[government officer, defendant in criminal case - stealing - receiving stolen property - Maria Island - convict evidence]

R. v. Lord

Supreme Court of Van Diemen's Land

Montagu J., 5 May 1834

Source: Colonist, 10 June 1834[1]

Before Mr. Justice MONTAGU and the following Jury:

Major Deare, 21st Regiment, Forman.

Captain Armstrong, Lieutenant and Adjunct Young, Lieutenant Ainsley, Lieutenant Demott, Lieutenant Corbett, H.P. Royal Navy, Deputy Assistant Commissary General P. Roberts.

Thomas Daunt Lord, late of Hobart Town, Esq., was given in charge to the Jury, for that he, on the 30th day of April, in the 3d year of the King, did feloniously steal, or cause to be stolen, and carried away from Maria Island, one iron crane, value five shillings. The second count charged the prisoners with receiving.

Mr. Solicitor General McDowall (in the absence of the Attorney General) spoke as follows:--

May it please your Honor, and the Gentlemen of the Jury, in this case it becomes my duty to lay before you the circumstances on which I am confident you will, with the evidence produced on the part of the Crown, ground a calm, deliberate, and conscientious verdict. I entreat that you will dismiss from your minds all the scandalous rumours, which may be prejudicial to the accused, and confine yourselves strictly to the investigation, on which you are about to enter. None regretted more than he (the Solicitor General) the unfortunate circumstances under which the prisoner was placed; but should any of the witnesses for the prosecution attempt to travel out of the direct course of evidence, he, the Solicitor General, would not suffer it;[*] and in making this admission, he was confident that he was rendering the proper satisfaction to the prisoner's Counsel, which he sought. Mr. McDowall went on to say, that Major Lord was appointed Commandant at Maria Island in 1827; that the iron crane was a fixture in the Government-house, and that he would shew by a witness, of whom credence the Jury would be the best judge, that the fixture was removed by the instructions of Major Lord, and fixed in his private residence, until found by the Chief Constable. The question for the Jury was, whether the article in question was the property of the Crown, and being so, whether the prisoner knowingly retained it. He, the Solicitor General, trusted, that, the character borne by the prisoner would remove any doubt, and any should arise; and the number of respectable individuals who he understood had been subpoenaed in point of character, though they may not remove facts, would materially benefit the prisoner’s case where facts were not proved in evidence.[+]

Mr. Joseph Morgan, examined by the Solicitor General. -- Is Chief Constable of this Island; went to the prisoners residence on the 1st of May last; had a search warrant; Major Lord was not at home; the crane, now produced, is the one, to the best of the witnesses knowledge, found on Major Lord’s premises, at Oak Hampton; it was a fixture; witness caused it to be removed in consequence of the King’s broad arrow being on two parts of it; constable Smith removed it, under the directions of the witness. It was placed on a bullock-cart, and sent to Spring Bay; had no private mark on it; believes the crane now produced to be the same one; it is worth about eight or ten shillings.

Cross-examined by Mr. Gellibrand.-- A man named Catchpole, formerly in the service of Major Lord, pointed out the broad arrow on the crane; did not see the mark until the crane was taken down; gave directions to have it taken out on the morning of the 1st of May; did not see it again until the morning of the 3d; saw no marks of the broad arrow until it was removed; it was then put into the bullock-cart, and removed to Spring Bay, in custody of Catchpole.

Thomas Smith, examined by the Solicitor General. -- Is a constable, and accompanied Mr. Morgan to the residence of Major Lord on the 1st of May last; the crane now produced was a fixture in Major Lord’s residence; the witness pointed out a mark of a "stay" by which he knew it.

William Catchpole, examined by the Solicitor General. -- Entered the service of Major Lord at Oak Hampton about three years back; accompanied the Chief Constable to Oak Hampton on 1st May; has seen the crane now produced before; pointed it out to Mr. Morgan; it is the same crane; witness here pointed out the marks; it was delivered to him by a man named Richards; where it came from, witness could not tell of his own knowledge; put it in the store-room; it was fixed up soon after.

Cross-examined by Mr. Gellibrand. -- Had absconded from Major Lord's service eight or ten weeks back; accompanied Mr. Morgan to Oak Hampton; knew there were marks on the crane; saw them when he put it into the store, and also when taking it out; the marks were a broad arrow, and other marks beside; never apprized Major Lord of these marks; the crane was brought over at the breaking up of the establishment at Maria Island; cannot say that Major Lord was present when the crane was brought a month or six weeks, before King left the Island; Major Lord was not on the farm when the crane was taken out of the store; the establishment was broke up about fifteen months; cannot say where Major Lord was, when the crane was put up; Major Lord, whilst Police Magistrate, would often be absent a week and upwards; after witness absconded, his original sentence was extended, and he was returned to Government.

George Richards, examined by the Solicitor General. -- Was sent to Maria Island in 1827; was first employed as clerk; after in a boat, and subsequently in the service of Major Lord; went into Major Lord’s service in 1830; served there as butler and house servant eighteen months; has seen the crane now produced, in Major Lord’s kitchen, at Maria Island; was at the latter place when the Settlement was broken up; knows the crane by the marks; came to Hobart Town with Major Lord; the crane was removed by witness in pursuance of Major Lord’s directions to his farm, and delivered over to Catchpole.

Cross-examined by Mr. Gellibrand. -- The crane now produced is the one witness saw at Government-house, Maria Island; went in the boat with the crane; Major Lord was at Maria Island some time; about twelve of the establishments were then on the Island; recollects some gentlemen coming to take an inventory; the crane was removed after; recollects a man named, Thomas Homer, being at Maria Island; he was overseer of the blacksmiths; while witness was Superintendent's clerk, the iron was drawn from the store by requisition; it was made out by the Superintendent, and signed by the Commandant, and when worked up, applied to the purpose for which it was drawn; have no knowledge of a [???]

[?] question, by Mr. Justice Montagu. – "If iron was drawn form the manufacture of five or six articles, it would be stated on the requisition; if drawn for one purpose, and converted to another, it would shew a deficiency."

By Mr. Gellibrand. -- The practice was to make a return weekly, which was sent for examination to Major Lord, thence to the Superintendent.

Mr. Justice Montagu. -- I doubt very much whether this is evidence, or that it should be received as such.

A book was now produced, containing (as we understood) a weekly routine, but which was considered by the Court inadmissible.

Examination continued. -- Knows that Major Lord had an iron on the Island, occasionally his own property; have no knowledge of the iron being wanting by the Crown, and Major Lord lending any; when the raw material came down, it had not the broad arrow on; it had after being manufactured, by Major Lord’s orders.

James Parker, examined by the Solicitor General. -- Is a bricklayer; put up a crane at Major Lord’s residence, fifteen or sixteen months back; the crane now produced is similar, but cannot swear that it is the same.

Mr. Neal, examined by the Solicitor General. -- Was Commissariat Clerk at Maria Island; went there in September, 1830; it was his duty to deliver articles from the store.

Mr. Justice Montagu. -- That is all after the crane was set up in Government-house; I cannot see what it has to do with it.

Richards recalled. -- Never observed the crane at the Government-house, until he went into the service of Major Lord.

Mr. Justice Montagu. -- If the crane had the broad arrow on it whilst in Government-house, it must have been Government property, and it was of no importance what the practice was subsequently.

Mr. Gellibrand. -- Your Honor, my object is to shew that the broad arrow was put on either by mistake of Major Lord, or by design of some other person; and that the iron, of which the crane was composed, was his private property.

Mr. Neale recalled. -- The property so marked as that on the crane, was Government property; Major Lord had iron of his own to witnesses knowledge in 1831 and 1832.

Mr. Justice Montagu. -- That would be no evidence after the crane was once up.

Examination resumed. -- Cannot recollect having at any time any iron of Major Lord’s in the store of which he had charge; a broad was held in April, 1832, previous to the breaking up of the establishment at Maria Island, for the purpose of taking inventory of the Government property; cannot recollect that the crane was mentioned in such inventory.

By Mr. Gellibrand. -- Did not Major Lord display the greatest anxiety in the protection of Government property. Objected -- the Solicitor General observing of course he did, he was paid for it.

By the Solicitor General. -- Did you, of your own knowledge, select a single article of Government property, and enter it as such? I do not think I did. Did not Major Lord point out the different articles of Government property? I think he did.

The case here closed for the prosecution

Major Lord. -- May it please your Honor, and Gentlemen of the Jury, I hope you will excuse my feelings in addressing you on this occasion. I joined His Majesty’s service at the early age of fifteen, and served him faithfully for the long period of twenty-two years; during which time I rose to the rank of Field Officer. Sould [sic] it be thought necessary, I can produce testimonials of character of the first description; I will now draw your attention, Gentlemen, to the circumstances of my case:-- Shortly after my arrival in this Colony, I was sent to the take charge of Maria Island. On arriving there, I had no shelter but that of a common hut, until I erected a house by the direction of the Governor, who desired that I would render myself as comfortable as possible. For considerable time, both myself and my family, were in want of many necessary articles; and I do assure you, that many things which I brought from England were appropriated by me the furtherance of improvements. The chimney, which had been erected at Government-house had fell, had I had a stone-cutter to rebuild it; in the course of which, I had the crane made out of iron sent to me from Hobart Town, and which was my own private property -- I never troubled the Government for any trifling articles necessary for mine or my families comfort. -- I invariably purchased them at my own expense; nay, very often the blacksmith applied to me for the loan of iron, when there was none on the Island belonging to the Government, even to the rod-iron have I lent; but which was always returned. When I first went to Maria Island, I had no orders -- no instructions whatever, how I was to proceed. -- Whatever orders were issued, all emanated from myself; in proof of which, I would refer the Jury to the orders contained in my books; there was a detailed account weekly of the quantity of iron issued, and also the manufactured article. Such was the system I organised, that any deficiency was immediately observable. -- Is it to be supposed, that for such a paltry article as this, I would sacrifice the character of an Officer and a Gentleman, which I had maintained from my boyhood. I had no orders whatever to go by. I organized the whole myself; and was I disposed for peculation, I had facilities in abundance. -- I formed a manufactory of cloth; a tan-yard, and a shoemakers’ shop. -- I went to Maria Island when it was a bush, and I left it, after erecting thereon buildings to the amount of thousands. Gentlemen, it is the first time in my life that ever I addressed a court especially one of this description and I hope that you will make an allowance for my feelings. -- With regard to the crane, I beg to state, that I gave the iron to make it, and which fact I will prove in evidence. Had I known there was a broad arrow on it, I would have immediately returned it; and if I did not do so, I would have acted imprudently, knowing that my servants would see it. I now leave my case in your hands, trusting that my character in the Colony will be a sufficient answer to the present charge.

Thomas Homer, examined by Mr. Gellibrand. -- Is a blacksmith, carrying on business at Baghdad; was overseer of blacksmiths at Maria Island about two years and a half ago; was overseer in 1829; took a requisition to the store every day, for the iron that was wanting; was allowed twelve pound for waste on every hundred weight; when the iron was manufactured, it was taken back to the stores and weighed; Major Lord had iron, his own property in 1829, and 1830; Major Lord lent iron to the Government on several occasions, which witness returned; made a crane for the fire-place, and drew the iron from Major Lord’s house; believes it was a put up there; never made more than one on the Island; never had a requisition to the store for iron to make a crane; Major Lord had iron when crane now produced was made; it was witness’s make; the broad arrow is on it, but witness never put it on; the iron had no broad arrow on it previous to it being manufactured; the broad arrow was not produced by a proper stamp; witness has seen the broad arrow stamped on previous occasions; had directions to put the broad arrow on the Government wrought iron.

By the Solicitor General. -- Neither of the broad arrows are the same as would be produced by either of the witness’s stamps; there are only two cuts on the crane, whereas his stamps would produce the third cut in the centre; there are only two sides -- there should be three.

Mr. Commissary Roberts, one of the Jury. -- The fact is, it is not the King’s mark; witness did not think it was; sometimes the mark is made on hot, at other times on cold iron; witness was overseer of the blacksmiths, and part of his duty [???] the crane is composed, was some of the same witness brought from the Jetty for Major Lord; swears positively that the impression of the broad arrow is not from his mark.

Mr. Johnston, managing clerk to Captain Wilson, proved to Major Lord’s purchasing a quantity of iron from them in 1829, and 1830, one of the same description, as that of which the crane was composed, and that it was shipped for Maria Island.

Mr. Commissary Carr was next examined, as to whether the crane formed an item in the inventory taken at Maria Island by the Board of which he was a Member; and although the Court was occupied a considerable time in the examination of this witness, no information could be obtained as to whether it did, or did not form such item.

Mr. Justice Montagu to the Jury. -- Gentlemen, I do not see any necessity for proceeding any further with this investigation, without it is your wish to do so, a witness having sworn, that the mark was not the broad arrow, and that having not be contradicted. -- The jury instantly returned a verdict of NOT GUILTY.

The prisoner was next indicted for feloniously stealing one lock, value 10s., the property of the Crown, from Maria Island.

Mr. Joseph Morgan, Chief Constable, proved to having given direction for the removal of a lock similar to that produced in Court, from off the front door of Major Lord’s residence, at Oak Hampton; and believed that the mark thereon; was the broad arrow of the King’s mark; Catchpole pointed out the lock to the witness, and also the spot marked with the broad arrow.

Constable Smith corroborated the testimony of Mr. Morgan, with respect to finding the lock, and bringing it to Hobart Town.

William Catchpole, examined by the Solicitor General. -- Saw the lock now produced a fortnight or three weeks after the breaking up of the establishment at Maria Island, on the front door of Major Lord’s house at Oak Hampton; noticed the lock by the occasionally opening the door; observed the broad arrow on it about three weeks or a month ago.

Cross-examined by Mr. Gellibrand. -- Did not see Major Lord for three weeks after the lock was put on; it was put on by a man named Fowler; did not mention the broad arrow being on the lock to Major Lord; but mentioned that, together with other circumstances of a like nature, to Mrs. Lord; Mr. Aubin was at Oakhampton several times, but never mentioned the circumstances to him; told it to Mrs. Lord before he absconded; did not tell any Magistrate; is not a blacksmith; have occasionally put a clinch in a spade or the like.

Mr. Justice Montagu. -- Perhaps you put the broad arrow on that lock? -- No I am not capable of putting on broad arrow, it is too well done for me.

William Fowler examined. -- Is a carpenter in the service of Major Lord and have been for the last fifteen months; the lock now produced is the one which he took off the door at the direction of the Chief Constable; put on a lock some time previous; will not undertake to swear that is the same; it had not the broad arrow on; Major Lord was not at Oakhampton, when the lock was put on; observed no mark on it; thinks if there were any he should have seen them.

Mr. Neale examined. -- Was clerk to the Commissariat at Maria Island; the mark on the lock is the Government mark; had locks of that description in his possession at Maria Island; they were iron bound locks; did not recollect having any with brass handles.

[The handle being separated from the lock, Mr. Gellibrand contended that the witness should answer to the whole; on which the Solicitor-General observed that the prisoner was on his trial for stealing a lock, not the handle]

Witness could not recollect that he had ever had any brass handle locks in his charge; had iron bound ones similar to that produced; had been at Government-house during Major Lord’s residence there, and recollects the locks having brass handles; believes it customary to have the broad arrow on the iron between the handles; that which he held in his hand was not so marked; have seen the broad arrow unaccompanied by any other mark on Government hardware.

Mr. Gellibrand contended, that there was no case to go to the Jury, as no man could be called on to account for his possession of an article, where no loss was proved; and it was not shewn in evidence that the King ever had a lock of that description.

The Solicitor-General thought that on the evidence of Mr. Neale and Mr. Morgan, there was a case for the Jury, they having proved the Government mark.

Mr. Justice Montagu saw nothing to take this case out of the rule of common law, where no loss was proven. The King’s mark was an arrow, with initials denoting the department to which it belonged, that was not the case in the present instance; he therefore thought the general rule should be adhered to, where no loss was proven. The Jury, under the direction of his Honor, acquitted the prisoner.

Mr. Justice Montagu. -- Have you any other charge to prefer?

The Attorney-General. -- After the verdicts which have been given, and what have fallen from your Honor, I do not feel it my duty to prefer any fresh charge. -- Major Lord was then discharged.

The Court was greatly crowded during the trials.

Notes

[1] Lord had been commandant of convicts at Maria Island until November 1832 and had often been accused of misappropriating or stealing government goods. Although he was acquitted in this case, Governor Arthur suspended him from the magistracy. Lord protested, but the Secretary of State, while criticising Arthur, did not reinstate Lord, J.R. Morris, 'Thomas Daunt Lord (1783-1865)', Australian Dictionary of Biography, vol. 2, pp. 131-2 and A.G. L. Shaw, Sir George Arthur Bart, 1784-1854, Melbourne: Melbourne University Press, 1980, pp. 131-2. See also R. v. Pain, 1834; and R. v. Robertson (No. 2), 1835. The latter gives the background to this extraordinary case.

[*] [Footnote in newspaper.] We hope to find the Solicitor General not upon this principle in future. He has not always done so; but it is never too late to mend. - Ed

[+] [Footnote in newspaper.] Although we should hope to be never found to condemn a public prosecutor for leaning to the side of mercy, we cannot help contrasting the tone of this address with the tone of the Solicitor General on all other occasions. It has hitherto been remarkable, the Mr. McDowall charges to the Jury in cases where he has conducted the prosecution have been chracterised by the bitterness; but on this occasion, the learned Gentleman seems to have changed his nature, or to have fancied he was pleading FOR, instead of AGAINST the accused. It would be far more congenial to our ides of propriety, as well as more in character with the spirit of English Law, if public prosecutors always refrained from prejudicing the case of the accused in their charge to the Jury. – Ed Col.