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

R v Kelly (1831) NSW Sel Cas (Dowling) 224; [1831] NSWSupC 72

transportation, of native born people - pardons, minimum service before - ticket of leave, minimum sentence before - sentencing discretion, alteration of sentence - Crown mercy - habeas corpus

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 October 1831

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

[p. 109] [A Native free person is liable to Transportation to a penal settlement for any offence which a subject in England is liable to be transported to New South Wales, and the Court after the Session is over in which the party is [p. 110] convicted has no authority to alter the sentence even supposing it to be illegal.]

[p. 109]

Saturday 29th October 1831

Forbes CJ

CoramStephen J

Dowling J

Rex v Kelly

The prisoner had been convicted before Dowling J of receiving stolen notes and was afterwards transported for 14 years to a penal settlement.

Wright now moved for a habeas corpus to bring the prisoner up from the penal settlement of Moreton Bay for the purpose of being discharged on the ground that he being a free subject at the time of his conviction he was not liable to be transported, but only imprisoned consequently that his sentence was illegal and void[1 ]   Local ordinances 7 G 4th. No 5.16. August 1826.

[p. 110] Forbes CJ.  I have no doubt of the power of the Court to award a sentence of transportation upon the receiver of stolen property whether he be free or bond.  That is the sentence of the law which may be carried into effect by the executive authority representing His Majesty.  There is no complaint here of any accumulation of punishment upon the prisoner for the offence of which he has been convicted such as working him in irons or imposing upon him any excess of severity to which no other prisoner of the Crown may be subjected was to authorize us in granting a writ of Habeas Corpus a remedy however which has been very sparingly exercised by this Court in such cases, for reasons to obvious to need recapitulation.  If there are any meritorious circumstances in the prisoners case the proper mode of [p. 111] obtaining is by petition to the Governor but this Court has now no authority after the lapse of nearly 3 years to alter a sentence pronounced agreeably to law   Stephen J was of the same opinion.

Dowling J the point now submitted to our consideration came under the solemn judgment of the Court on the 2nd March 1829 in the case of the King v Baxter[2 ] (See Vol 14. p. 116 in which the point was fully considered) in which the Court held that they had no authority to afford relief in such a case as the present.

Writ Refused


[1 ] The Australian, 14 October 1831 reported the following about a hearing before Forbes C.J. and Stephen J. on 8 October 1831: "Mr. Wright gave notice of his intention to move on the Saturday following (to-morrow, 14th inst.) for the copy of a conviction under which one James Kelly had been transported to Moreton Bay, to ground arguments on for shewing the illegality of the punishment, inasmuch as persons coming originally into the Colony free, could not be transported to a penal settlement for a first offence."

The Australian, 21 December 1832, published (1832) 2 and 3 Wm IV c. 62, an imperial statute further restricting capital punishment in crimes concerning property.  Instead of being condemned to death, prisoners were to be sentenced to transportation for life.  Section 2 provided that the governor of the colony was not to give any pardon or ticket of leave to transported prisoners unless they had served a minimum period of transportation.  The qualification periods were 4 years for those sentenced to 7 years transportation; 6 years for 14 year sentences; and 8 years for those transported for life.  See also (1830) 1 Wm 4 c. 39 (Sydney Gazette, 1 March 1831).

[2 ] See R. v. Baxter, 1829.

Published by the Division of Law, Macquarie University