Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 10 March 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 175] [A Felony having been committed in a public [p. 176] office and in a room under the same roof a watch man slept, but which had no direct communication with the office cannot be laid as the dwelling house of the King.  Where a prisoner was asked by the committing Magistrate, if some writing on a piece of paper was his? which paper formed a link in the chain of evidence against him and the prisoner voluntarily answered "yes", Held that this admission could not be excluded.]

[p. 175]Saturday 10th March 1832

In Banco

CoramForbes CJ

Stephen J

Dowling J

Rex v Francis Creighton

The prisoner was indicted for  Burglary and Larceny in the Public Police Office building Sydney which was described as [p. 176] the dwelling house of our Sovereign Lord the King".  At the trial before Forbes CJ during the later sittings it appeared that the only person who dwelt in the Police Office was a man servant who was a watchman or office keeper who had a sleeping room appropriated to him in the building, but having no immediate communication with the office which had been broken and entered and which was kept locked as a seperate [sic] place from that in which the watchman slept.  It was objected upon the evidence that the Police Office could not be considered as the dwelling house of Our Sovereign Lord the King.  Of this opinion was Forbes and he directed an acquittal of [p. 17] the Capital part of the charge.

The case of the prisoner rested upon a train of circumstantial evidence.  On the night of the robbery he slept out at Barracks where he was sort of Waiter or Porter  Next day he appeared in better habiliments than usual   He gave no account of where he had been on the night he was away from the Barracks where he usually slept.  When the robbery was discovered a piece of candle wrapped round with a piece of paper was found on the table with some writing upon it.  The piece of paper had printed lines and marks denoting that it had been in the office to which the prisoner belonged.  When the prisoner was apprehended he was brought before the Magistrate, who addressing him in a peremptory tone [p. 178] and presenting to him the piece of paper in question, with writing upon it, said, is this your handwriting Sir?  The prisoner said "Yes".  This piece of evidence formed a material link in the chain of proof, and upon it chiefly the Jury found him Guilty of Larceny.  Rowe for the prisoner.  Upon being now called up for Judgment contended that the acknowledgment of the prisoner to the piece of paper was to be considered in the nature of a confession obtained under duress or fear:  Sed

Per Totam Curiam .-

this is no confession, it is merely an admission, if an isolated fact which might or might not form a material risk in the [p. 179] chain of evidence, and is no way to be considered as falling within the rule which excludes involuntary confessions.