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

R. v. Davis [1834] NSWSupC 10

jury, challenge to - stealing, mens rea - stealing, horse - Bathurst - felony attaint

Supreme Court of New South Wales

Forbes C.J., 18 February 1834

Source: Sydney Gazette, 20 February 1834[1 ]

(Before the Chief Justice, and a Jury of Civil


Joseph Davis was indicted for stealing a mare at Bathurst, on the 6th January last, the property of William Ricketts and Peter Drew.  A second count laid the property in one George Luck.

Mr. Sydney Stephen, who appeared for the prisoner, objected to Mr. Thomas Ryan being sworn as one of the jury, on the ground of prejudice.  The learned gentleman said it had come to his knowledge, that Mr. R. had expressed himself as determined to return a verdict of guilty on the trial of the prisoner, which took place yesterday, if he could have prevailed upon any one of his brother jurors to stand out with him.

The Chief Justice said, that as the prisoner was not entitled to a peremptory challenge in this case, perhaps the Attorney General would consent to another juror being sworn in Mr. Ryan's stead.

The Attorney General not consenting to such an arrangement, the Court directed Mr. Stephen to proceed by examination of Mr. Ryan on the voir dire.

Mr. Ryan, in answer to a question whether he had any prejudice against the prisoner, replied none whatever.  He was then asked respecting a conversation which had been stated to have taken place upon the trial of the prisoner yesterday, but the Chief Justice interfered, and stopped the further examination.

His Honor said he could not suffer to be stated what had transpired in the jury-room.  The present was not a legal ground of challenge; and he had no doubt that the case about to be tried, would meet with as much justice from Mr. Ryan as from any other person in Court.

Mr. Ryan was then sworn, and the trial proceeded.

It appeared that the mare in question belonged originally to Ricketts and Drew, by whom it was delivered over with other cattle to Luck for agistment, who was to have one-third of the increase for two years.  The prisoner, who lived at Mr. Cheshire's, was met on the 6th January last, on the mare described in the indictment, which had strayed from the stock station two or three days before.  He was riding after some cattle, and was within half a mile of Bathurst, where he well knew the prosecutor, Luck, lived.  Some of the witnesses stated that stockmen at distant stations sometimes made use of any stray horses found on their runs to hunt after their cattle.  It was proved that the prisoner, previous to his being seen on the mare, was asked by a man named James Dover respecting her; that he told him she was at Cheshire's, and he wished some one would fetch her away.

For the defence, Mr. Sydney Stephen called on Mr. William Davis, of the Church Hill, who deposed that the prisoner was an adopted child of his; that he had known him ever since he was three years of age; that he was a little wild, like the generality of the native youth, fond of stopping out to bathe, and rove in the bush, when he should often have been at home, but he never knew him to be guilty of any dishonesty; on the contrary, he considered him an honest lad.

The Chief Justice charged the Jury.  The information consisted of two counts which laid the property in distinct persons.  This was necessary, because although Ricketts and Drew, were the absolute owners of the animal alleged to have been stolen, yet the witness Luck had a special ownership, and any injury done to her would affect both parties.  His Honor said, he was happy that no objection had been raised as to the competency of the witness Luck to hold property, it having come out in evidence, that he was a prisoner of the Crown, holding a ticket of leave; because he should have felt constrained at once to over-rule such an objection, as the prisoner's counsel must be prepared to shew Luck's legal insufficiency to hold property, by producing the record of his conviction, and by proving him to be in the same circumstances as the persons, whom the legislative enactment creating their disability described.  It was his first impression, that a sufficient case had not been made out to go to the jury, but on second consideration he thought that there was prima facia enough established in evidence to put the prisoner upon his defence.  The question then before them, resolved itself into one of mere animus; whether at the time the prisoner was met riding on the mare within half a mile of Bathurst, it was his intention to convert it to his own use, and unlawfully to deprive the owner or owners of it, which, in point of fact, would amount to stealing, according to the legal meaning of that word; or whether the prisoner had merely availed himself of the temporary use of the animal in the manner to which the evidence seemed rather to incline a belief.  If the jury should be of the latter opinion, the case would assume a very different complexion, instead of a felony, it would become one of trespass; but the practice of stockmen making use of strayed horses, which one of the witnesses had very properly designated a dangerous practice, he trusted would be discontinued, for both as regarded the individuals pursuing it, and the public, such a system was to be deprecated, as it would perhaps place many persons in peril who had no criminal intention, and open a door for the escape of others from the punishment due to premeditated guilt.

The jury after a short consultation returned a verdict of not guilty.

The Attorney General said he had another information to present against the prisoner, but after the verdicts of this day and yesterday in his favour, he hould [sic] not press the remaining case against him, which was somewhat similar in its nature to the last.

The Chief Justice addressed the prisoner on the extreme peril from which he had just been relieved.  Although there was no right to assume guilt in one who had been acquitted, yet he thought the peculiar circumstances which had been developed in his case, rendered it desirable he should not be dismissed without a suitable admonition.  He had been acquitted on two indictments, which placed him under strong suspicions; and if again put on his trial for a similar offence, the effect towards him would be very unfortunate.  A respectable inhabitant of Sydney, the prisoner's adopted parent, had given him a wild character, though he could impute nothing to him of a vicious nature.  His Honor adverting to the fact of the prisoner's being a native of the Colony, advised him never again to present himself as a culprit in a Court of Justice.

The prisoner was then discharged by proclamation.



[1 ] See also Australian, 21 February 1834.

Published by the Division of Law, Macquarie University