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

R v Shelvey and Champion (1830) NSW Sel Cas (Dowling) 299; [1830] NSWSupC 1

burglary, elements of, burglary, dwelling house, meaning of "dwelling house", criminal prosecutions, right to counsel

Supreme Court of New South Wales

Stephen J., 22 January 1830[1 ]

Source: Sydney Gazette, 30 January 1830


J. Champion, J. Shelvey, and W. Yates, were indicted for stealing a large quantity of property, consisting of 401bs. of soap, half a chest of tea, 30 lbs. of sugar, a quantity of leather, tobacco, a cheese, a bag, &c. The indictment charged them with having burglariously entered a store in the dwelling-house of Mr. Atkinson, at Sutton Forest, on the night of the 17th of August, and stolen the above articles therefrom on that occasion.

Mr. Therry and Mr. Rowe conducted the defence.

Patrick Brady, an approver, gave evidence against the prisoner; he stated that Champion and Shelvey had agreed with him to steal the property from the stores of Mr. Atkinson, on the 18th of August; they were to meet at night and go together to effect the robbery. He (Brady) accompanied the prisoners, Yeates and Champion, to the house; on their arrival they found Shelvey inside the stores; he had effected an entry before they came up contrary to their expectation. The witness proceeded to detail the manner in which the property was removed from the stores of Mr. Atkinson to Champion's house; part of it was conveyed by the prisoners at the bar and himself, and part of it was put upon a horse and taken there; the further examination of this witness went to show how the property removed to Champion's had been placed in the house and disposed of; it appeared the tobacco had been destroyed, and the other property placed in different parts of Champion's house.

Cross-examined by Mr. Rowe  You state that Shelvey had entered the store before you, Champion, and Yeates cameup?

Witness  Yes.

Mr. Rowe  That was contrary to your expectation, was it not?

Witness  It was.

Mr. Rowe  I submit, your Honor, that there must be an end of the case, and that there must be an acquittal, at least as far as regards two of the prisoners; by the evidence of the approver, Yeates and Champion came up after an entry had been effected, so that they cannot be found guilty of the burglary, as to constitute the crime of burglary, the presence of the parties is necessary. It appears they were not present, and therefore cannot be indicted as principal felons.

Mr. Justice STEPHEN said, if not really present, they were constructively present. They had agreed to commit a crime, and went to the place to commit it, and did aid in its commission.

Mr. Rowe  Suppose a man agrees with another to commit a burglary at seven o'clock in the morning, and that other man commits it at seven o'clock in the evening before, the man who made the agreement, and had no knowledge or participation in the burglary committed in the evening, cannot surely be indicted as a principal felon for that offence. Here an entry had been made before the prisoners are alleged to have come up, and contrary to the expectation of the approver and the other prisoners.

Mr. Justice STEPHEN said, he would not conclude the case on that point; he would allow the evidence to be gone into; he would however reserve the point for further consideration.

In the further cross-examination of the witness, he stated that he had received no promise or reward from Mr. Atkinson, nor had he any communication with him on the subject of the nature of the evidence he was to give to-day.

Mr. Atkinson was next called, and on being requested to describe the situation of the store in which the burglary took place, described it as adjoining his dwelling-house; it was attached to it, being under the same roof, but there was no dwelling-house, and it could only be approached from the dwelling-house by an open verandah.

Mr. Rowe submitted to the Court that this store did not answer the description of a house in which a burglary could be committed; it was neither the dwelling-house nor part of the dwelling-house; there could be no communication between it and the dwelling-house, except by an open verandah, whereas the statute enacts, "that no building, although within the same curtilage with the dwelling-house, shall be deemed to be part of such dwelling-house, for the purposes of burglary, or for any of the purposes aforesaid, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and enclosed passage."

Mr. Therry followed on the same side, and contended that unless an open verandah could be regarded as an enclosed passage, this store did not correspond with the description of tenement in which a burglary could be committed. There was "no immediate communication" between the store and the dwelling-house, for there was no door opening from the store into the dwelling-house; neither was there an inclosed [sic] communication. On the contrary, an uninclosed [sic] passage was the only one between them. A most strained construction must indeed be resorted to in order to denominate an open verandah an inclosed [sic] passage.

Mr. JUSTICE STEPHEN, as at present advised, said he was of opinion that the store was to be regarded as part of the dwelling-house; he would however reserve the point for further consideration, and continue the case.

Mr. Atkinson was then examined as to his identification of the property. Soap, sugar, cheese, tobacco, &c. were stolen from his store; these he identified on the premises of Champion.

Cross examined by Mr. Therry.  He went to the house of Champion on the day after the robbery, and had an opportunity of inspecting the soap, tea, &c. but he did not then claim them as his property; he could not then identify them. After Brady had informed him of the robbery, he went again to the house of Champion, and then claimed and identified the property that had been stolen from him; he gave it in charge to the constable; he knows that Champion is a dealer in the articles of tea, soap, &c.; he made no promise to Brady, but had some conversation with him on this business last Saturday,

Several witnesses were called on behalf of the prisoners, who stated, that on the night of the alleged robbery the prisoners were at the house of Champion the whole night, and that they were not out of the house from sun-set until the following morning. It was further stated, that the prisoner Champion was a dealer in tea, sugar, soap, &c. and that the quantity found on his premises far exceeded the quantity claimed by Mr. Atkinson. The bag which Mr. Atkinson said he had seen in his store a few days previous to the robbery was stated to have been given to the prisoner by the approver, Brady; and it was further alleged to have been in the possession of Champion several days before the robbery. The carrier, who took the things for Champion from Sydney, proved the delivery of them at the house where Champion then resided, and their subsequent removal to the house occupied by him when the property of Mr. Atkinson was stolen.

Mr. Justice STEPHEN charged the Jury. His Honor recapitulated the evidence, and said the question was entirely one for the consideration of the Jury. If they believed the approver, with the circumstances of corroboration furnished by Mr. Atkinson's testimony they would find the prisoners guilty; if not, they would, in the event of doubt, give them the benefit of such doubt, and acquit them.

The Jury retired, and after some deliberation, gave a verdict of Guilty.  Death recorded.

Mr. Atkinson recommended Yeates to mercy on account of his youth, and being and assigned servant to Champion, and the likelihood of his acting under his influence.

At the request of Counsel, the learned Judge said that the sentence would not be carried into execution without the prisoner, having the benefit of the further consideration of the points urged in their behalf.


Forbes C.J. and Dowling J., 6 March 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[p. 282]

[After the conviction and Judgment in Felony the prisoners Counsel cannot claim as of right to be heard before all the Judges against the validity of the conviction.][2 ]

Saturday 6th March 1830


Present Forbes CJ.

 Dowling J.

Rex v Shelvey & Champion

The prisoner had been tried convicted and had received Judgment of death before Stephen J. at the last Campbelltown Circuit Court on a charge of Burglary.  After the business of the Court was over the prisoners presented a petition to the Governor to respite the Execution until certain Legal objections were farther considered this petition was transmitted by the Governor to the Judge for consideration.

The prisoners were now brought to the bar, and their Counsel demanded as of right to be heard in support of the objections, and cited the case of the King v Fauntleroy as a precedent   Forbes CJ. with the concurrence of Dowling J. however ruled that after the trial was over sentence passed and the Circuit Court adjourned; [p. 283] Counsel had no right to be heard  If the Judge, who tried the case had any doubt or difficulty upon any point, arising at the trial, the course was to submit it to the consideration of his bretheren [sic], and if they desired to hear counsel counsel might be heard or the Judges would take cognizance of a petition for that purpose; which was the course adopted in Fauntleroy's case; but no right existed of the kind claimed.  If in this case the Judges desired to have the case argued by counsel they would take order accordingly in their own discretion.

Therry & Rowe for the prisoners. ...[3 ]

 [p. 287]

Rex v Champion and ors

A store room, parcel of a dwelling house, but without any internal communication with the sleeping apartments is not a building in which Burglary can be committed.  Semble under 7 & 8 G  4. C. 29. s. 13.



[1 ] This trial was held in Campbelltown, one of the first Supreme Court trials outside Sydney. For a book concerning this case, see Peter Hinds, The Campbelltown Convicts,  MoshPit Publishing, 2013.

[2 ] See also Australian, 10 March 1830.

[3 ] The notebook then continued with other cases.

Published by the Division of Law, Macquarie University