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

R. v. Hodghen and Paten [1838] NSWSupC 10

police corruption - conspiracy - fraud - domestic violence - married women's legal disabilities

Supreme Court of New South Wales

Dowling C.J., 22 February 1838

Source: Sydney Herald, 26 February, 1838[ 1]

Tuesday, Feb. 20. - Before the Chief Justice and a Military Jury.

Benjamin Hodghen, late of Windsor, Chief Constable, and his daughter Ann Paten, late of the same place, widow, were indicted for a misdemeanor.

The information set forth that the defendants, being evil-disposed persons, and willfully and wickedly contriving to injure one Michael Power, did at Windsor, on the 14th day of November, and at divers other times in the months of November and December, conspire, confederate, and combine among themselves, and with one Elizabeth Power, to defraud the said Michael Power of divers large sums of money: and on the said 14th day of November the said Michael Power had in his possession twenty £10 notes, seventy £5 notes, one hundred £1 notes, one order for £39 7s. 3d., one hundred half crowns, one hundred shillings, and one hundred sixpences, carefully deposited in his house, in a box which was locked, which box was broken open and the money abstracted therefrom by the said Elizabeth Power, who therewith absconded from her husband; and the said defendants, Hodghen and Paten, represent that they would assist the said Elizabeth Power to escape from the Colony to Van Diemen's Land; and the said Benjamin Hodgen, as Chief Constable, having the said Elizabeth Power in charge for absconding from her husband, did, in furtherance of the conspiracy, unlawfully allow the said Elizabeth Power to retain the said money in her possession, and afterwards induced the said Elizabeth Power to give him the money, under pretence that he would take care of it, and thereby enable her to take some of it to van Diemen's Land; and that in consequence of such representation, and in furtherance of the conspiracy, he thus got into his hands and possesion a large sum of money, to wit - £500, of which he thereby defrauded the said Michael Power, to the great damage of the said Michael Power, the evil example of all others in the like case offending, against the form of the statute in that case made and provided, and contrary to the peace of our Sovereign Lady the Queen, her Crown, and dignity.  A second count charged the defendants with conspiring to obtain a large sum of money, with intent to defraud Elizabeth Power; and a third count charged the defendants with conspiring with certain persons, to the Attorney-General unknown, to defraud the said Michael Power of a large sum of money - to wit, £500, but without mentioning any overt acts.

The evidence in the case was so lengthy that it lasted until past twelve o'clock at night; but the facts of the case appeared to be simply as follows:- About the middle of the month of November last, a woman named Power absconded from her husband, a settler at Wilberforce, taking with her about £500 in money.  At Windsor, two days afterwards, she was taken into custody under a warrant from Mr. North, charged with stealing from her husband; she was taken to the Court House, and remanded until the following day.  On the way down from the Court to the Watch-house, while in charge of Hodghen, Mrs. Power got the money from a house in which it was secreted, and told Hodghen that if he would be her friend she would give him a hand some present; instead of taking her to the Watch-house, Hodghen took her to his own house, where she put in a drawer; they then had some tea and some brandy, and she was taken to the Watch-house.  The next morning she was again taken to Hodghen's house, where she was detained until the Court sat, when she was discharged and went home with her husband, who, on his arrival at his own house, gave her almost unmerciful beating, and in a few days she again left her husband, and went to Hodghen's, where she was secreted for a week; she asked Hodghen to look out for a vessel that was to sail for Lausceston, where she would go as she had a daughter there; Hodghen told her when two vessels were about sailing, and she left Windsor by the mail.  When she was leaving the house, Hodghen put a roll of notes in her hand, which he said was her "regulars."  She left the coach at Parramatta for fear she should be pursued; here she examined the notes and found the she had only £84; and she had not been in Parramatta many hours when she fell in with her husband, who took the money from her and took her home.  A few days afterwards she again left her husband and remained a few days at Hodghen's, when it was agreed that she should go to Sydney and remain there until a vessel sailed, and in order to prevent accidents, Mrs. Paten, Hodghen's daughter was to accompany her to Sydney.  Before they left Windsor Mrs. Power asked for some more money, and Hodghen said he had only £5; this produced a quarrel, and Hodghen promised to send some money to Sydney after her.  Mrs. Paten and Mrs. Power remained in Sydney for several days when they returned; and as Hodghen paid no attention to Mrs. Power's application for money, she laid the whole statement before the Police Magistrate, Mr. North.  The Judge told the Jury that if they believed the evidence of Mrs. Power, a case was clearly proved.  The Jury retired for about an hour and returned a verdict of Guilty.  Remanded.

The prosecution was conducted by the Attorney-General and Mr. Therry; the defence by Messrs Foster, Cheek, and Raymond.

 

Dowling C.J., Burton and Willis JJ, 23 February 1838

Source: Sydney Herald, 26 February 1838[ 2]

 

Benjamin Hodgen, and Ann Paton, convicted of conspiracy to defraud.  The Chief Justice said that it was a melancholy spectacle to see a father and daughter standing side by side to receive the judgment of the Court for so heinous an offence as conspiracy, committed under the circumstances of aggravation that attended this case.  After alluding to the principal features, His Honor sentenced Benjamin Hodgen to be imprisoned in Newcastle Gaol for two years, and pay a fine of £500 to the Queen, and be further imprisoned until such fine be paid; and Ann Paton to be imprisoned in the same place for two years.

 

Notes

[ 1]For a longer report of the evidence, see Sydney Gazette, 24 February 1838; Dowling, Proceedings of the Supreme Court, Vol. 147, State Records of New South Wales, 2/3332, p. 75; and see Australian, 23 February 1838.  The Sydney Gazette and Australian both reported the trial as having taken place on 22 February, while the Sydney Herald claimed that it took place on the 20th.

[ 2]See also Australian, 27 February 1838; Sydney Gazette, 27 February 1838.  See also Burton, Notes of Criminal Cases, vol. 35, State Records of New South Wales, 2/2435, p. 47.

Published by the Division of Law, Macquarie University