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

R. v. Gallagher [1837] NSWSupC 57

convict attaint, right to property - ticket of leave, right to property

Supreme Court of New South Wales

Dowling A.C.J. and Kinchela J., 19 August 1837

Source: Sydney Herald, 21 August 1837[ 1]

Patrick-Gallagher, convicted before Mr. Justice Kinchela of burglary.  Mr. Foster appeared for the prisoner, and moved that judgment be arrested.  The information charged the prisoner with breaking into the dwelling-house of Robert West, and, according to West's evidenced, he was a convict felon under a sentence of transportation, holding a ticket-of-leave, and he therefore submitted to the Court the information must fail.  By the 2nd and 3rd Wm. IV., cap 62, it is enacted that no person holding a ticket-of-leave shall be able to hold any property, and therefore a burglary could not be committed in his house, nor could the prisoner be charged with stealing his property.  Mr Justice Kinchela said that he overruled the objection at the trial, but upon the learned counsel pressing it, he had reserved it for the opinion of his brother Judges, who agreed with him that it was not fatal.  The Act of Parliament certainly enacts that no ticket-of-leave holder shall possess any property, but that does not do away with the proof of a person being a convict required by the Act of Council; there was a regular mode of proving it pointed out, and as that had not been adduced, the objection must be overruled.  Three years in an ironed gang.




[1 ] See also Australian, 25 August 1873, noting that Kinchela J. said ``that the offence of which the prisoner had been convicted was one of those on which the punishment of death had been taken off by a recent enactment."  See also Sydney Gazette, 22 August 1837.

The opinion of the Crown Law Officers in London was that convicts' money taken from them at the time of embarkation for New South Wales or Van Diemen's Land belonged to the crown.  Any money they earned after receiving a conditional or absolute pardon was theirs: in Glenelg to Gipps, 10 March 1838, Historical of Australia, Series 1, Vol. 19, p. 314.

Governor Gipps wrote to Glenelg about the issue on 1 May 1838 (Historical Records of Australia, Series 1, Vol. 19, p. 402).  He said that under 2 & 3 Wm 4 c. 62, s. 2, convicts were incapable of holding property.  However, any property they had when transported, or that they earned under sentence, was not confiscated but placed in the bank for them.  It was then given to them on their obtaining a ticket of leave rather than as should strictly have been the case, when they obtained a pardon or their sentence expired.  This was not usually a problem, said Gipps, as the amounts were small.  One convict, Henry Herring, had £714, which caused problems to Gipps.  The governor gave him half the money after he received his ticket.  Herring had a remarkable career: he was transported to New South Wales three times, having escaped from there twice.

For another attaint case, see Klensendorlffe v McPherson, Australian, 10 July 1838.  A buyer purchased sheep from a holder of a ticket of leave, paying in full.  Before all the sheep were delivered, the ticket was cancelled and the crown seized the undelivered sheep.  A nonsuit was awarded against the buyer's claim against crown for the sheep seized.



Published by the Division of Law, Macquarie University