Skip to Content

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

R v McAlister and Fordham [1831] NSWSupC 77

highway robbery, difference from larceny

Supreme Court of New South Wales

Stephen J., 8 November 1831

Source: Sydney Herald, 5 December 1831[1 ]

Alexander McAlister and George Fordham, convicted of a highway robbery.  Mr. Rowe, in arrest of judgment, contended on behalf of the prisoners, that highway robbery consisted in violently taking from the person against the consent of the owner; putting in fear; or a struggle between the parties for the possession of the property; not as in this case, where the property was taken without the knowledge of the owner, it amounted merely to a larceny.  In various cases reported in Russell and Ryan, this point was decided - the King v. Battege, for stealing an ear-ring from the ear of a lady, as she was coming out of the opera, by tearing the ear through, although the ear-ring was afterwards found in the lady's hair, was held to be violence in law; also, the case of Mason, where the watch was drawn out of a gentlemen's pocket, which was secured round his neck by a steel chain - a struggle ensued, this was held to be a highway robbery; the case of the King v. Davis, alias Beard, for taking a sword from a gentleman, when they struggled, held also to be violence within the statute.  In the present case, the prosecutor acknowledged the ribbon was cut, and the watch taken away simultaneously, in law, therefore, it amounted merely to a larceny.

Mr. Moore in reply, contended that violence had been fully proved by the cutting of the ribbon.

Judge Stephen was satisfied a case of highway robbery had been clearly established.  A petition had been presented to him from Mr. Mansfield, and signed by 24 other persons, which would doubtless have due effect in the proper quarter.  The sentence of death was then passed upon them.

Notes

[1 ] For brief accounts of the trial, see Sydney Herald, 28 November 1831; Australian, 2 December 1831.  For commentary, see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, p. 203.

Published by the Division of Law, Macquarie University