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

R. v. Ross [1838] NSWSupC 8

felony attaint

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 21 February 1838

Source: Sydney Gazette, 27 February 1838[ 1]

William Ross, convicted of larceny, Mr. Justice Burton said, that he had to inform the Court that the prisoner had been indicted for stealing goods belonging to John Bryan, who it appeared in the course of the case was a ticket-of-leave man, upon which he took the objection that as a ticket-of-leave man cannot hold property the indictment was improper.

The Attorney-General rose in support of the conviction.  He said, that no doubt in common understanding a ticket-of-leave man means a convict serving his sentence, and if he has been convicted of felony he cannot hold property.  The Magistrates he was bound to say, take a deal of trouble in getting up cases and manage the depositions in a manner highly creditable to them, but it sometimes happens that the Crown officers cannot ascertain whether the property stolen belongs to a free man or not.  The Act of Council says, that so often as any question shall arise whether a person shall be free or not, the indent shall be produced, and he contended therefore that as the act points out a mode by which the point is to be settled, unless it was proved that way the Court could take no notice of Bryan being a convict; besides, he would  press upon the Court that it did not follow that because he was a convict he could not hold property; he might have been convicted of a misdemeanor which would not incapacitate him.  The Transportation Act 5. Geo. 4, allowed ticket-of-leave men to hold property, and although that Act was repealed by Lord Wynford's Act, which says, that no transported person, whether holding a partial remission of sentence or not shall be allowed to hold property, yet as that Act could only be looked upon as a prospeciive [sic] and not as a retrospective act, if Bryan was transportod [sic] before the date of that Act he would he enabled to hold property.  On these two grounds therefore, that in order to prove that Bryan was a convict it was necessary to produce the indent, and that if he was banished before Lord Wynford's act received the Royal Assent, he could hold property, the learned gentleman contended that the information was good and the conviction valid.

The Chief Justice said that the Court was bound to consider Lord Wynford's Act as having a retrospective effect; the Local Act which was intended to guide Magistrates in the exercise of their summary jurisdiction says, that the production of the indent and the identification of the party shall be sufficient proof of a party being a convict, but it does not say that no other proof shall be received.  The case where the property is laid in a female who says that she is a married woman, which is at once admitted as evidence, is analagous [sic]; so where the man says that he is a convict as that is not the question at issue it is sufficient evidence.  His Honor quoted several cases to shew that the Court had always considered Lord Wynford's Act to have a retrospective effect, and said that he considered the information was bad.

Mr. Justice Burton said that he had no doubt the objection was fatal; the Attorney-General he considered had been arguing on false premises: firstly, he contended that Lord Wynford's Act is not retrospective, which it certainly is, and secondly, that the Local Act makes the production of the indent imperative which it does not.  Lord Wynford's Act says, ``all transported persons," and if it had been intended to had only a prospective effect it would have said, persons who shall be transported, besides, the cases cited by the Chief Justice, shewed that the Court always looked upon it as a retrospective Act; the proclamations and Government orders which were published soon after the Act arrived in the Colony, shewed that it was looked upon as a retrospective Act by the Executive authorities, while the Crown Officers were in the daily habit of shewing that they considered it a retrospective Act, by inserting a count laying the property in the Queen where it belongs to a ticket-of-leave man.  The Local Act certainly makes the production of the Indent sufficient proof a party being a convict, but it does not do away with other proofs, it merely says that that shall be proof.  Bryan having said he was a convict, in his opinion had the same effect as when a female says she is a married woman, which, that not being the question at issue, is always looked upon as sufficient proof; under these impressions he was of opinion the objection was fatal.

Mr. Justice Willis said that at first view he should have thought that Lord Wynford's Act was prospective, and that it was not intended to deprive those persons of their property who had acquired it under the authority of the 5th Geo. IV., but the full Court having been of a different opinion he of course bowed to its decision.  That point being disposed of, he was of opinion that the proof of the party being a convict was analogous to the ease of a married woman, and therefore he considered that the objection was good, and coincided with his brother Judges that the conviction was bad.  Judgment arrested and prisoner discharged.



[ 1]See also Sydney Herald, 26 February, 1838; Australian, 27 February 1838 (the latter noting that Matthew Gollagher, convicted of burglary a few sessions ago, should be pardoned).

This trial was also recorded in Burton, Notes of Criminal Cases, vol. 33, State Records of New South Wales, 2/2433, p. 53, Burton noting that the matter would be taken before the full court.  He also noted that the statute was subject to 2 & 3 Wm 4 c. 62, s. 3.

Published by the Division of Law, Macquarie University