before had been taken out, and was in the door when the alarm was given; there are marks on the box as if some person had been trying to force it open, but nothing was taken out.

Mehan, a constable, stated that about two o'clock in the morning of the 16th of October, he was going his rounds, in company with another constable, when he heard a noise proceeding from the neighbourhood of the prosecutor's house, as if someone was knocking on a board; witness went to the spot whence the sound proceeded, and found the prisoner in the street kneeling beside the box now produced, as if she was endeavouring to open it; the prisoner was taken into custody and conveyed to the prosecutor's house, about 6 rods from where she was found; the door was open, and the prisoner, on arriving at it, immediately ran from the cnnstables into the house.

By the Court. - The day had not broken at this time; it was star-light, and I could see the features of the prisoner distinctly, when close to her.

Mrs. Wilson recalled and examined by the Court --- I never had any quarrel with the prisoner, nor do I owe her any grudge; I can't say with what intent she first came into my house, but from the deliberate manner in which she got up in the middle of the night, stole the key, opened the door, and carried off the box, I suspect that she was only counterfeiting drunkenness.

The prisoner stated in her defence, that Mrs. Wilson left her in care of the box while she was dressing herself to remove to some other place that night, and proceed on the following morning to Sydney, by the coach, in consequence of living unhappily with her husband.

The learned Judge summed up the evidence, and told the Jury, on reference to the Act of Parliament under which the information was framed, that the law, as in the case of burglary by breaking into a house, contemplated the intention of the party on entering.  If they were not satisfied that the intention of the prisoner, at the time she first entered the house, was to commit a felony therein, the offence of burglary could not be sustained, although, if they believed the evidence, she might be convicted of stealing.

The Jury found the prisoner not guilty of burglary, but guilty of larceny.  Remanded.

 

Notes

[1 ] The Supreme Court also decided that it is as much breaking and entering if someone in the house opened the door as if he or she used external violence to get in: R. v. Day and Mullen, Sydney Gazette, 23 February 1830; Australian, 24 February 1830. 

See also R. v. Edney and Lazarus, Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 273; Dowling, Proceedings of the Supreme Court, Vol. 30, Archives Office of New South Wales, 2/3213, p. 152.  The Select Cases version begins as follows: ``Where on the Trial of an indictment for housebreaking it appeared that the prosecutor had left a window open six inches without leaving room to admit the body of a man without raising the window and on his return found that his house had been [p. 274] robbed by entering a back door which was unlocked:- Held by all the Judges that if it had been necessary to raise the window to admit the body of the Thief this would be a constructive breaking to support the indictment."

Published by the Division of Law, Macquarie University