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

R v Rielly [1831] NSWSupC 79

stealing in dwelling house, defendant's house

Supreme Court of New South Wales

Forbes C.J., 15 November 1831

Source: Sydney Herald, 21 November 1831

John Rielly, and Hannah, his wife, were jointly indicted for stealing money, the property of Mary Williams, above the value of 5l., in the dwelling house of the said John Rielly, at Sydney, on the 22d of Oct.

Mr. Moore in opening the case remarked that the information was founded on the 12th clause of the 7th and 8th Geo. 4th, chap. 29th, which enacted that any person stealing in any dwelling house above the value of 5l. should suffer death as a felon.  Previous to the passing of this act, continued Mr. M., some doubts were entertained whether a party stealing in his own dwelling house, came within the meaning of the statute of 12th Ann, which then existed, it having been decided in the case of the King v. Thompson and McDaniels, that such goods were not entitled to the protection of a dwelling.  But it had been decided under the present statute in the case of the King v. Taylor, as reported in Collyer, 41 and 338, from Russel and Ryan, that where a man met another, and took him home to his own lodgings to sleep, and robbed him of his watch, that it came within the meaning of the statute.

Mr. Rowe in reply, contended that it was impossible for a party to commit a robbery to the amount of 5l. in his own dwelling house, so as to make it a capital offence.  As to the case quoted by Mr. Moore from Russell and Ryan, it related merely to the goods of lodgers guests, which were under the protection of a dwelling.  It was laid down in the text books of 1828, after the passing of the present act, that if a man steals goods of another in his own house, it is not within the statute.  The former act threw the clearest construction on the meaning of the present act, where it was held unanimously by the Judges, that the statute meant the house of another, 1 Leach, 329.  He conceived under these circumstances, he was not called upon to answer the capital part of the charge.

The Chief Justice said, that looking at the authority of Collyer, he could not see on what ground he deduced his interference; that what was applicable to the statute of Ann, could now no longer be tenable under the 7 and 8 Geo. 4th.  He thought Coliyer laboured under some misapprehension as to the force of the cases he quoted; and he considered the justice of the cases would be best met by his at once ruling that this was a case in which the parties could not be capitally convicted under the statute.  He would put the case to the Jury, merely as one of simple larceny.  The prisoners were found guilty of larceny, and remanded.[1 ]

Notes

[1 ] John Reilley [sic] was sentenced to imprisonment for 12 months, and Hannah to 6 months:Sydney Herald, 21 November 1831; and see Sydney Gazette, 22 November 1831 (spelling the name Riley), and Australian, 25 November 1831 (Reilley).

The same point of law was in issue later in 1831.  In R. v. ThompsonSydney Gazette, 24 November 1831 (and see Australian, 2 December 1831; Sydney Herald, 28 November 1831), Rowe, for the defendant, argued that a man who stole within his own house, or a woman in her husband's house, did not fall within the statute.  Justice Dowling agreed, saying that under the statute of Ann, and under the 7th and 8th George IV, only persons having no authority over the house could be liable.  This was also reported in Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 92, which begins as follows: ``An Indictment will not lie, on the Statute against a man for stealing goods in his own dwelling house the property of a person who had left them in his charge."

Published by the Division of Law, Macquarie University