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

R v Cowan and Campbell [1833] NSWSupC 80

stealing, cattle - Liverpool - sentencing discretion - reception of English law - capital punishment, abolition of

Supreme Court of New South Wales

Dowling J., 23 August 1833

Source: Sydney Herald, 26 August 1833[ 1]

Andrew Cowan and John Campbell were jointly indicted for stealing a heifer, the property of Thomas Shaughnessy, at Holdsworthy, near Liverpool, on the 20th July.

The second count laid the animal as the property of Thomas Rowley.  There were other counts varying the lying of the property.

The prisoners were called up for judgment, when his Honor Judge Dowling addressed them, observing that they had been most satisfactorily convicted; one of them (Cowan) had been twice tried for murder, of which he had been acquitted, and there was no doubt that on the former occasion justice had been defeated by the evidence of the other prisoner; that, however was between their consciences, and their God.  He had now only one duty to perform, to pass upon them the sentence of the law, which was, that they should, each of them, be transported to such penal settlement as His Excellency the Governor might think proper to appoint, for the term of their natural lives.[2 ]

Our readers may remember, that when the prisoner Cowan was tried on Friday week last, for the murder of man named Hill, he was acquitted through the statements of Campbell, who, on that occasion, swore that the statement which he made at the Coroner's Inquest (not on oath by the bye), was totally false, and on which alone Cowan had been committed.

 

Notes

[1 ] See also Sydney Gazette, 24 August 1833.

[ 2] This may seem to be a severe sentence, and possibly to have been influenced by the charge of murder.  However cattle stealing was considered very serious, and sometimes led to capital punishment: see R. v. Curtis and Murtagh, 1828. 

The penalty of capital punishment for cattle stealing had only been abolished in New South Wales on 1 August 1833: (1833) 4 Wm 4 No. 4.  That statute adopted the English Act, 2 & 3 Wm 4 c. 62.  This abolished capital punishment for some  non-violent property crimes, including cattle stealing, larceny from a dwelling house, and most forgeries.  (See W. R. Cornish and G. Clark, Law and Society in England 1750-1950, Sweet and Maxwell, London, 1989, p. 577.)  The new colonial Act applied retrospectively to prevent executions in cases where the offence was committed before capital punishment was abolished.  See also Australian, 1 July 1833, reporting that Dowling J. had expressed doubts as to whether the English Act was in force in the colony.  The colonial Act was passed to clarify the law.

Cowan's first trial for murder was reported in the Sydney Herald on 19 August 1833; and see Sydney Gazette, 20 August 1833.  The second murder trial took place on the same day as the trial for cattle stealing, and was reported in Sydney Gazette, 24 August 1833; and see Australian, 23 August 1833.

Published by the Division of Law, Macquarie University