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

R v Brown (1831) NSW Sel Cas (Dowling) 26; [1831] NSWSupC 32

maltreatment of animal, crime - indictments, error in

Supreme Court of New South Wales

Dowling J., 30 May 1831

Source: Sydney Herald, 6 June 1831

Patrick Brown was indicted for cutting and stabbing two calves, the property of James Sheriff, at Bathurst, on the 25th December, 1830.

The second count laid the calves as the property of Sampson Stowell Ceeley.

The third count charged the prisoner with cutting and stabbing one calf the property of Thomas Cummings.

The prisoner endeavoured to set up, by way of defence, that the calves had been bitten by native dogs, but failed.

The learned Judge in summing up, observed, that the Act under which the prisoner was now tried, was the 7 and 8, Geo 4th, Chap. 30, sec. 16th, and that the present indictment did not contain one important word which was in the Act; namely, maliciously cutting and stabbing, which constituted the essence of the offence, this might however be raised by prisoner in arrest of judgment if necessary, he should not stop the case, but leave it to the Jury on the evidence adduced.  The Jury after a quarter of an hour's absence found the prisoner guilty, and he was remanded.


Forbes C.J., Stephen and Dowling JJ, 4 June 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[1 ]

[p. 75] [An indictment for unlawfully designedly and feloniously killing Calves is insufficient without charging the [p. 76] offence to have been committed maliciously.]

[p. 75]

Saturday 4 June 1831

Rex v Brown

CoramForbes CJ

Stephen J

Dowling J

The prisoner was tried and convicted before me[2 ] on an indictment charging him with "unlawfully, designedly & feloniously" killing two Calves &c against the 7 & 8 G. 4. C.30. s.16.  The indictment omitted the words "maliciously".  I thought this a [p. 76] fatal objection to the indictment in as much as it did not follow the words of the Statute, but it being insisted that the word "feloniously" implied "maliciously".  I saved the point and it being now mentioned in Court.  The Judges were of opinion that the objection was fatal.

Per Curiam  The Statute 7 & 8 G. 4. C. 30. s.16 being in pari materia with the Black Act, it must received the like construction.  Malice is the Gist of this offence whether against the owner of the Cattle or the Cattle themselves.  It is true that the words of the Statute 4 G 4. C. 54. are unlawfully and designedly but that statute being repealed and the words unlawfully & maliciously substituted in the 7 & 8 G. 4. C. 30. s.16 [p. 77] we think the omission of the word "Maliciously" in the present indictment is fatal in arrest of Judgment.[3 ]

Judgment arrested

NB.  The prisoner was not present during the Argument.

Moore for the Crown

Forster for the prisoner.


[1 ] See also Sydney Gazette, 7 June 1831; Sydney Herald, 13 June 1831; Australian, 10 June 1831.

[2 ] This refers to Dowling J., the author of this notebook.

[3 ] The same point was in issue in R. v. GriffinSydney Gazette, 27 August 1831; Australian, 2 September 1831.  Justice Dowling said that under the old Act it was necessary to prove malice against the owner of the cattle, and that was impossible to prove in many cases.  The new Act required proof of malice against either the beast or the owner.  In Griffin's case, the defendant was acquitted because the animal was dying in any event, and it may have been that the defendant knocked it on its head to put it out of pain.  If so, while that may have been against the orders of his master, it did not come within the scope of the indictment.  There was also no proof that the beast had been alive when struck, nor even that the defendant did the act.

Published by the Division of Law, Macquarie University