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

R v Dougall [1833] NSWSupC 107

robbery in dwelling house - Goulburn - convict escape - Fagan, convicted of robbery

Supreme Court of New South Wales

Burton J., 22 November 1833

Source: Sydney Herald, 28 November 1833[1 ]

Patrick Dougall was indicted for having on the 26th day of July last, entered the dwelling-house of John Maloney, at Goulburn Plains, and by force of arms put in bodily fear, &c., Elizabeth Maloney, and feloniously stole five pounds of bread, value one shilling; five pounds of butter, two shillings; five pounds of beef, one shilling; and one shirt, one shilling, the property of John Maloney.

Elizabeth Maloney deposed to her being the wife of John Malony; that she knew the prisoner at the bar as one of the three men who came to her house on Friday, the latter end of July, about nine o'clock in the morning; she was milking when they came, and they asked her to give them something to eat; she gave them some bread, butter, beef, and a piggin of milk to drink; they went out in the Bush to eat what she had given them, and in about three hours after they returned again; she was sitting in the house alone, except her three small children; they asked her then to give them more to eat; she said she had given all she could; the other two men who are not present, asked prisoner what they should do; he said he thought they had better go farther, but they replied that they would have something where it was to be had, and see what was there; they rummaged about while the prisoner stood guard at the door, but no body came to interrupt them; they took some beef, butter, bread, and one shirt; they then brought out a fowling piece, and gave it to the prisoner, and told him to discharge it; he took it outside, when she followed, and asked him for it, and he gave it her back about fifty yards from the house; the men then all went away; one of the Police took them in about half an hour after leaving her house, and brought them back; two of the men subsequently escaped from the lock-up; they committed no violence in her house; she could not resist their taking the things for fear of violence; she saw the shirt in one of the men's hats; not the prisoner's; it was her husband's shirt, and had a small hole cut in the back.

Robert Frior, corporal of mounted police, stated that he apprehended the prisoner in company with two others, as runaways, on the 16th of July, about half a mile from Maloney's house, at four o'clock in the afternoon; that he saw Mrs. Malony at her house, who said she was happy he had taken them; that they had been twice at her house that day, and the second time had taken a shirt; witness had searched them, and found the shirt, which was produced, and which she recognized in Court as the one stolen from her house.

The prisoner made no defence.

His Honor in addressing the Jury, stated that the prisoner stood charged with a capital offence, but there was no evidence of violence or bodily fear; mere theft was a larceny.

The Jury returned a verdict, Guilty of larceny.

His Honor said that this case should have been disposed of by the Magistrates on the spot, or, at the Quarter Sessions; that it was shameful to put the Public to the expense of such cases, and the Magistrates ought to have punished under that Act.  His Honor desired the Registrar to furnish him with an account of the expenses in this prosecution, and of another trivial one which preceded it.

[We are of opinion that too many cases are already forced on the Quarter Sessions.]

 

Notes

[1 ] See also Sydney Gazette, 23 November 1833, noting that the trial was held before a civilian jury, rather than a military one.  See, too, Australian, 25 November 1833.

Another robbery in a dwelling house case in 1833 concerned the splendidly named Fagan: 18 November 1833, Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3273, vol. 90, p. 197. Fagan was also the victim of a crime: Sydney Gazette, 9 January 1834  (R. v. Mortimer).

Published by the Division of Law, Macquarie University