Skip to Content

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

R v Lucas and England (1831) NSW Sel Cas (Dowling) 312; [1831] NSWSupC 58

murder - Parramatta - indictments, error in - autrefois acquit - criminal procedure

Supreme Court of New South Wales

Dowling J., 7 September 1831

Source: Sydney Herald, 12 September 1831[1 ]


Thomas Lucas was indicted for the wilful murder of Charles Waterworth, at Parramatta, on the 20th of July, and John England as an accessary after the fact.

The Attorney General and Mr. Crown Solicitor Moore conducted the prosecution, and Dr. Wardell, Mr. Therry, and Mr. Rowe defended England.

The evidence having been gone through, which principally rested upon an approver, John Monaghan, and several witnesses having stated that the deceased was known to them by the name of Watersworth.  The Jury having retired for some time, came into Court and informed the Judge, that as there appeared a variance between the name of deceased as laid in the information, and that which he was known by the witnesses, they could not agree upon a verdict.  The learned Judge ordered the prisoners to be remanded, and a fresh indictment to be framed against them.

Forbes C.J., 9 and 12 September 1831

Source: Sydney Gazette, 17 September 1831[2 ]


(Before the Chief Justice.)

Thomas Lucas and John England, charged, the one as principal, and the other as accessory after the fact, in the murder of Robert Waterworth, being placed at the bar.

The Clerk of the Court proceeded to read the information, when he was interrupted by

Mr. Rowe, who enquired if that were the information upon which the prisoners had been already tried?

The Attorney General said it was the same information.

Dr. Wardell submitted that it was contrary to all practice, after a Jury had been discharged, to empanell [sic] a new Jury, and retry the prisoners upon the same information.

The learned Judge having taken a note of the facts of the case, as they occurred upon the former trial; the finding of the Jury, and their discharge, by consent of the Attorney General, said he was ready to hear such arguments as Counsel might have to offer against the present proceeding.

Mr. Rowe - The prisoners, may it please your Honor, state that, having already been arraigned and tried, they are not liable again to be arraigned and tried upon the same information.  A jury has been once charged with the prisoners on this information; and it is an established rule of law, that a Jury having been once so charged, particularly in a capital case, cannot be discharged without giving a verdict.  [Bacon's Abridgmenttitle ``Juries" G.]  In this case the Jurors who by the constitution of the Court in this Colony, are empanelled namely seven military officers, instead of twelve civilians indifferently chosen from among the people - continued during the whole of the trial till the evidence was gone through on both sides.  A preliminary issue was put to them by the learned Judge who presided, upon which they retired from the Court to deliberate; and, on their return into the box, stated, through their Foreman, that they could not find the issue so put to them - not that there was a difference of opinion among them, but that they could not arrive at any conclusion, one way or the other, on the question left for them to determine.  Upon this they were discharged without giving a verdict.  Now, I contend that it was incumbent upon the prosecutor to show that the name laid in the information was the right name, and not upon the prisoners to shew that it was not the right name,; and if, from any circumstance, he failed in so proving the name as laid, and that the Court and Jury were satisfied that it was not so proved, why then, I contend, according to all the authorities upon the subject, that the prisoners were entitled to an acquittal.  In no case has a Jury, after being once empanelled in a criminal case, been discharged without giving a verdict, except in consequence of an act of God, or in some extreme cases, by consent of the prisoner.  If a juror die in the course of a trial, or be taken so ill as to render it impossible for him to sit, the Court may empanel another juror, or discharge the Jury altogether.  If the prisoner take ill during the trial, the Court may discharge the Jury; but in no other cases than those of such extreme necessity, that no human foresight could guard against, can the Court discharge the Jury, without obtaining a verdict of guilty or not guilty.  In this case, the evidence was gone through on both sides - the Jury could not find the issue put to to [sic] them by the Court - they were discharged without the consent of the prisoners being had, or even asked - and, with the discharge of the Jury, I contend, the prisoners were discharged also, and cannot again be upon their trials, on the same information.  As I am to be followed by the two learned gentlemen who are with me in this case, I shall not take up the time of the Court by any further argument, and shall now briefly refer to a variety of decided cases on the subject.  The learned Counsel here cited several cases from the works of Mr. Justice Foster, Chitty, Leach, &c. and concluded by once more submitting, with confidence to the Court, that the prisoners could not be again arraigned on [t]he same information.

Mr. Therry said, there was no legal proposition of which he was more satisfied than this: - that no legal conviction of the prisoners at the bar could take place on the information on which they were arraigned, and called upon to plead.  The nature of the offence with which the prisoners stood charged was not now a legitimate topic of discussion; suffice it to say, that the information contained the charge of a capital felony.  To that charge they had pleaded not guilty.  Evidence at the former trial was fully fully [sic] heard - the case for the prosecution and for the defence had closed, and the Judge had actually charged the Jury on an issue, which he proposed as preliminary to the main issue of guilty or not guilty.  The Jury could not agree upon that preliminary issue, and the learned Judge who tried the case thereupon discharged the Jury, the Attorney-General consenting to their discharge; but no consent being either given by either of the prisoners, or of the Counsel on their behalf.  The question then was, could they be legally called upon to plead to the information, charging them with the same offence?  He confidently replied, they could not.  What said the authorities from the earliest to the latest time upon this point?  There was an uniform maintenance of the doctrine in accordance with the passage cited by Mr. Rowe from Chitty's Criminal Law, Vol. I. p. 630, ``That in order to let the prisoner into a ground of defence, which he could not otherwise have taken, before evidence given, the Court may by consent discharge the Jury, and that circumstance cannot bar any subsequent proceeding.  But it does not seem that without such consent, the prosecutor has any right to bring the defendant twice into peril of his life."  In support of this doctrine, Mr. Chitty referred to several decided cases, of which he would bring a few leading ones under the notice of the Court.  First, however, he would notice, that there was one, and only one passage, in a book of any considerable authority, adverse to the doctrine as laid down by Mr. Chitty, that book was, Lord Hale's Pleas of the Crown, which very passage was condemned by all subsequent writers on Criminal Laws.  In a note upon this passage, Mr. Sergeant Wilson, himself no mean authority as a Criminal lawyer, writes thus: ``The reason given for this practise, if it were law (which yet without the prisoner's consent is unwarranted by ancient usage) seems to hold as strongly in behalf of the prisoner as of the King: and yet I do not find any instance where a Jury once sworn was ever discharged because the prisoner's evidence was not ready; on the contrary, in Lord Russell's case, the Court refused to put off the trial until the afternoon of the same day, pretending they could not do it without the consent of the Attorney-General, although in that case the Jury were not sworn, and the prisoner urged that he had witnesses who could not be in town till night, in which case it certainly was in the discretion of the Court to put it off or not.  It hath however been since holden for law, that a Jury once charged in a capital case, cannot be discharged till they have given their verdict."  See Lord Delamere's case, and Rockwood's case, State Trials, Vol. IV. p. 659.  Great indeed would be the hardship upon the subject if a contrary doctrine were to prevail - if the Counsel for the Crown had the power, by his mere consent, to discharge a Jury once, why may he not exercise that power twice, or thrice, or ten times, and thus bring the prisoner's life into peril and jeopardy as often, and whenever he pleases?  When they come into Court, the prosecutor and the prisoner should be thenat least on equal terms; - the Crown Counsel have many advantages prior to trial - they alone are in possession of the depositions - they shape the information as they think proper, and the first knowledge that the prisoner has of the information against him is the moment that he is called upon to plead to it.  These surely were sufficient advantages without superadding any unnecessary, unusual, and illegal straining in favour of prerogative for the oppression of the prisoner, against which the humanity of British law has provided.  But to proceed - he would now advert to the invariable rule adhered to and upheld by a long stream of authorities from the earliest to the latest period upon this point.  It would be sufficient for this purpose to cite the following passage fromHawkin's Pleas of the Crown, Vol. II. p. 619, ``It seems to have been anciently an uncontroverted rule, and hath been allowed even by those of the contrary opinion to have been the general tradition of the law, that a Jury sworn and charged in a capital case, cannot be discharged without the prisoner's consent, till they have given a verdict."  Nothing can be more plain, intelligible, and conclusive than this, unless it be the judgment of Mr. Justice Foster; one of the first, perhaps the very first authority in matters of Criminal law, that ever adorned the Bench of English Justice.  In Sir John Wedderburn's case, the leading one upon this point, Mr. Justice Foster anticipates the character of the very case the Court has this day to deal with.  This case occurred in 1746, when the two Kinlochs were arraigned on a charge of high treason, for being engaged in the Scottish Rebellion; and the indictment had been opened on the part of the Crown, when the Chief Justice (Wills), before any evidence was given, told the prisoners' counsel that he was informed they had some objection to make in behalf of their clients grounded upon the Act of Union, which objection he said was proper to be mentioned before the counsel went into their evidence.  As the plea, which was one to the jurisdiction of the Court could not be made on the issue of ``not guilty," and be therefore proposed that a Juror should be withdrawn.  Accordingly, a Juror was withdrawn, and a new indictment was prefered [sic], whereupon the prisoners were tried and convicted.  But mark the difference between that case and the present - First, the discharge of the Jury took place, not merely by the consent of the Attorney General, but with the consent of the Attorney General backed by the motion of the prisoners' counsel.  Here, however, there was no motion of the prisoners, not any consent given by them.  Secondly, in Kinlochs' case, the discharge of the Jury took place before evidence was given.  Here however the discharge of the Jury took place after evidence on both sides had closed.  Thirdly, the discharge in Kinlochs' case took place in order to let the prisoners into a defence, which, in the opinion of the Court, they could not otherwise have been let into.  Here there was and could be no such object; for, wherefore should the prisoners desire a discharge, when, from their disagreement on a point, it was manifest a verdict of acquittal must be pronounced in their favour.  The Judge is presumed to be counsel for the prisoners, and it is upon this principle that Mr. Justice Foster justifies the propriety of the course adopted in the case of the Kinlochs, for, says he, - ``The discharging the Jury in this case was not a strain in favour of prerogative, it was not done to the prejudice of the prisoners; on the contrary, it was intended as a favour to them."  That great and eminent man (Mr. Justice Foster) anticipating as it were the events of this day, more immediately meets and disposes of the point which is the material one in this day's argument.  ``It is not now a question," he writes, ``nor I hope will it ever be a question again" (unfortunately however, his prediction was not verified, as it happens to be the very question now before the Court); ``whether in a capital case the Court may in their discretion, discharge a Jury after evidence given and concluded on the part of the Crown merely for want of sufficient evidence to convict, and in order to bring the prisoner to a second trial when the Crown may be better prepared."  This was done in the case of Whitbread and Fenwick, and it certainly was a most unjustifiable proceeding; I hope it will never be drawn into an example.  He would only trespass on the attention of the Court by citing one other passage from the judgment of the same eminent Judge; it pointed out the course which the learned Judge who tried the late case; he spoke with deference yet with confidence, should have pursued.  After propounding the question which he leaves undecided, ``whether the bare consent of the prisoner, unassisted by counsel, and consenting to his own prejudice, will render the Court quite blameless in discharging a Jury after evidence given on both sides?"  Mr. Justice Foster proceeds, ``The Jury (in the case of Mansel) were not agreed on any verdict at all, and therefore nothing remained to be done by the Court, but to send them back, and to keep them together, till they should agree to such verdict as the Court could have received and recorded; and the prisoner ought not to have been drawn into any consent at all; for in capital cases I think the Court is so far of counsel with the prisoner that it should not suffer him to consent to any thing manifestly wrong, and to his own prejudice."  After such quotations as he had cited from the best writers on criminal law, he felt it unnecessary to support them by any tedious and unnecessary process of argumentation, unless along-established principle of criminal law were set aside altogether, and unless a precedent - a most perilous precedent were to be set, whereby the Counsel for the Crown might at any time mend his hand, and come betterprepared when his prisoner was worse prepared, or perhaps altogether unprepared; unless, in short, it were intended that hereafter, it should be settled law, that the Crown prosecutor were to be empowered to put their lives in peril and jeopardy, as often as he pleased: unless all this, andmore than this, and worse than this were intended, he was satisfied the prisoners could not be called to plead to the present information.

Dr. Wardell said, - The case before the Court is not a novel case, in its chief features; and if there be anything which renders it different from a stream of decided cases, the difference is one which ought to press upon the mind of the Court in favour of the prisoners.  In all the cases which have already been cited, the Courts acted upon the general principle of law, that where a Jury has been once charged, they cannot be discharged without giving a verdict, except by consent of the prisoner.  Acting upon that rule of law, we also find a string of cases, which seem to form distinctions, but which distinctions, in fact, uphold the main principle.  If, by discharging a Jury and empanelling a new one, the prisoner stands indifferent as to his defence; or, if he be favoured and any way by the alteration, then, and only then, are exceptions allowed to prevail against the general rule; these exceptions also we find invariably arrising at a stage of the proceedings different from that in the present case, and when, in fact, the prisoner could not be prejudiced, and might be benefitted [sic].  In all the cases to which I allude, the reasons for empanelling new Juries, arose in the course of the trial, when the evidence had not been gone through, and when no opinion could have prevailed among the Jurors.  One of the excepted cases is, where a Juror or a witness should die, or be taken ill, pending the proceedings, and before the Jury has been charged by the Judge.  But where is there any case to be found, in which jury has been discharged on account of a difference of opinion existing among them, unless something of misconduct could be shewn on the part of the Jurors themselves?  In the present case, what was the decision of the Jurors?  They return no verdict, but they say they are agreed.  In what?  Why, to declare that they cannot find the prisoners guilty.  That is in fact, the amount of what they stated to the Court.  There was, then, but one alternative, and that, I submit, ought to have been pressed upon them - namely, that where a doubt arose, they should give the prisoners the benefit of that doubt.  Here was a doubt of the prisoners' guilt - such a doubt as to prevent the Jury from bringing in a verdict of guilty.  They could not find the prisoners guilty of the offence with which they were severally charged - namely of being principal and accessory in the murder of Robert Waterworth.  Then, if they could not find them guilty, what was the alternative - which, I contend, ought to have been pressed upon them by the Court - but to find them not guilty?  The Court could not even have asked the consent of the prisoners to the discharge of the Jury without giving a verdict, under such circumstances.  It would have been the duty of the Court to have protected them from giving any such consent; but even if this were one of those cases which have been taken out of the general rule of law, and in which the Jury might be discharged without giving a verdict, at all events the prisoners ought to have been asked for their consent.  Is not such a course of proceeding of every day occurrence - not in capital cases, but in the most trumpery cases of misdemeanour? - and shall it be held, that the law looks jealously upon the exercise of the power of the crown in cases of misdemeanour, but extends no protection to men charged with a capital felony?  I ask how that rule of law laid down in Hawkins, Foster, Chitty, Blackstone, and all writers of any authority on criminal law, that a Jury once sworn and charged with the prisoner, cannot be discharged without giving a verdict, except by consent of the prisoner, can ever be upheld in any case, if it be not allowed to prevail here?  There are exceptions to this rule; but upon what principle, except upon that which I have already urged to the Court?  The course pursued in this case may be taken when it is either favourable or indifferent to the party indicted.  I stand or fall on that authority.  Is it favourable or indifferent to the prisoners at the bar to undergo another trial?  I will suppose the possibility of a new Jury finding a verdict of guilty.  If so, will that principle of law be upheld, which only allows a new Jury to be empanelled in cases of favour or indifference to the prisoner?  But I contend that, in this case, there has been a virtual acquittal; and if the parties can now be tried again, I ask what defect in an indictment, however great, can be taken advantage of by a prisoner? or what predicament soever may not a crown officer extricate himself from, if a Jury can be found to say, ``We can't find that the property stolen belongs to A. B, thoug [sic] we can't find that it does not belong to A. B."  Here the proof did not satisfy the Jury that the offence was committed as laid in the information; and if a new trial were allowed in such a case, merely because the evidence fell short, in the estimation of the Jury, of what the prosecutor expected, there would be, I contend, an end of that rule of law by which a Jury cannot be discharged without giving a verdict, unless by consent of the prisoner, or in cases of indifference or favour towards him.  Here the Jury retired, they considered the evidence, and their opinion amounts to - what?  That it was not sufficiently strong to convict.  If not, it was their duty, under the direction of the Court, to acquit: they ought to have been ordered to return and reconsider their verdict, when they might have satisfied their minds as to which way that verdict should be given.  If they had even delivered a special verdict, it would have amounted to an acquittal.  Suppose their verdict had been that they could not find that the deceased man's name was Robert Waterworth, there must have been an acquittal.  But, in place of taking that virtual acquittal, what was done with reference to the prisoners?  The crown prosecutor steps in and says, ``As I am not able to convince the Jury that Robert Waterworth was slain, I suggest" or ``I order, that a Juror be withdrawn; that the Jury be discharged, and the prisoners be remanded.  I rule the destinies of the destinies of the prisoners, and order what course shall be adopted in this Court"!  This is, in fact, the language of the Attorney General in this case.  Circumstances, I admit, may arrise [sic] to compell [sic] a different line of acting from that which we would pursue, if we had the ordering of matters as we pleased.  Circumstances like these, however, are the exceptions, not the rule: but where no such casualties do arrise [sic] - where the party has been put in peril - where the evidence has been closed on both sides, and the case has gone to the Jury - I contend it is out of the power of the Court to order a new Jury to be empanelled, but that the Court is bound by the law; more especially in a case like this, where no difference of opinion existed amongst the Jury, (even admitting that one of their number holding out would be a reason for empanelling a new Jury) and a virtual verdict has been given.

The Attorney General replied at considerable length, and contended, on the authority of a number of cases, that the learned Judge who presided at the trial, had the power to discharge the Jury, without the consent of the prisoners, under the circumstances.  In this Colony, which had not yet been parcelled out into counties and other defined boundaries, and where, in the absence of Circuit Courts, the Judges were not itinerant, as in the Mother Country, those forms which were prescribed by law to be gone through before Juries could be discharged, for not agreeing on their verdict, were neither necessary, nor indeed, practicable.  The Judges of this Court had the power of adopting such laws, which were, in fact, but mere points of form adopted in the administration of Justice at home, to the circumstances of the Colony - a principle which had been upheld by the decision of the Court in a very recent case; he alluded to the case of the King against Dingle and others, for a robbery in the Bank of Australia.

Dr. Wardell replied

The Chief Justice - I have doubts - indeed something stronger than doubts - whether, the Jury having been once discharged, the prisoners can again be tried upon the same information.  At the same time, the point is not one so clearly settled as to enable me to decide it without some deliberation.  The question is one involving a sound principle of law, having for its foundation the protection of the subject; and the principle being laid in the law, I must regard it as coercive on my conscience, and come to a consideration of it, as if I sat with the Judges at Westminster Hall.  I cannot consider that I, sitting in this Court, possess any more power over the fundamental principles of the law than any of the Judges at home.  Awful, indeed, would it be, if His Majesty's distant subjects in this territory, were held to be subject to laws finding only on the consciences of the Judges, on which they, in their wisdom, might consider adapted to the circumstances, and condition of the Colony.  I, for one cannot believe that I am vested with any such power by the Act of Parliament.  I repeat, that I entertain great doubts with respect to this case; and the only question with me now is, whether, as a matter of convenience, it would be better to proceed with the trial, reserving the point for future consideration, with the assistance of my learned brethren, should I find it too much for me to decide alone, or to postpone the trial until I am prepared to deliver my opinion.

After some observations by Counsel on both sides, it was agreed to put off the trial to Monday next, at which time the learned Judge said he should be ready to give judgment upon the point raised.

The prisoners were then remanded.


MONDAY, 12th.

Shortly after the Chief Justice entered the Court this morning, his Honor asked the Attorney-General, if he had any business to proceed with, or whether he called for judgment in the case which stood over from Saturday last?

The Attorney General said he would not press for the opinion of the Court in that case.  He would withdraw the information for murder, and proceed against the prisoners for other and distinct offences.

The Chief Justice - Do I understand, Mr. Attorney-General, that you decline calling for the opinion of the Court in the case of the King against Thomas Lucas and John England?

The Attorney General - I withdraw that information, your Honor, and shall proceed against the prisoners on other charges.

Mr. Rowe contended, that the Attorney-General could not be permitted to sink the judgment of the Court in that way.  The prisoners' Counsel had attended to hear the opinion of the Court on a point of the utmost importance; and he submitted that the prisoners were entitled to call for that opinion.

Mr. Therry followed on the same side, and said it was not treating the Court with respect to attempt to get rid of an opinion which was called for after a solemn argument.

The learned Judge said, he could easily see why the Attorney-General, in the exercise of his discretion, might very properly decline calling for the judgment of the Court upon the point.  As the opinion which his Honor was about to pronounce, however, would perhaps clear the case of further argument, he would at once deliver it.

The prisoners having been placed at the bar,

The Chief Justice then delivered his opinion as follows:- The prisoners, Thomas Lucas and John England, were arraigned upon an information presented by His Majesty's Attorney General, on the 7th of this present month, and pleaded not guilty, and were immediately placed upon their trial.  The information charged Thomas Lucas, as principal, with the wilful murder of Robert Waterworth, and John England, as accessory after the fact, with receiving, comforting, and assisting the principal.  A Jury was duly empanelled and sworn to try the issue; the whole of the evidence, for and against the prosecution, was closed; but some doubt arising upon the evidence, whether the sirname [sic] of the deceased were Waterworth or Watersworth, the learned Judge who tried the case put it, as a preliminary issue, to the Jury to find whether the name of the deceased was Waterworth or Watersworth.  The Jury retired from the Court, and after some deliberation returned and said, by the mouth of their senior officer, that they could not find whether the name of the deceased was Waterworth or Watersworth: whereupon the learned Judge asked the Attorney General replied, that he would consent to a Juror being withdrawn; and the Jury were then discharged, and the prisoners remanded.  It is alleged that the prisoners were not asked whether they would consent to the discharge of the Jury, and that no consent to the discharge of the Jury, and that no consent was given by Lucas, the principal, who was unassisted by Counsel, nor by the Counsel for the accessory, England, to the discharge of the Jury.  On Friday, the 9th instant, the prisoners were again placed at the bar, and a new Jury was about to be sworn, when the prisoners objected tot heir being tried a second time upon the same information, upon the broad legal principle, that a Jury sworn and charged in a capital case, and the evidence closed, cannot be discharged, without the consent of the prisoners, until hey have given their verdict.  The learned Counsel for the prisoners were heard at length, in support of the objection; and the Attorney General was fully heard on the other side.  The point for me to determine was, whether I could proceed to swear a Jury upon the second trial.  I deferred ruling it then, because it was of the deepest importance to the prisoners; and I did not see my way so clearly through the case, as to enable me, upon the spur of the occasion, to determine how far my proceeding with the trial might not occasion some prejudice on the one side or the other.  I am now prepared to deliver my opinion, not upon the general question of law, however, as it may apply to the present case, but upon the course which it appears to me, on mature consideration, I am bound to pursue.  The law I take to be settled at the present day, that a Jury charged in a capital case cannot be discharged without giving their verdict, excepting only in cases of necessity.  It was formerly holden more strictly, and even necessity was not admitted as a sufficient ground to justify any departure from the inveterate principle of the law.  A variety of instances, however, may be cited from the books, in which it has been held that the principle must be taken with reference to circumstances; and inevitable necessity has been held to be sufficient to warrant the discharge of the Jury already charged with the prisoner, and swearing another Jury to try him upon the same, indictment, after evidence given.  Mr. Justice Foster, in his treatise on criminal law, has exhausted all the arguments upon the subject; and the leading cases of the King against Scalbert, in Leach C. C, 620.  I have carefully consulted the reported cases, and I find the result to be as it is comprehensively stated by Sir W. Blackstone(Commentaries, vol. 4. p. 360) in the following manner:- ``When the evidence on both sides is closed, and indeed when any evidence hath been given, the Jury cannot be discharged (unless in cases of evident necessity) till they have given in their verdict." - In the case of the King againstEdwards [5 Taunt. 309], the rule, as it is laid down by Blackstone, is referred to by Lord Ellenborough in terms of acquiescence; and I apprehend that it may now be considered as the settled text law upon the point.  But still the question of necessity is left undermined.  What are the circumstances which will amount to a case of ``evident necessity?  These, I apprehend, cannot be laid down a priori, but must depend upon the facts of the case, and should be left to the discretion of the Judge, at the time of the trial; - subject of course to the superior judgment of the Court, or the collective opinion of all the Judges, in case it should become necessary to have reference to them in any of the forms appointed by the law for obtaining their deliberate determination.  Now it appears that the learned Judge who tried the case saw occasion to discharge the Jury before they had given their verdict.  If the Judge conceived that the circumstances of the case before him required that course of proceeding, he had undoubted authority to discharge the Jury and remand the prisoners.  Sitting as I now do, I have no legal power to enter into any consideration of the grounds upon which his authority was exercised.  I am bound to assume that it was upon due and sound discretion.  As this case is now situated, I have no alternative but to proceed, if the Crown Officers press the case - leaving it open to the prisoners to take the future opinion of the Judges, if the case should require it.

The Attorney General rose, and said he would not proceed further on the information before the Court, but he had another to present against Lucas, for a distinct offence, which he should be ready to proceed with, and also a charge against England, with which he was not ready to proceed, but moved that he be remanded, which was ordered accordingly.[3 ]

After some delay, Mr. Moore intimated to the Court, that he should not be ready to proceed against Lucas till the following day, on account of the absence of witnesses.

The prisoner, Lucas, also stated that he was unprepared to take his trial in this case; several material and necessary witnesses for his defence being absent at a considerable distance from Sydney.

The Court directed that subpoenas should issue to such witnesses as the prisoner should name, and the trial was postponed, by consent of the Attorney General, till Friday next.


[1 ] The Sydney Gazette, 10 September 1831, reported this trial at greater length.  Evidence was led as to whether the deceased was known as Waterworth or Watersworth.  It appears that he answered to both names.  For Justice Dowling's notebook version of the trial, see Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 82; Proceedings of the Supreme Court, Vol. 58, p. 112, 2/3241.  In the former, Dowling summarised the point as follows: "Where an indictment charged the prisoner with the Murder of Robert Waterworth and it was proved that the name of the deceased was Watersworth the jury who could not decide what was his true name were discharged from giving any verdict."

An inaccurate name of a victim was also in issue in R. v. RobertsSydney Gazette, 3 and 6 September 1831; Sydney Herald, 5 September 1831; Australian, 9 September 1831.  The indictment named the victim as James Michael Roy, whereas he was in fact James Mickellroy.  Rowe, for the defendant, urged that this was fatal to the indictment, but Forbes C.J. disagreed.  He said that the "deceased was described with sufficient certainty to inform the prisoner of what he stood charged, and to enable him, had there been an acquittal, to plead the verdict in bar of another information."  (Source: Sydney Gazette, 6 September 1831.)  The Australian reported that Forbes said that  the ends of justice would be defeated were such quibbles as to name sufficient to allow a prisoner to be discharged.  None of the newspapers reported this judgment at length.  TheGazette and Australian said that the prisoner was hanged for murder.

[2 ] See also Sydney Herald, 12 and 19 September 1831; Australian, 9 and 16 September 1831.

[3 ] The Australian, 16 September 1831, noted that Lucas and England were to be arraigned on a charge of robbery, and continued as follows: "Mr. Justice Dowling's ruling in this case, has been the most anomalous we ever knew."

Lucas (together with John Moyland and Henry Knowles) was convicted of highway robbery, and sentenced to death: Sydney Herald, 19 September 1831; Australian, 23 September 1831.

Published by the Division of Law, Macquarie University