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

R v Kay and others (1835) NSW Sel Cas (Dowling) 928; [1835] NSWSupC 98

piracy, elements of - convict escape - burglary - Vaucluse - Wentworth, W.C.

Supreme Court of New South Wales

Forbes C.J., 16 November 1835

Source: Sydney Gazette, 19 November 1835[ 1]

(Before His Honor the Chief Justice and a Military Jury.)

Joseph Kay, James Hanson, John Williams, John Hobart, Thomas Ford, James Brennan, William Brennan, Joseph Hirst, and John Stockwell, were indicted for piratically seizing theAlice schooner, the property of William Charles Wentworth, Esq.

When called on to plead, the prisoner Joseph Kay, pleaded guilty, but amended his plea by the advice of the court.  The prisoners having no counsel, the Solicitor General suggested to the court that counsel be appointed to the prisoners, and His Honor requested Mr. Sydney Stephen to plead for the prisoners, to which Mr. S. assented.

Mr. Stephen contended that the prisoners were wrongly indicted; the offence could not by possibility be construed into piracy.

His Honor said that this was not the time to take such objections; the trial must proceed, and if Mr. Stephen could raise objections, either to the jurisdiction of the court, or to the indictment, he would have an early opportunity of doing so.

The Solicitor General entered into an argument on the jurisdiction of the admiralty court, His Honor taking notes of the argument, and the trial proceeded.

The facts of this case having already been fully detailed in the journals when the examination was had at the police office, we confine ourselves to the mere historical account, as given by the master of the Alice.

Hamilton Ross sworn - Was in Mr. Wentworth's employ in October last; was master of theAlice, a vessel of about 20 tons, the property of Mr. Wentworth; on the 15th of October she was moored in Vaucluse Bay, about 100 yards from the shore; Vaucluse is in the harbour of Port Jackson; the harbour of Port Jackson extends from the Heads to Long Nose Point: the vessel was anchored in about five or six fathom; Vaucluse is opposite Chowder Bay, about a mile and a half; from North Harbour; Manley Beach lies about north from Vaucluse; on the night of the 15th October, John House, the prisoner Williams, and myself, were on board the schooner; about 3 o'clock in the morning I was awoke by a noise on deck; I got up and called to the other two men who slept aft, to see what was the matter; I was coming up that hatchway and was stopped by a man, who put his hand on my head and desired me to keep below; I saw several persons on deck and they told me to make no noise; one of the men called for a sword, and something was given into his hand which I took to be a bayonet; I did not see a boat alongside, but heard them making a noise; I considered it was the guard boat come to search for something; I sat for the space of four or five minutes, and I opened the fore hatch, when John Williams and John Hobart told me to keep below and make no noise; that I should not be injured, and nothing should be taken from me and that I should go on shore in the whale boat so soon as were outside the Heads; I said to Williams, ``are you in this?" he said yes, he was a lifer, and he would get his liberty if he could; I thought it was no use to attempt to get on deck so I remained below, until I found by the rise of the vessel that we were outside the Heads, and I went on deck without opposition; I requested them to let me and House leave the vessel in the whale boat, but got no answer; no one appeared to have any control, and I went aft to the man who was steering, and asked him if he was captain, or who was; he said he did not know, that he was not captain, and that we were not far enough from the Heads to let me on shore; I asked him a second time and he refused; during the time I was arguing with him I lost sight of the boat, but whether he cut her away or not I don't know; he then began laughing, and said he would give us the dingy, a small boat of about nine feet keel; I told him they might as well throw us overboard as set us adrift in the dingy in such a sea; he told me they were bound to New Zealand, and I told him the vessel was to weak to reach there; he then said he was bound for Torres' Straits, and to keep the land aboard; he told me he had no nautical instruments abroad, only a chart; I went down to strike a light for the binnacle; the wind was blowing south, and he was standing out to sea, about ten or twelve miles from land; I studied how I should act, and I took the mizen off her, knowing that he could not steer her without it; he then jibed the main sail and the vessel stood in land; I went and staid below, and in the morning I found we had drawn in land, and were about a place called Berrima, beyond Port Stephens; they asked me to take the helm, which I did, and steered in land, and when we were drawing close in, Brennan desired me to keep her out, and ordered another man to relieve me at the helm; we passed Newcastle about eleven or twelve o'clock in the day; after we passed Newcastle I came on deck a second time, took charge of the vessel, and I took her to Salamander Bay, near Port Stephens, where we anchored, and stopped all night; Salamander By is about six miles inside the Bay of Port Stephens; next morning they got the boat out, and sent her with two men for water; before this, Stockwell told me that I need not be afraid, that I should go on shore; my mate, House went on shore to shew them the water; House remained on shore when the boat came off; they tried to persuade me to join them, which I refused, and I told them they might either give me a passage over the side or take my life, that I would not go with them; Stockwell said I should go on shore; I went into the boat, went on shore, joined my mate, and proceeded to Newcastle, and gave information of what had happened; they had flour, sugar, and tobacco, which William Brennan told me they had got from Mr. Wentworth's store; they had three sacks of flour, a bag of sugar, and a keg of tobacco, but I cannot state the quantity; they had some silver spoons, and Kay, who had been Mr. Wentworth's butler, told me they belonged to Mr. Wentworth; after I gave information, I stopped at Newcastle two days, and came to Sydney in the Hind; two hours after I left the vessel, I saw the Revenue Cutter standing in for Port Stephens; I saw all the prisoners, nine in number, on board the vessel; some of the prisoners were sea sick, and could not take a part in the conduct of the vessel; they all appeared to be of the same party combined together; there was a good deal of conversation amongst them; they said they had not taken a poor man's vessel, but one's who could afford it; Kay told me to tell Mr. Wentworth that if he had not got away he would have settled him in another way; I had some money due to me by Mr. Wentworth, and I said that I could not expect he would give it to me as I had lost the vessel; Kay said he would give me my discharge, which he did, and signed it as Captain of theAlice.

Cross-examined by Mr. S. Stephen. - From where the Alice was at anchor in Vaucluse Bay, we could not see the open sea; from the South Head to Spring Cove on the opposite shore, is about a mile and a quarter.

John House gave evidence to the same effect as the last witness.

By the Court. - The Alice was in about four and a half fathoms water; the ebb and flow of the tide is about four feet; the Alice would not have been ashore at low water.

The Solicitor General closed his case.

Mr. Sydney Stephen again took exceptions to the indictment, and contended that by the Act Henry 8th, under which this indictment had been laid, the Admiral had not jurisdiction where the venue was laid.

The Solicitor General replied at considerable length; and his Honor stated that it was a case which required consideration, and he would reserve the point for the opinion of the Judges.

His Honor then summed up, and put the case to the Jury on the facts, who found the prisoners Guilty.

The prisoners were indicted for a burglary in the dwelling house of W. C. Wentworth Esq., at Vaucluse, and found Guilty, with the exception of the prisoner Williams, who was acquitted.

The question as to the jurisdiction of the Admiralty in the case of piracy, will be fully argued on Friday, when we shall give a full report of this very important decision.


In banco, Forbes C.J., 20 November 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p. 80] [Indictment for Piracy held bad, for not charging the offence to have been committed on the High Seas.]


The King v Kay & others


The prisoners were tried and convicted of Piracy.  The indictment omitted to state that the offence was committed on the High Seas, although charged to be within the Jurisdiction of the Admiralty of England.  On motion in arrest of Judgment, the Court held the indictment not maintainable, &

Discharged the prisoner.


Source: Sydney Herald, 23 November 1835[ 2]

Joseph Kay, James Hanson, John Williams, John Hobart alias Stoddart, Thomas Ford, James Brennan, William Brennan, John Stockwell, and Joseph Hurst, convicted of a burglary in the dwelling-house of W. C. Wentworth, Esq., and the felonious seizure of a vessel called the Alice, with intent to escape from the Colony.  His Honor observed, that the case of the prisoners at the bar to receive sentence, was not one of ordinary burglary, malignant as such offence is under any circumstance, it was one which combined within itself a series of crimes against the law and the peace of society, it was one which public justice required should be visited with the most exemplary punishment, public justice demanded it.  Sentence of death was then passed on the prisoners in a manner which must have left the wretched men no room to hope for the extension of mercy.  The prisoner Kaye, manifested a desire to address the Court after receiving sentence, but was taken away from the bar.



[1 ] See also Australian, 17 November 1835; Sydney Herald, 23 November 1835.  TheAustralian called the first defendant Key, and the Sydney Herald, Keyes.

The Sydney Herald's report (23 November 1835) is as follows:

``Monday - Before the Chief Justice and a Civil Jury. - Joseph Keyes, James Hanson, William Hobart, Joseph Hurst, William Brennan, Thomas Brennan, John Stockwell, William Ford, and Thomas Williams, stood indicted for feloniously and piratically seizeing and taking to Sea, a Vessel called the ``Alice," from Vaucluse, where she was lying at anchor.  The fact of the taking away having been proved, Mr. Sidney Stephen, on the part of the Prisoners made an objection to the indictment, in as much as the offence did not fall within the jurisdiction of the Lord High Admiral of England, the same having been committed in the Harbour of Port Jackson, and not on the High Seas: he contended therefore that the felonious taking did not amount to Piracy, as set forth to the indictment.  The Attorney General quoted the case of the King v. Bruce in the Reign of Henry the Eight, where the taking of a vessel from the Harbour of Milford Haven, was held to be a piratical seizure, and a conviction was effected accordingly; His Honor would give no opinion on that point in the present stage of the case, but would put it to the Jury on the facts.  The Jury returned a verdict of Guilty.  His Honor observed, that he would refer the point to the consideration of his brother Judges at an early opportunity.

``The prisoners were again arraigned for a burglary in the dwelling house of W. C. Wentworth Esq. at Vaucluse on the 14th October last.  It appeare[d] by the evidence of Hamilton Ross, Master of the ``Alice," that the prisoner Williams was on board with him during the whole of the evening of the night on which the burglary was committed until the vessel was boarded, and was not therefore a party to that transaction.  The Jury found the Prisoner Williams Not Guilty; the whole of the other Prisoners Guilty.  The Solicitor General intimated that another indictment would be exhibited against Williams, who was remanded with the other prisoners."

[ 2] See also Australian, 24 November 1835; Sydney Gazette, 26 November 1835.

Published by the Division of Law, Macquarie University