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

R. v. Harrison [1840] NSWSupC 20

felony, compounding, criminal procedure, South Creek, trial by jury

Supreme Court of New South Wales

Stephen J., 13 May 1840

Source: Sydney Herald, 15 May 1840

James Harrison of South Creek out on bail, was called on to plead to an information charging him with having compounded a felony, but as he did not answer, the Attorney-General applied for a Bench Warrant against him, which application Mr. Foster as Counsel for the absentee opposed by stating that as his client was merely charged with a misdeameanour it was not necessary for him to be personally present during the the trial; he also contended that it was not imperative on him to appear until the last day of Sessions, and that his client was entitled to four days to plead after the information had been filed, which had not been allowed in the present case, on the contrary, the information which his client had been first been called on to answer, had been withdrawn and another filed on the same day he had been called on to go to trial.  He (Mr. Foster) was ready to go to trial on the first information, but if the one filed that morning was to be the document on which the Attorney-General was to proceed, he submitted to the Court that his client was entitled to a reasonable time, in order to meet it.  He also informed the Court, that he had attended the Court for two days, in order to get the case gone over, and that in the absence of his colleague, Mr. Windeyer, who was retained in the same case, he did not think his client could safely go to trial without a reasonable time being allowed him to make such arrangements as were necessary to meet the charge.  As to the absence of his client, he could assure His Honor it was merely temporary, he having gone off last night for a material witness; he had good reason to believe his client was not a character who would flinch from his trial, he (Mr. Foster) having received a very excellent character of him from a military officer, and besides, there was nothing in the case that he had occasion to shrink from.

            The Attorney-General insisted that according to the practice of the Court he was entitled to have a Bench Warrant issued, as he had information on which he founded the application, which Mr. Foster was not aware of.  Independently of which as the absentee was bound by the terms of the recognizance to appear at such time as he should be called on to answer the charge, and had failed to do so, he contended that the bail ought to be [?]estreated.  He also embraced that opportunity of making his determination known respecting proceedings being taken against all parties who in any way aided persons on bail to escape from trial, which he should certainly carry into effect; he also considered it imperative for the ends of public justice, that in such cases as the present, that the party to be proceeded against should be in custody before the trail commenced.

            His Honor stated that he would confer with his brother Judges on the matter, and retired for that purpose for nearly an hour.  On returning to the Bench he stated that he had consulted with Mr. Justice Willis on the point and had also enquired of Mr. Gurner, the Chief Clerk, what was the practice of the Court, and found that if the Attorney-General insisted that a Bench Warrant should be issued he must grant it, he however left it to the Attorney-General's discretion to press the matter.  As to the practice of the Court, he had found that it was in several points different from that in the Mother Country; he would however state what he had been informed by the Chief Clerk was the usual mode of proceeding and that was 1st. - That any party charged before the Supreme Court with a misdemeanour was, if admitted to bail, bound to appear in person, in order to plead to the information and go to trial.  2ndly - If the party charged with a misdemeanour, after having received notice of trial from the Attorney-General in the usual way, did not appear to plead and go to trial, then a Bench Warrant might, as in the case before the Court, be issued.  3rdly - after pleading to an information, and not before, a party is entitled to a copy of the information, and may, after having pleaded, be allowed such a reasonable time to prepare his defence, as the Court may see proper to grant.  4th.  It was the practice in the Mother Country when parties were charged with misdemeanours and held to bail within twenty days of the time they were called on to plead, to allow them to traverse the case to the next sessions, but such a mode of practice had not been, and he thought should not be followed here, as were it adopted, the ends of justice might be frustrated, and the country subjected to an enormous expense in bringing witnesses from the interior.

            On the application of the Attorney-General His Honor issued the Bench Warrant against the absentee.  The Jurors who had attended for the third day were then informed that as no other panel had been summoned for Thursday, it would be necessary for them to attend on that day.  The Attorney-General subsequently handed in an information charging the men Herson and Fogharty, with the woman Gorman, as principals, accessaries, and accomplices, in the murder of William Fannon alias Fanning, in the Government Domain, in the year 1834.  He stated that his reason for doing so, was that the prisoners might be called on to put in an affidavit respecting the materialty, of the testimony of some witnesses who reside in distant parts of the Colony, and whom they represented as necessary for their defence, particularly one person who resided sixty miles beyond Yass.  After the information had been read they severally pleaded not gulity, and Fogharty informed the Court that he could not safely go to trial without the evidence of the person from the interior, in whose employ he was at the time when the murder was alleged to have been committed.  The female and Herson stated, that all their witnesses were in Sydney, and His Honor instructed Mr. Keck, the Gaoler, to get the proper document prepared in order to enable the Court to act in the case as circumstances might require; he also intimated to the female that her Attorneys, Messrs. Chambers and Thurlow, were the proper parties to arrange her defence.  The Court then adjourned till Thursday.


John Harrison, of South Creek, Parramatta, was indicted for a misdemeanour committed by his compounding a felony with one Henry Herbert, on the 21st March.  The prisoner pleaded not guilty.  He was afterwards remanded.

Dowling C.J., 17 May, 1840

Source: Sydney Herald, 18 May 1840

John Harrison of South Creek, was then indicted for perverting the course of justice, by compounding a felony with the foresaid Henry Herbert by receiving a horse from him, as a bribe not to prosecute him.  The indictment also charged the said Harrison with desisting from the prosecution of Herbert, and with acting so as to enable him to escape with impunity.  The prisoner pleaded not guilty; the prisoner through his counsel, Messers. Foster and a'Beckett, challenged nineteen jurors, eleven of whom had been on the preceding trial, while two were challenged by the crown which exhausted the panel, there being only four jurors unchallenged.  The prisoners counsel wished to have the challenges to the eleven jurors, who tried the prisoner on the preceding information to be allowed as challenges with cause, but his Honor ruled  that he must first exhaust his peremptory challenges, after which he would consider the question of challenges, on cause stated.  The panel having been gone through before the prisoner's preremptory challenges were exhausted, the trial was postponed pro defectu juratorum, and the question was not gone into.

Dowling C.J., 20 May, 1840

Source: Sydney Herald, 25 May 1840

In consequence of the discharge of Herbert, Harrison, who had been indicted for compounding the felony, was also brought up, severely admonished, and informed that there was no doubt in His Honor's mind, that he, Harrison had been guilty of compounding the felony, and also by his evidence had helped Herbert to escape from justice; and His Honor should leave it to the grave consideration of the proper authorities whether it was not their duty to cancel his licence.  He was then discharged, and the Court was then adjourned for the sessions.

Published by the Division of Law, Macquarie University