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

R v Stewart (1831) NSW Sel Cas (Dowling) 302; [1831] NSWSupC 31

bail - criminal procedure, delays - New Zealand, encouraging war in - murder - gaol delivery - Darling, Governor, attitude to Crown law officers - Aborigines, killing of - Aboriginal law, recognition of - Supreme Court, jurisdiction over New Zealand

Supreme Court of New South Wales

Stephen J., 23 May 1831

Source: Sydney Herald, 30 May 1831[1 ]

Dr. Wardell then rose, and moved that the recognizances in the case of the King v. Stewart be discharged.  In making this motion the learned Doctor remarked, that on Saturday[2 ] the Crown prosecutor had stated in open Court his intention of abandoning the more serious part of the charge, and merely proceeding against the defendant for a misdemeanor, but a few hours afterwards he received information that the capital part of the charge would still be preferred; such vacillation he considered extremely unjust to his client, who, although not actually within the gaol walls, was confined within a larger description of gaol, as he could not leave Colony, to which his usual avocations called him, being held to bail in the sum of £2000.  He now moved that these recognizances might be discharged, as it was expressly understood, and stated by the Chief Justice on Saturday, that the case, if it did come on Monday, was to be abandoned.

Mr. Moore, together with Mr. Therry, in reply, observed, that the Attorney-General, in virtue of his office, was not obliged to bring any case on till the last day of the term, being considered in law but one day.

Judge Stephen in giving his opinion on the motion, remarked, that the Attorney-General had no power to forego a prosecution for murder, nothing but the verdict of a Jury could absolve a prisoner from such a charge; he, therefore, considered some mistake must have arisen as to the interpretation of the opinion given by the Chief Justice on that point; he, however, was not fully acquainted with the subject, but as far as he had yet heard, no sufficient reason had been assigned to call for him to discharge the recognizances.  -  Motion refused.

Forbes C.J., Stephen and Dowling JJ, 1 June 1831

Source: Sydney Herald, 6 June 1831[3 ]

In the matter of King v. Stewart. - Dr. Wardell moved on affidavits, that the recognizances entered into by defendant be discharged, and that he be allowed to enter into personal securities.  In making this motion; the learned Doctor read part of Captain Stewart's affidavit, explaining to the Court the merits of the case, and by which it appeared that defendants vessel was chartered by Cooper and Street to proceed to New Zealand, of which Cowell was supercargo, defendant merely navigating the vessel; that he conveyed in the vessel from one part of New Zealand a certain chief and warriors, to the dominions of another tribe, on whom they made war, according to the customs of the country, but against the consent of the defendant; and that the object of the war was to procure a certain description of stone, which was not to be obtained in the hostile chief's dominion, further, that defendant had in attendance evidence sufficient to rebut the statements made against him, had the trial come on on [sic] the day in question, but that the witnesses had now left the Colony.  After a few more remarks on the injustice done defendant in the public journals, Dr. Wardell concluded by observing, that unless the Crown Officer could state that some serious charge of murder was to be brought against the defendant, he ought to be discharged from his recognizances.

Mr. Moore, in reply, could not see that Dr. W. had made out a sufficient ground on which to discharge the recognizances; there was an information on the files of the Court for murder, and defendant was held on the recognizances to answer it; although a considerable body of evidence had been taken, yet it had become necessary to obtain further evidence.  As to the understanding that he intended to waive proceedings, it was an error, he never imagined such a thing no noli prosequi had been entered into, or had he waived at the time of the recognizances.  He would submit that defendant was not entitled to move to be discharged, until it could be ascertained whether there was or not more evidence on which the Crown Officers could proceed, he wished to submit to the Court the depositions taken in the case, on which for their Honors to form and opinion.

The Chief Justice in delivering the opinion of the Court, observed, they would look into the motion; and in order to assist them in determining aright, they would like to look into the depositions, if they were such things that they could deal with, for before interposing in the case, they would like to know on what ground they did so.

The Court was one of the gaol delivery, and in its province, at the end of the month preceding Term, if any prisoner stated that he had been ready for trial, it was in the course of practice to liberate him, and the present case appeared to be one of that description.  As at present advised, this case was after the ordinary period, for gaol delivery had expired; but before they proceeded to discharge the recognizances, they would look into the depositions, to make up their minds what the justice of the case required. - They would deliver their opinion on Saturday.


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

Source: Sydney Herald, 13 June 1831[4 ]


Saturday, June 4. - The three Judges having taken their seats, the Chief Justice gave it, as the judgment of the Court, in the case of the King v. Stewart, that they were not in a situation to afford the relief sought, until the 15th instant, according to the rules of Court.  -  Application refused.


Dowling J., 20 June 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[5 ]

[p. 66] [Where a defendant had been held to Bail to appear in the Court and be attended during the whole of a session without any charge against him being prosecuted discharged his bail but the charge on which he had been held to Bail being very serious the Court ordered him to enter into his personal recognizance to come up when called upon.]

Monday 20 June 1831

Coram Dowling J

Rex v George Stewart

I[6 ] asked the acting Attorney General if he had anything to allege why the Defendants original recognizance should not be discharged and why the defendant should not now be discharged on his personal recognizance to appear when called upon. 

Mr Moore acting Attorney general said he had nothing to allege and no objection to make.

Dowling J. ordered the defendants recognizances himself in £1000 and two sureties in £250 each to be discharged, and that he do enter into his personal recognizance in the sum of £1000 to appear when called upon.


[1 ] See also Australian, 27 May 1831.

Governor Darling explained this case to Viscount Goderich as follows (10 October 1831,Historical Records of Australia, Series 1, Vol. 16, p. 405): ``Stewart was the Master of the Elizabeth, whose inhuman and atrocious Conduct at New Zealand has been reported to Your Lordship, and cannot easily be forgotten.  The case was put into Mr. [Solicitor General] Moore's hands, as Your Lordship will perceive by the Minute of Council, transmitted with my Despatch of the 13th April last, No. 37, and, though repeatedly urged to proceed, he delayed doing so until the Witnesses for the Prosecution and others, implicated in the transaction which took place at New Zealand, had effected their escape from the Colony.  If I am correctly informed, Mr. Moore was in possession of a Bench Warrant for taking all the Parties concerned into Custody, on a Saturday (the date is not important) which he was urged to have immediately carried into effect.  It was not, however, put in possession of the Police, until the Monday following, the Parties and Witnesses having, in the meantime, all disappeared, with the Exception of Stewart, the Master, who was bound under recognizances to stand his trial.  The trial was, in consequence of the absence of the Witnesses, abandoned for the time, and it has been stated to the Colonial Secretary by Lieutenant Macdonnell, Royal Navy, Commanding the Ship, Sir G. Murray, that Stewart himself has just now left the Colony, as advised by Mr. Wentworth; the circumstances attending the Murder of Marrannui being much more horrible than were at first reported."  A chart on p. 407 notes that the murder prosecution of Stewart was abandoned.

Goderich replied (to the new Governor, Bourke) on 31 January 1832 (Historical Records of Australia, Series 1, Vol. 16, pp 510-513).  He was concerned the Maoris would soon fall sacrifice to their intercourse with what he called ``civilized Men" through the inflamation of the Maoris' passions against one another.  He approved of the appointment of a Resident in New Zealand, and recommended the sending of naval vessels there.  He was explicitly concerned that while necessity might justify actions taken by the Resident, ``they cannot be strictly defended as legal."  If the Maori had ``any established system of Jurisprudence among them, however rude, their own Courts would claim and be entitled to the cognizance of all crimes committed within their territory."  (P. 512.)  He went on to say that there should be an Act to suppress the traffic in human heads, in both New South Wales and Van Diemen's Land.  Finally, he returned to the Stewart case, and to the opinion of Moore, the Crown Solicitor, which he described as ``not very intelligible" (p. 512).  According to Goderich, Moore appeared to say that the Maori had been engaged in legitimate warfare according to the usages of their own country, and so could not with justice or propriety be charged with murder.  Thus, Moore's argument ran, the Master and Crew could not be charged as accessories to murder, because the guilt of the principal was essential to the guilt of the accessory.  Goderich felt that even if this were true, they could be charged under the Foreign Enlistment Act.  Stewart was charged with murder, Goderich said, and then according to Moore, admitted to bail by Moore, rather than a magistrate.  This was improper, both because a prosecutor should not do that, and bail should not have been granted for such a serious offence.  The whole prosecution, Goderich concluded, had been ``conducted in an inefficient and discreditable manner."

Goderich also wrote to Bourke on 28 May 1832 enclosing further correspondence on the case (Historical Records of Australia, Series 1, Vol. 16, pp 650-655).  The Crown Law Officers' view was that Stewart and Clements (the mate) should be tried as accessories before the fact of the murder of Mara Nui and his wife, if not the whole of the tribe that was massacred.  By ss 3 and 4 of 9 Geo. 4 c. 83, the Supreme Courts of New South Wales and Van Diemen's Land both had jurisdiction over events taking place in New Zealand.  Goderich told Bourke that he should attempt to capture and try them.

On the law's limits over New Zealand, see Goderich to Bourke, 14 June 1832, Historical Records of Australia, Series 1, Vol. 16, pp 662-665, announcing that James Busby had been appointed as Resident in New Zealand.  Part of the aim of the appointment was to ``repress the outrages, which unhappily British Subjects are found so often to perpetrate against the persons and property of the Natives and the peace of Society in those Regions."  Before this appointment, there was no means of compelling offenders or witnesses to travel to New South Wales.  This change was precipitated by the unsatisfactory outcome of R. v. Stewart, 1831.

[2 ] See Australian, 27 May 1831.

[3 ] See also Australian, 3 June 1831; Sydney Gazette, 4 June 1831.

[4 ] See also Sydney Gazette, 7 June 1831; Australian, 10 June 1831: the significance of the 15th was that it was the date of termination of the criminal sessions, and the end of the sessions of gaol delivery.  Until that day, the court had to assume that the Attorney General had exercised due discretion in the matter.

[5 ] See also Sydney Gazette, 23 June 1831.

[6 ] As this is in the notebooks of Dowling J., the reference is to him.

Published by the Division of Law, Macquarie University