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

R. v. Dawley, Madden and Murray [1834] NSWSupC 116

stealing, cattle - legal profession, division of profession

Supreme Court of New South Wales

Dowling J., 4 November 1834

Source: Sydney Herald, 10 November 1834[1 ]

Joseph Dawley, John Madden, and John Murray stood indicted for stealing one ox, at Long Swamp, in the country of Argyle, the property of William Lawson, Junior, Esq.

Mr. Rowe, who had received a retainer to defend one of the prisoners, applied to the Court to know whether he could appear professionally, when his Honor directed him to submit an affidavit, stating the fact that he had been retained by the prisoner previously to Saturday last, which was put in accordingly.

His Honor Mr. Justice Dowling - This affidavit, Mr. Rowe, is sufficient; you may be allowed to appear as an Advocate for the prisoners under the circumstances disclosed, as a matter of necessity, and in justice to the prisoners.

Mr. Rowe. - It gives me pain to hear your Honor make a matter of necessity of that which I justly claim as a right.  I am here ready to defend the prisoners by whom I have been retained; and if, after twelve years' experience at the bar of this Court, my gown is to be taken from me, unless by an act of indulgence, I must decline the honour of again appearing at the bar of New South Wales.[ 2]

His Honor Mr. Justice Dowling - I will not be replied upon, Mr. Rowe; I tell you, Sir, that I will not recognise your right to appear as a Barrister of this Court, only with a view to the benefit of the prisoners - and I will not hear any further discussion on this matter.  I regret to be placed in a situation which requires any apparent harshness on my part towards the gentlemen of the bar, but I have a painful duty to perform - and I must be bound by that duty - in maintaining the dignity of the Court.

Mr. Rowe replied, making some further observations on the peculiar hardship of his case, when his Honor ordered the Sheriff to be sent for, in order to take him into custody if it were persevered in, when Mr. Rowe sat down, under considerable excitement.

Mr. Therry addressed the Court in an application for a postponement of the trial, as the recent order of Court prevented his appearing unless through the brief of an Attorney, and his learned friend Mr. Rowe (on whose assistance he had calculated, and whose tried zeal and professional skill was acknowledged both by the bar and the public) had refused to give him his brief as an attorney; he therefore knew no alternative, beyond a postponement of the case, to allow time for making the necessary arrangements.

His Honor observed, that for the sake of the prisoners Mr. Therry would be allowed to put an affidavit on the files of the Court, stating that he had been retained before Friday last, and that since that period there had not been sufficient time to draw a brief in the case, when he would be allowed to proceed.

Mr. Therry complied with his Honor's suggestion, and the case proceeded.

It appeared, from the evidence of Martha Smith, that in the month of August, 1833, she lived in the service of the prisoner Dawley; she saw a bullock brought into her master's yard by the prisoner Madden, and it was killed by the prisoners and Joseph Murray, who is now confined in the hospital, and brother of the prisoner John Murray; it was branded WLJ; when killed it was cut up and salted, and used in the house.  [This witness was cross-examined at considerable length, for the purpose of affecting her credibility.]

John Moore stated that he is acquainted with all the prisoners; Madden and Murray lived in Dawley's house; he remembers coming up Long Swamp in August last, when he saw the prisoners skinning a bullock, branded WLJ; as he approached, the prisoner Madden turned the bullock over, apparently with a view of concealing the brand; Mr. Surveyor Richards subsequently lost a cow, and asked witness if he had seen a cow slaughtered branded JR, when witness informed him of what he had seen with regard to the bullock; Mr. Richards reported the circumstance to Mr. Lawson, which led to the apprehension of the prisoners.  [This witness was cross-examined for the purpose of shewing that he had been apprehended on a charge of cattle stealing from the information of one of the prisoners, and had vowed revenge; it appeared, however, that the charge was unfounded, and he was not committed for it.]

On the part of the prisoners, two witnesses were put into the box, who deposed that from the 1st July to the 6th September the prisoner Murray was at the distance of forty miles from the residence of Dawley; witnesses were employed by Murray, splitting posts and rails, and were constantly in his company during that time.

The Jury returned a verdict of Not Guilty.

 

Notes

[1 ] See also Sydney Gazette, 6 November 1834. The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 166.

[2 ]  See Division of the Legal Profession, 1834.

Published by the Division of Law, Macquarie University