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

R v Hopkins [1831] NSWSupC 53

convict escape, assisting

Supreme Court of New South Wales

Stephen J., 16 August 1831

Source: Australian, 19 August 1831[1 ]

Joseph Hopkins was indicted under section 34 of 9 Geo. 4, ch. 83, making the offence punishable by £500 and two years imprisonment, for compassing and abetting the escape of two prisoners of the Crown, from Sydney, in the Colony of New South Wales.  It appeared that the two men named as prisoners of the Crown, were apprehended in an endeavour to escape, and brought before the Parramatta Police Bench, when one of them, named Selden, denied positively that he defendant Hopkins was at all concerned in aiding the escape charged in the indictment, and was sentenced to be punished with 150 lashes; before sentence was passed on the other man, who said that for £6 the defendant had engaged to assist both in their escape from the Colony; Mr. Rowe, for the defendant, objected to the indictment as informal, inasmuch as it set forth that the defendant had assisted the man Selden and the other in an attempt to escape ``from Sydney, in the Colony of New South Wales," whereas the Act of Parliament made it only a Statuable offence, as an escape from New South Wales, and not from one part of the Colony to another; under which impression he conceived that the words should have been from Sydney, and out of the Colony of New South Wales, and that this objection alone ought to be fatal to the indictment.  But the learned Judged overruling the objection, Mr. Rowe then objected to the jurisdiction of the Court to try the case, inasmuch as he conceived it came within the provisions of a local Act; and if so, it would be for the jurisdiction of the Magistrates.  Besides, it was fairly to be presumed, that Selden, having denied before the Magistrates (whose conduct in forcing a confession, he, Mr. Rowe, thought deserving of marked reprehension,) that the defendant Hopkins was at all concerned in the attempt of him and his fellow prisoner to make their escape, and being punished with 150 lashes, that punishment was an intimidation to the other, that he would be served no better if he did not implicate Hopkins in the transaction as he had done; and therefore, that his evidence ought not to be taken as against Hopkins.  The defendant received an excellent character from gentlemen who had known him when waiter at Mrs. Walker's Inn, Parramatta, and also at Mr. Nash's, Parramatta.  The learned Judge summed up on the incompetency of the testimony received by the Magistrates, and the Jury, after retiring a few minutes returned into Court with a verdict of not guilty.

Notes

[1 ] See also Sydney Gazette, 18 August 1831.

Published by the Division of Law, Macquarie University