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

R v Moore and others (1831) NSW Sel Cas (Dowling) 335; [1831] NSWSupC 33

criminal procedure - indictments, error in - counties - Wollongong

Supreme Court of New South Wales

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

Source: Sydney Gazette, 7 June 1831[1 ]

Lawrence Moore, Richard Kite, David Kelly, and Anthony Connor, convicted of stealing in a dwelling-house, a person therein being put in bodily fear, were placed at the bar to receive sentence.

Mr. Therry rose and submitted to the Court, that an objection taken by him at the trial - namely that the proof did not correspond with the service laid in the information - was a valid objection, was taken in due time, and that the prisoners were entitled to an arrest of judgment.  The learned Judge, at the trial, drew a distinction between the Supreme Court of this colony and the Courts in England, and held, inasmuch as, England was divided into counties, town-ships, and parishes, and as the Judges of assize had there jurisdiction within their own boundaries only, it was necessary that thevenue should be strictly proved as laid in an indictment; but that here, the Judges, having a territorial jurisdiction, and the country not being partitioned off into regularly defined metes and boundaries, the whole colony was to be considered as one county, and that it was sufficient to show that an offence had been committed in the colony of New South Wales to bring it within the jurisdiction of the Court.  As a general proposition, he (Mr. Therry) admitted that, in this colony, it was sufficient, for the reasons stated by the learned Judge, to allege generally that an offence had been committed within the colony of New South Wales, - that such an allegation would be sufficient to bring it within the jurisdiction of the Court, and to support an information.  At the same time, he submitted with confidence, that where the Crown Officer condescended to describe a place, he must be bound by that description, and that if the proof offered by him on the trial did not correspond with the venue, as laid, that the information could not be sustained.  By the English law, he was aware that, in civil actions, very great nicety of proof, as to the locus in quo was not required.  In criminal prosecutions, also, there was a class of cases in which such distinct proof was not necessary; but there was also another class of cases - one of which that before the Court happened to be - wherein the slightest variance between the indictment and the evidence would be fatal; and, in favorem oitoe, he submitted that the same strictness of proof ought to be required in this colony.  The learned Counsel here called the attention of the Chief Justice to a case of arson, tried before His Honor at the last assizes at Windsor, in which he was Counsel for the prisoner.  A man was indicted for burning a barn, and the offence alleged to have been committed at Windsor, whereas the evidence went to show that the barn was situated at a place called Belmont, in the district of Richmond, which was only divided by a river from Windsor, still the learned Judge held the variance to be fatal, and arrested the judgment.  In the present case, the objection was precisely similar.  The offence charged against the prisoner was laid in the information to have been committed at Wallagora, while all the evidence went to show that the dwelling house wherein the robbery was perpetrated was situated at Illawarra, a distance of nearly five miles from the place stated in the information.  He felt most anxious in the result of this case, not only as respected the prisoners, but as it would decide a most material point in the administration of justice in this colony; and he had therefore, since the trial, been at the office of the Surveyor General, where he had obtained a map of the district of Illawarra, to the correctness of which Major Mitchell was ready to certify before the Court, whereby it appeared that Wallagora was a township situated five miles from the house wherein the robbery was proved to have been committed; that that house was without the boundaries of the township of Wallagora, at a greater distance than that between Richmond and Windsor; and, non constat, for any thing that appeared from the evidence, but Mr. Blaxland, whose house was alleged to have been robbed, had also a house at Wallagora.  For the sake, therefore, of consistency in the judgments of the Court, upon the authority of the case decided by the Chief Justice, at the Windsor assizes, and, in favour of life, he submitted most confidently that this objection ought to be equally fatal to the information before the Court.

Mr. Moore, in reply, contended that the case cited by the learned Counsel on the other side was not analogous to that before the Court, inasmuch as Windsor and Richmond, were as notoriously distinct as Sydney and Windsor, and the boundaries as clearly defined.  In this case Wallagora was a native name, which had been retained to designate a township, about five miles from where Mr. Blaxland's house was situated.  The district of Sydney extended over a very considerable tract of ground, although, no doubt, a number of places, having native names, were now included in the general designation of Sydney; and it did not follow but that Wallagora may yet extend all over the part of the country.  If the objection raised in this case were tenable, it would be impossible, in a wild, unsettled country like this, to know where such distinctions would end.

Mr. Therry said the learned Counsel's reasoning did not apply, inasmuch as, Illawara was the name of the district in which the township of Wallagora was situated.  Suppose an indictment charged a prisoners generally with stealing at Petersham, and that the evidence went to show that the offence was committed at Sydney, could it be supported?

The Chief Justice observed, that in the case cited by Mr. Therry, and which was tried before His Honor, the principle upon which he ruled was, that the distinction between the place laid in the information and that proved on the trial, was so well ascertained that to have rejected it, would have gone the length of doing away with descriptions of places altogether.  Belmont, where the offence was proved to have been committed, was not in an obscure part of the country; it was, in fact, the residence of the police magistrate of the district.  In the present case, the Court would take time to consider the point, as to whether the place was sufficiently designated to support the information, and, in the mean time, direct the prisoners to be remanded until such time as it should be prepared to deliver its opinion.

 

Forbes C.J., Stephen and Dowling JJ, 26 June 1831

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

[p. 67] An indictment for a house robbery & putting in fear laid the house at W and it was proved to be situate at 1. 4 miles from the former, in a part of the country where names of places were uncertain.  Held this sufficient to support the Indictment.

 

Source: Dowling, Proceedings of the Supreme Court of New South Wales, vol. 56, Archives Office of New South Wales, 2/3239

 [p.1]

Supreme Court.  N.S.W.

In Banco:-  Present

Forbes C.J.

Stephen J.

Dowling J.

Saturday 26th June 1831

[See vol. 53 p. 90]

Dowling J.

The prisoners were convicted before Dowling J. of larceny in the dwelling house of Gregory Blaxland, and putting one Thos. Maher therein being in bodily fear.  The indictment described the dwelling house as being situated in Wollongong in the Colony of New South Wales.  It was proved on the trial that the house was in fact situated in a large district of the colony known by the name of Illawarra, and between four and five miles from Wollongong - a military station within that district.  It was objected on the part of the prisoners that this was a fatal variance, [p. 2] for that the place in which the house was alleged to be situated being part of the local description, it must be strictly proved as laid.  For this position the practice of the Courts of Criminal law in England was cited, and a case of Arson, tried before His Honor the Chief Justice at Windsor January 1830 in which this position was acted upon, was relied upon as a decisive authority.  I over-ruled the objection, but saved the point for the consideration of all the judges.  When the prisoners (also had been found guilty), were brought up for judgement last Saturday the objection was brought under the consideration of the judges when the Court took time to advise upon it.

The correct mode of taking advantage of this objection was by demurrer to the indictment [p. 3] for the misdescription of the locus in quo, for by Mr. Peel's acts 7 G. 4. C. 64. S. 20. it could not avail the prisoners, if tenable, in arrest of judgement, inasmuch as by that act it is enacted "That no judgement upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default or otherwise shall be stayed or reserved for want of a proper or perfect venue, where the Court shall appear by the indictment or information to have had jurisdiction over the offence".  I should however be extremely unwilling to exclude a prisoner from the benefit of any well founded objection, although the mode of taking it was not strictly proper, & upon this ground I have applied my mind to the consideration of the objection.  [p. 4] At the trial the accuracy of the name of the place in which the house was laid, depended upon the lease evidence of one or two witnesses, and upon the evidence of the Surveyor General or any other public functionary having authority to give it a particular name.  If the counsel for the prosecution in a young country like this, (where there are yet no local subdivisions set out or accurately known) were to be found by the fanciful or arbitrary venues given either by the aboriginal natives or new settlers, many indictments of this class must fall to the ground, for these would be perpetually a content as a matter of evidence as to what was the true name of the locus in quo.  The reason for so much accuracy in the administration of justice in England, as to the proof of place, fails in this country.  The whole foundation of the reason there is the question of jurisdiction or no jurisdiction in the court called upon to try the offence.  [p. 5] There are other subordinate reasons for being certain as to locality, which do not obtain here.  In this country the Supreme Court has jurisdiction over the whole territory of New South Wales & its dependencies.  All therefore that is required is that there should be certainty to a "common intent".  Now a robbery in a dwelling house is no less an offence cognizable in the Supreme Court whether the house be locally situated in Wollongong or Illawarra, the one happening to the 3 or 4 miles from the other.  Locality of house therefore is not of the essence of the offence.  In highway robbery as it is popularly called, it is not, even at home, an essential matter to prove the place laid, so long as it within the jurisdiction of the Court.  The law regards the force & violence to the person on the highway.  So here the aggravation of the offence is the violence done to the person, only with this difference that it is done in the dwelling house; but if the house be locally situated within the jurisdiction of the Court, I apprehend it is not very material in what place the house is laid.  The true ground of any opinion is not in a young, partially settled country, where counties, parishes, and districts [p. 6] have no defined, well known miles & bounds, certainty to a common intent, is sufficient so long as the offence is proved to have been committed in a place in which the Supreme Court has jurisdiction.

Forbes CJ. where local description is of the essence of the offence, and the place in which it is committed has a well known & long settled name, any variance between its true name & that laid in the indictment would be fatal, not only in England, but in this country.  But where there is not this certainty & the name depends upon a fanciful unsettled notion about the name of the place, certainty to a common intent is sufficient.  These two witnesses said that Wollongong was abt 5 miles from the prosecutions house, but there was no proof of Illawarra, or that Wollongong had any precise limits or bounds.  It appears to me therefore that there was sufficient certainty in this case to support the judgement of the law -

Stephen J. concurred.

Judgement of death was passed & the prisoner was afterwards executed.

 

Forbes C.J., Stephen and Dowling JJ, 28 June 1831

Source: Sydney Gazette, 2 July 1831[2 ]

Lawrence Moore, Dennis Kelly Richard Kite, and Anthony Connor, convicted of stealing in a dwelling-house, a person therein being put in bodily fear, at Woolingong, being placed at the bar,

Mr. Therry rose to renew the objections taken by him on the trial, namely, that the evidence did not support the information; inasmuch as the dwelling-house wherein the offence charged against the prisoner was alleged to have been committed was laid as being situated at Woollingong, whereas all the testimony went to show that it was situated at Illawarra, a distance of five miles from the place set forth in the information.

The Court said it had fully considered the objection, and was prepared to dispose of the case.

The Chief Justice. - Prisoners at the bar, you have been convicted of breaking and entering the dwelling-house of one Gregory Blaxland, laid in the information as being situate at a place called Woolingong, in this Colony, and putting a person therein in bodily fear.  Your offence is capital; and before the learned judge who tried the case proceeds to pass the sentence of the law upon you, I will briefly advert to the arguments urged by your learned counsel against the judgment of the Court.  The objection is, that the place where the dwelling-house is alleged to be situated, did not correspond with the situation as proved in evidence on your trials.  The Court, after the fullest consideration, is of opinion, that that objection is not tenable.  True, by law, in certain cases, where the description form part of the offence, the Court requires that the evidence should sustain the information; and, in the Mother Country, where every place has a specific name, the utmost precision of proof is required.  The same principle we apply here, so far as we can; but where an offence is committed in the deserts of this country which have no given name, it is impossible to do more than describe the place with such sufficient certainty, that the party charged may know what he is called upon to answer.  We are of opinion, that, in this territory, it is impossible to fix places with names, until it shall have been located and defined, so as to admit of our descending to those niceties of proof; for in the interior districts of this wild and uncultivated country, there is hardly a spot to which each of several witnesses would not give a different name.  There is a wide distinction between laying an offence to have been committed at Sydney, and proving it to have been committed at Parramatta, and laying it at Parramatta, and proving it to have been committed at some place in the neighbourhood, which, although witnesses might designate it differently, still goes under the general name of Parramatta.  We are therefore of opinion, that this objection is not sufficient to prevent the judgment of the Court being passed upon you for the offences of which you have been severally convicted.

Mr. Justice Dowling then passed sentence of Death upon the prisoners, and warned them that, under the aggravated circumstances of the case, he could hold out no hope whatever that mercy would be extended to them.

Notes

[1 ] See also Sydney Herald, 13 June 1831; Australian, 10 June 1831.  See also R. v. Webber, 1831.

Moore, Kite, Kelly and Connor were executed on 18 July 1831: Australian, 22 July 1831.  TheAustralian hinted that the evidence against them was not fully convincing.

[2 ] This is presumably the same hearing as that in the previous extract.  The inconsistency in dates was quite common; newspapers and judges' notebooks often had the dates wrong.

Published by the Division of Law, Macquarie University