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

Belcher v. Deneen (1832) NSW Sel Cas (Dowling) 168; [1832] NSWSupC 25

felony attaint - convict, proof of conviction - convict indent - ticket of leave

Supreme Court of New South Wales

Forbes C.J. and  Dowling J., 29 and 31 March 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[1 ]

[p. 172] In support of a plea of convict attaint, an unauthenticated copy of the indent sent out to this Country with transported felons is insufficient though the party has been received and dealt with as a Convict attainted of Felony.


Source: Dowling, Proceedings of the Supreme Court, Vol. 67, Archives Office of New South Wales, 2/3250

[p. 119] Debt on a money bond.  Pleas 1st Non est factum 2nd Convict attainted of Felony.  At the trial before Forbes CJ. at the last sittings it appeared in evidence by parol that several years before the cause of action the Plf. had been transported for life to this Colony for felony, and was assigned to service as a prisoner [p. 120] of the Crown.  Subsequently he had obtained a ticket of leave to work for himself, which ticket was cancelled by the Crown in 1828.  The bond in question was executed and bore date in 1829, at which time he was an assigned prisoner in the service of a Mr Ryrie.  A clerk from the Colonial Secretary's office produced a book in which was entered a copy of what he called the original indent which accompanied the prison ship in which the Plf came to the Colony, but which copy he had not compared with the original.  Not knowing the person of the Plf he could not undertake to say that he was the individual named in such indent.  The Plf's ticket of leave was produced in which he was described [p. 121] as a transport by the particular ship therein named, and his personal description therein was proved to be correct.  This was the only evidence in support of the plea of convict attaint.  There was no dispute as to the due execution of the bond.  The assessors found a verdict for the Plf. subject to the opinion of the Court whether the evidence adduced was sufficient legal proof of the Plf's being a convicted & attainted felon.

Foster. for the Plf. contended that the best possible proof within the reach of the Deft ought to have been produced in support of his plea.  It is quite clear that the parol evidence of the Plf having been received & treated in the Colony as a convict was not sufficient alone. Then as to the indent, all that was produced was an unexamined copy of the original instrument [p. 122] or warrant under which the Plf was said to have been transported.  But even supposing the original itself had been forthcoming, it would necessarily follow from that, that the Plf had been transported hither as a convict felon.  There are offences short of felony for which persons as liable to transportation for 7 & 14 years.  By the law of England the only proof receivable in support of such a plea is the record or a certified copy thereof, of the party's conviction and judgment.  It is true that for purposes of mere police & prison description the indent itself is conclusive evidence against a prisoner of the Crown ( 11 G 4 No 12 local ordinance), but that act leaves the common law as to other cases where it stood before [p. 123] where the capacity to sue & be sued is raised. But admitting that the indent alone wd be sufficient yet here there was only an unexamined copy produced which clearly would not be enough to support the plea of Convict attaint.

Williams contra contended that the evidence produced was quite sufficient to remove all moral doubt of the Plf being a convict attainted of felony, & if so, that was enough to support the plea in t his country.

Forbes C.J.  The only point I saved at the trial was whether anything short of the Indent or an exemplified copy of it would be sufficient evidence of the fact of the Plf being a convict attainted of felony so as to incapacitate him from suing.  There is no doubt that in former times in t he Mother Country, a plea of convict attaint must set forth the record of the Plf's conviction, [p. 124] attainder & judgement of death.  It is notorious as a matter of history that the punishment of transportation was unknown to the common law; there being no power that could banish a man from the realm.  The punishment for a convicted felon was death, & as far as the conviction went the old plea of convict attaint set forth the conviction, attainder & judgement of death.  In modern times an important alteration in the law has taken place respecting the punishment of divers felonies.  There are many offences to which the punishment of transportation is now affixed, although unknown in former times.  The punishment of however is not simply transportation, but it is followed up by assignment to servitude.  The statutes [p. 125] therefore under which offenders are transported, take away the right of free agency & disqualifying the from acting as free citizens in the place to which they are transported.  I apprehend that this position of an assigned servant of the Crown is analogous to that of a Bankrupt under the Bankrupt laws of England, who after Bankruptcy & before his certificated [sic] is incapable of suing, except in certain excepted cases.  The question of this case is, whether there was sufficient legal evidence to sustain the Plf's disqualification: There was certainly most distinct parol evidence that the Plf had been transported to this country or life as a felon convict, that he had been dealt with as a prisoner of the Crown by the local government, & was in actual service as an assigned servant at the very time this bond was executed.  In this country [p. 126] the original record of his conviction could not be produced: & even if it could, still it would only amount to presumptive evidence, & would be of no use without parol proof of the identity of the Plf with the record. In 99 cases out of 100 it would be impossible, even if you had the record, to prove the identity of the party named therein, for the record contains no description of the age or person named in it.  In this respect the indent sent out with prisoners to this country differs from the original record, for in the former instrument there is a personal description of the offenders by which they may be identified.  It certainly is strong prima facie evidence that a man is a convict [p. 127] transport, that he had been notoriously received & dealt with as such in this colony, but though I am unwilling to narrow the proof of a man's disqualification in such a case as this, yet I think the Deft was bound to produce the vest evidence within his reach in the Colony, namely the indent under which the Plf was delivered over to the authorities in this country as a transported convict, or at least an exemplied [sic] copy of that instrument.  This the deft has failed to do, & I think the verdict must stand.

Dowling J.  I am of opinion that there was not sufficient legal proof in this case to sustain the plea of convict attaint.  I beg it however to guard myself against being understood to  hold as an indisputable proposition, that even if the indent itself had been produced [p. 128] that would have been conclusive evidence that the Plf is an attainted felon convict so as to disqualify him from maintaining an action. No case has yet gone so far ( that I am aware of) in this Colony, as to determine that in an action between man & man in their private capacities, the production of the indent alone with the proof of identity would be sufficient to sustain such a plea.  In this country, surrounded as we ate by persons, who are still labouring under the strict legal disabilities arising from convictions for felonies committed in the Mother country, but who from good conduct have been permitted by the Crown as a matter of indulgence, to deal and act as free subjects with their neighbours to acquire property, nay to become wealthy merchants, and who in every respect [p. 129] as far as personal deportment goes, have retrieved the errors of early life, I should be disposed to hold, a deft; who has knowingly dealt with a felon convict as a free subject to very strict proof of his disqualification.  I believe, as matter of history, that even before the Jurisdiction of the Supreme Court, the learned person, who administered justice in this Colony, always held it necessary to produce a certified copy of the record of conviction, to support a plea of this descriptions in an action between party & party; & if I am not mistaken, instances have occurred of trials having been postponed for a sufficient length of time to enable parties to send home & procure the requisite piece of evidence.  Since the present Supreme Court has been established I have always understood it to have been the feeling of the [p. 130] profession that wherever such a plea has been pleaded in a cause between party & party, the deft must resort to the highest degree of proof required in the administration of justice in the mother county to establish a disqualification of this kind.  It is a settled rule of evidence, that in order to disqualify a witness, on the grounds of his being convicted of felony, even his own admission of the fact is insufficient, - the record or a certified copy of his conviction & proof of his identity must be produced.  I know of no instance ever in this country of this rule being relaxed, & certainly a multo forteori I cannot understand why we should relax the strict proof of disqualification in a suitor [p. 131] where the party sued seeks to relieve himself from a legal obligation entered into with a man with whom he has dealt or traded as being sui juris.  Even in pleas of infancy, the strictest proof is required upon the maxim that no man shall take advantage of his own wrong.  I am aware that for purposes of police the strictest & highest proof of a man being convict attaint had been dispensed with by the local legislature.  The local ordinance 11 G. 4. No. 12. 12 May 1830. s.2. recites that ``whereas offender's frequently escape from justice by reason of the difficulty of proving a previous conviction for felony, in places beyond the seas, for remedy whereof it proceeds to enact ``that the production of the indent or instrument in writing or an exemplified extract if so much thereof as may [p. 132] be necessary for the purposes of this act from the office of the Colonial Secretary purporting &c shall at the trial of any such offender &c be sufficient evidence for the purposed of this law or ordinance of the previous convictions of such offender &c.  The passing of this ordinance is itself an implied admission by the legislature, that in no other cases but those contemplated by that act, w.d the indent alone be sufficient legal proof of the part being duly convicted in arts beyond seas.  This court has indeed held, that for the protection of all ministerial officers, receiving & treating persons transported to this colony, as convicts subject to the jurisdiction of local laws, the indent under which they [p. 133]  are to be transported is to be regarded as a warrant of execution & prima conclusive evidence of there being a legal conviction to support it.  This was the decision is HoganHely[2 ] which was an action against the Principal Superintendent of Convicts for falsely imprisoning the Plf, who was proved by the indent to be a prisoner of he Crown at the time of the imprisonment.  To no greater extent have the decision of this court gone. In the case of Cooper vClarkson[3 ] I held  at nisi prius that an indent shewing on the face of it that I. S. was ordered to be ``transported for 14 years" does not necessarily import that he was a felon convict; & his won admission cannot be taken to eke out the fact that he was transported for felony, where the object is to disqualify him from holding land.  A new trial was afterwards moved or in that case, but my ruling on that point was not impugned.  It is however unnecessary in the present case to [p. 134] decide this important question.  All that I desire is to guard myself against being understood to hold that the original indent or an exemplified extract of it would be sufficient to support a plea of convict attaint, in an action between private parties.  In the present case the deft did not go far enough with his proofs to raise that question, in as much as he only produced a copy, of the indent, which copy was not proved to have been examined with the original.  It is quite clear that this was not sufficient, & therefore I think the rule for a new trial must be discharged.

Rule Refused.[4 ]


[1 ] See Bourke to Goderich, 20 November 1832 (Historical Records of Australia, Series 1, Vol. 16, pp 802-805), on the recent history of ticket of leave and attaint in the colony.  Governor Bourke said that he had always considered that attaint applied as soon as a person was sentenced to transportation and servitude, so that he or she was unable to hold property or sue in the courts.  (On this he was wrong: attaint did not attach to all convicts, but only to those sentenced to death for felony. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 66, 70.)  The governor also pointed out that it was often impossible to produce the original record of conviction from Britain or Ireland, and thus attaint could not be established.  Thus the Legislative Council relaxed the law of evidence by s. 35 of (1832) 3 Wm 4 No. 3: the fact of a person coming to the colony as a convict was prima facie proof of conviction of felony. 

Under s. 36, the common law on attaint was relaxed a little: ticket of leave holders could sue to protect property gained during the currency of the ticket.  This, Bourke admitted, may have been inconsistent with the imperial Act, 2 and 3 Wm 4 c. 62. 

A ticket of leave allowed the convict to earn sufficient money to feed, clothe and house herself or himself.  For this to work, he or she had to have the means to sue in order to protect any property earned.  Any imperial Act that removed this right would destroy this system.

[2 ] Marginal note in manuscript: "Ante vol 51. P 5 p . 99 21 March 1831."  See Hogan v. Hely, 1831.

[3 ] Marginal note in manuscript: " vol 54 p. 147."  See Cooper v. Clarkson, 1831.

[4 ] Marginal note in manuscript: "Stephen was ill."

Published by the Division of Law, Macquarie University