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

R v Harrop and Viall (1832) NSW Sel Cas (Dowling) 341; [1832] NSWSupC 5

stealing, in dwelling house, meaning of "dwelling house" - squatting practice

Supreme Court of New South Wales

Dowling J., 10 February 1832

Source: Sydney Gazette, 11 February 1832[1 ]

 

Alfred Haroch and William Vial were indicted for breaking and entering the dwelling-house of Robert Johnstone Esq. at Limesstone-plains, and stealing therein various articles, the property of Robert Johnstone Esq. and one Charles Sculthorp.

Charles Sculth rp [sic] examined - I am Overseer to Mr. Robert Johnstone on his station at Limestone-plains; I know the prisoners; they were in the service of Mr. Johnstone in the Month of Nov. last, and employed as watchmen over the sheep; Mr. Johnstone usually visits the station once a year; I live in a bark hut belonging to him there; the roof and the walls are all bark; there is a door to it fastened with a padlock; when Mr. Johnstone is up a the station, he lives in that hut; on the 2nd of Nov. I lost a gun, a quantity of wearing apparel, 160 lbs. Of flour, two bushel bags, a frying-pan, a razor, two silk handkerchiefs - one black and one red; 1 lb. of gun-powder 6 lbs.  of shot, and one bottle of spirits; the spirits, bags, flour, and six pairs of duck trowsers, were the property of Mr. Johnstone; I saw these things safe in the house when I left it in the morning, and locked the door after me; when I returned about 1 o'clock, I found the door unlocked, and a sack of wheat and part of a sack of flour emptied out on the floor; a sheet of bark had also been removed out of the side of the hut, leaving space sufficient to admit the body of a man; what I gave for the things I lost, was about £6; I gave fifty shillings for the piece, it was a detonating gun; I cannot put a value on the property stolen belonging to Mr. Johnstone; I saw William Vial at his own hut, near to mine, that morning; I did not see the other prisoner that morning; I did not see either of the prisoners after that day till the 20th of November, they were absent off the farm, and I was forced to get other men in their places; which they were taken, I saw a waistcoat and a jacket of mine on the back of the prisoner Haroch; he had also a black handkerchief of mine round his neck; Vial had a pair of trowsers and a yellow silk handkerchief of mine on him; they were in my box when I left the hut the morning of the robbery; when I returned I found that the staple had been drawn and the box opened; the  prisoners were taken by two men named Britton and Greenfield, in the service of Mr. Johnstone.

Cross-examined by Mr. Rowe - I always got in and out of the hut by the door; the piece of bark near the door, which I found removed, could not be taken out without breaking some part of it; it was fastened like all the other sheets, with nails; the piece of bark was broken; the hut had been erected about eighteen months; the station at Limestone plains was not a grant of my master's in November last, I believe; when we change a sheep station we do not knock down the huts, we leave them standing; I reside in another hut on the station before I built this particular one; I can't tell whether a hard wind would blow it down; I have known very hard winds there, but it never was blown down; I do not live in the same hut now; I have built another since the robbery.

George Britton - I am a shepherd in the service of the prosecutor; I know the prisoners; I remember the robbery in question; the prisoners were missing from the station for eighteen days succeeding the robbery; on the 20th of November I saw them both about a mile from the station; Haroch was armed with a fowling-piece, and Vial with a tomakawk; Benjamin Greenfield was with me; we took both the prisoners into custody, and brought them to the station, where Sculthorp claimed some of the clothes on the person of Haroch, and also on Vial.

By the Court - There was a fire-place in the overseer's hut, but no windows; it was about 18 feet long, and 10 or 11 wide; the stores of the farm were kept there; there was no other place on the station in which we could have kept the stores as safely.

By the Jury - I never knew Sculthorp to lend any of his clothes to the prisoners.

Benjamin Greenfield was put into the witness box, but was not asked any questions by the Crown Officer.

Cross-examined - I was not on the station at Limestone-plains when the hut was robbed; it was at another station of Mr. Johnstone's at Lake George; we remove from station to station; when we leave a station we do not knock down the huts.

The witness, Sculthorp, recalled, identified the gun and wearing apparel taken from the prisoners to be his property, which were stolen from the hut on the occasion of the robbery.

Robert Johnstone Esq. - I have a sheep-station at Limestone-plains.

Cross-examined - That station is now a grant to my brother-in-law; in Nov. last I was only there permissively; I applied to rent it, but it would not be allowed; we remove our stations from time to time, and leave the huts which we may have erected behind us; this was not a permanent station.

This was the case for the prosecution.

Mr. Rowe, on the part of the prisoners, submitted that the place in which the offence had been committed could not be considered a dwelling-house within the statute.  To constitute a dwelling-house, in cases of this nature, there must be a permanent habitancy.  It had been held that a booth, or tent, although the owner live in it, was not a dwelling-house, for the purposes of burglary.  In this case, Mr. Johnstone had stated that the station was not a permanent station, and that the hut was used for a mere temporary purpose.

Mr. Justice Dowling - Stand up Mr. Johnstone - How was this hut secured to the soil?

A - By a trench being dug, and the bark let down into it.

Q - Could it be moved about?

A - No.

Q - It is let into the soil?

A - Yes; the bark is let into the soil, and nailed to the frame all round. The frame was built first, and the bark nailed to.

Q - How long would a hut of that kind last to be habitable?

A - Five or six years.

Q - Have you ever lived in it yourself?

A - Yes, in bad weather, when I have been up at the station.

By Mr. Rowe - The wind would not blow the hut down; there is no enclosure round it ; I should suppose such a hut would last six or seven years, but not without occasional repairs; without repairs it would last, in my opinion, for four years.

Mr. Justice Dowling said there were two objections raised in the case - first that this hut could not be considered a dwelling-house, within the statute, and, secondly, supposing it to be so, that it was erected on land not belonging to the prosecutor. With respect tc [sic] to the second objection, it was wholly untenable; because as against a wrong door, it was no defence to dispute the title. The only question then was, whether this was a dwelling-house under the statute to be, to give protection to such buildings as persons could erect, in order to secure their property, whatever the material might be of which they were formed. It would certainly be absurd to say - and it had been so held - that a mere booth or tent, moveable from place to place, was a dwelling-house: here, however, was a secure building erected to protect the property and stores necessary for the use of the persons employed a that station; and, whether it were erected for a week, a month, or a year, was of not consequence, so long as it was used as a permanent dwelling during the time. He was of opinion, therefore, that there was nothing in this objection.

The learned Judge then summed up the evidence, and the Jury found both prisoners guiltyDeath recorded.

 

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

 

[p. 131]

 

[A Back Hut erected on a Sheep Station on waste Crown Land, erected with Posts sunk in the [p. 132] ground and occupied by the prosecutors servants as a dwelling house during the time they remain on the station is such a building as will sustain an indictment for Housebreaking Per DowlingJ.]

 

[p. 131]Rex v Harrop & Wm Viall

 

Coram Dowling J

 

Breaking and entering At Limestone Plains the dwelling house of Robert Johnstone and stealing on 3rd November of Trousers 1£ 1 quart of Gin 5s 2 bags 5 140 lbs of Flour 1£ 1 Bridle 10s his goods 1 pr Trousers 1£ 1 Jacket 1£ 1 waistcoat 10 [p. 132] 2 handkerchiefs 2/s 2 Shirts 10/s 1 Gun 1£ 1 fryingpan 5/s 2 Tin Pots 2/s 1b Gunpowder 2/s 6lb lead shot 2/s 1 p Hobbler 2/s good of Charles Sculthorpe.

The prisoners were found guilty.  Death Recorded.

Vide Vol 62. p 164.[2 ]

 

Notes

[1 ] See also Australian, 17 February 1832; Sydney Herald, 13 February 1832, both of which called the prisoners Harrop and Viall.

See similarly, R. v. CraytonSydney Herald, 5 March 1832; Australian, 9 March 1832.  Crayton was charged with burglary in the dwelling house of the King.  Chief Justice Forbes held that the building was not a dwelling house, but an office used by the magistrates.

[2 ] This reference is to Dowling, Proceedings of the Supreme Court, Vol. 62, Archives Office of New South Wales, 2/3245, p. 164.  This is the judge's notebook account of the case.  At p. 171, it says ``Dowling J.  I held to be a dwellg. Ho. For this purpose."

Published by the Division of Law, Macquarie University