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

R v Murray and Cunningham [1833] NSWSupC 61

stealing, horse - autrefois acquit - reception of English law

Supreme Court of New South Wales

Dowling J., 23 May 1833

Source: Australian, 24 May 1833[ 1]

Thursday, May 23. - Before Judge Dowling and the usual Commission.

Hamilton Murray and Thomas Cunningham were jointly indicted for stealing a filly the property of Alexander Imlay, at Swashfield on the 26th October.

It appearing in evidence that the filly was the joint property of Alexander and Peter Imlay, the prisoners were under the direction of the learned Judge acquitted upon that information.  They were again indicted for stealing the filly, the property of Alexander Imlay and another; before the prisoners pleaded, Mr. Therry who defended them took an objection to their being again indicted, on the plea of autrefois acquit and cited in support of his argument from 2d Russel on Crimes 39.  Judge Dowling in reply remarked that this was at least the twelfth time to his knowledge that the same point had been over-ruled by the Court, he was surprised that any gentleman of learning and information should stop cases every time they came into Court on points that had been so often decided.  Such an objection could not prevail unless the prisoners had been placed in jeopardy - where there had been a fair trial on both sides as to the merits; the present trial had been one of mere form; if it had been at the end of the trial and the prisoners had exposed their case, then the objection would have prevailed.  The filly was laid as the property of Alexander Imlay, when it appeared not to have belonged to him, but to him and another, on that indictment the prisoners had been properly and righteously acquitted, as the technical part had fallen to the ground, but that indictment could not meet the indictment on which they were now charged, their being a considerable variance and the record must cover the whole matter, in form and substance.  The present objection must be over-ruled.

Mr Therry wished his Honor to take a note of the objection which was declined, the point being too well settled, but Mr. Therry might argue the question before His Excellency in Council.

Both prisoners were acquitted.[2 ]


Forbes C.J., Dowling and Burton JJ, 27 June 1833

Source: Sydney Herald, 1 July 1833[3 ]


Hamilton Murray, convicted of horse stealing, was placed at the bar, when Judge Dowling addressed him, observing that he had been sentenced to transportation for life after conviction, under a late Act of Parliament, the Judges however entertained a doubt whether that Act applied to this Colony at present, not having been re-enacted, by the Colonial Legislature, and adopted; and the Court having power to alter a sentence during its sittings, now ordered sentence of death to be recorded against him.



[1 ] See also Sydney Gazette, 25 May 1833; Sydney Herald, 27 May 1833.  For the trial notes, see Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, p. 125.

[2 ] Murray was then tried again for stealing another horse, and found guilty: Australian, 24 May 1833; Sydney Herald, 27 May 1833.

[3 ] See also, Australian, 1 July 1833.

Published by the Division of Law, Macquarie University