[stealing, mens rea]

R. v. Pain

Supreme Court of Van Diemen's Land

Montagu J., 7 and 9 May 1834

Source: Colonist, 13 May 1834[1]

Mr. John Pain stood indicted, for taking away with a felonious intention, two pieces of quartering, value one shilling, the property of the King. This case excited very great interest, on account of the respectability of the accused, as well as the trifling amount of property. The witnesses for the prosecution were, District Constable Peel, Charles Clarke, Robert Willoughby and John Archer, Esq.

There was some discrepancy in the evidence of Clarke and Willoughby, but it seemed not sufficient to invalidate their testimony.

Mr. John Lee Archer swore, that Mr. Pain had asked his permission to take some seasoned boards, which he said he would replace with others of superior description, which would answer better for the purposes of Government. He admitted, that it was formerly the practice to lend Government property, but he said this has not been the case latterly; yet, if the Crown sustained no loss by the exchange, he could see no harm in it.

Mr. Pain in his defence, admitted having used the quartering for his own private purposes, but said, from the tenor of Mr. Archer’s conversation with him, he considered he might venture to do so on condition of returning it in time; which he did by the witness, Clarke, although he now chose to deny it.

Mr. Gellibrand defended Mr. Pain with great ingenuity, by showing that the prisoner could not have entertained the most distant idea of purloining the two almost useless pieces of wood. He then called Wm. Wilson Esq., Thomas Hweitt, Esq., Capt. Wm. Bunster, John Dunn, Esq., Rev. N. Turner, Mr. Stokell, Mr. H. Hopkins, Mr. Chapman, Mr. Watchorn, and Mr. Hiddlestone, who all gave Mr. Pain a most excellent character, stating that they considered him as a most upright and honest man, and that he bore the general reputation of being so; most of the witnesses has known him for six or seven years, and he arrived in this Colony with Captain Bunster.

The Judge, Mr. Justice Montagu, summed up the case, and impressed on the minds of the Jury, that where false facts had been proven, character could not avail as far as the verdict might go.

The Jury, after retiring for about twenty minutes, returned with a verdict of Guitly.

His Honor then addressed the prisoner, stating, that owing to the excellent character given him by gentlemen of the highest respectability in Hobart Town, he should postpone passing sentence till the following morning after having consulted with the Chief Justice.

~ ~ ~

May 9.

On the Court being opened, Mr. John Pain was called up to receive sentence. Mr. Justice Montagu addressed him as follows :- " Mr. Pain, I have looked into your case, and consulted with the Chief Justice, as I said I would; and, I must confess, I agree with him, that (from the ease with which offences if the nature you stand charged with are committed by persons who hold situations under Government, and also on account of the extent to which such offences are generally believed to exist) they ought to be visited with severe punishment. Although the offence with which you are charged be of a very trifling nature, namely embezzling two small pieces of timber, yet it might have been of frequent occurrence. – Of this I know nothing; but the Government probably do.[*] I will take into consideration the fact of this being your only offence; and from the very high testimonials of your character you have received, I will recommend your case to the favorable consideration of the Lieutenant Governor. I have only to perform my duty." – Sentence seven years transportation.

8 May 1834

Source: Colonial Times, 13 May 1834

            John Pain was placed at the bar, charged with stealing, on the 10th day of February last, twenty-two feet of wood, called quartering; two pieces of sawn wood, and two pieces of sawn timber, the property of the Government.

            William Peel examined. - Knows the prisoner. Went to his house on the 24th of March last, and again on the 9th of April; saw a man named Clark there, a prisoner in the public works; saw the prisoner afterwards on the same day; does not remember any conversation passing on that day between himself and the prisoner relative to some property witness had taken from his house. Brought away some pieces of quartering from Pain’s house, the quartering was built into the wall.

            By Mr. Gellibrand - They were taken from four different windows, two of these windows were in front of the house, one at the side, and one at the back.

            Charles Clark examined. - Is in the employ of Government; was employed in March last at Trinity Church, under Mr. Pain’s superintendence; was employed also by Mr. Pain himself, at his house in Argyle-street; was employed there about a fortnight; Mr. Pain told witness it was his own house. Has seen the pieces of quartering produced before; cut them off himself; saw them first behind the round-house in the new Penitentiary yard; cut them there. Took them afterwards to Mr. Pain’s house by his direction; assisted the bricklayer to put them into the windows, also by Mr. Pain’s direction; assisted Mr. Peel to take them from the windows.

            By Mr. Gellibrand. - Took the four pieces of quartering produced from the Penitentiary; took the two first pieces away a week before the others. Thinks it was in January last that he took away the two last pieces; it was in the afternoon. Mr. Pain told him to go behind the round-house, and he would find two pieces of quartering that would do for lintels for his windows; no one assisted him. Did not see Willoughby at the time. Cut the wood with a hand-saw. Did not say anything to Willoughby respecting the timber on that day. Did not take any quartering in exchange for that now produced; the size is four-and-a-half by three, and about nine feet in length. Can swear to the timber, because of a sloping edge which it has, and a piece of bark. Has a private mark upon it; put the mark upon it at the Police-office; knew it by the sloping edge before. Will swear he assisted to put them into the windows. Is a carpenter. The bricklayers names is John Eager.

By His Honor. - Mr. Pain was at the new works when he told witness to take the timber; Mr. Pain was present when he removed it; shewed the timber to Mr. Pain, who said it was right. Put the timber into the windows the next morning; the quartering would be quite concealed when the house was finished? considered the timber at the time to belong to Government.

Robert Willoughby examined. - Is overseer of carpenters in the public works. Has seen the quartering produced before; saw it behind the round-house at the Penitentiary; raised it on the 10th April, thinks it had been there eight or nine months before. Mr. Pain was employed as superintendent of the works at the Penitentiary. There is no broad arrow upon it; some of the timber in the yard has the broad arrow upon it, and some has not; thinks it is worth about 1s.; it is usually sold by the foot; it is worth about a penny a foot.

By Mr. Gellibrand. - Put the piece of quartering which supported the stair-case up himself; when the road-house was finished, the quartering was laying under the stairs; did not know the piece was removed until the 9th April; Clark told him before that, that a piece had been removed, but did not say from whence; did not know to what piece of quartering Clark alluded.

[Mr. Gellibrand here requested the depositions taken at the Police-office to be read, which was done, from which it appeared that Clark did tell him that a piece of quartering had been taken from the round-house to Mr. Pain’s to be worked up into lintels.]

By His Honor. - Clark did tell witness that a piece of quartering had been taken from the round-house; Clark did not tell him when he took it; Clark told him so before the enquiry at the Police-office; told witness also that it was by Mr. Pain’s orders.

[His Honor here read part of the deposition, in which he says that Clark told him this on the day he took it away, and also that he took it from the round-house.]

John Lee Archer, Esq., examined. - Knows the prisoner, he was employed under witness as a superintendent of carpenters; he was employed generally about the Government works, but more especially at the Penitentiary and new church.

By His Honor. - Mr. Pain had no authority to remove any timber from the Penitentiary yard; he once said he had some boards, which he should like to exchange for some in the new Penitentiary yard; he received no permission to take any from witness.

By Mr. Gellibrand. - Mr. Pain said he had some superior boards, but they were not dry enough for his purpose, and should wish to change them with some in the Penitentiary yard; told him that it was against the Government regulation, but said he did not see why it should not be allowed in particular cases, when the Government received an equivalent; does not recollect an instance in which timber was borrowed from the Government, by builders and returned. The regulation is not very recent, which prohibits any exchange of Government property; such loans never was a general practice. Mr. Pain told witness, that he thought from the conversation with him, that permission had been granted. The boards which Mr. Pain wished to have were seasoned boards; it is desirable to have for a lintel, seasoned boards; does not know of any boards having been removed from the public works; does not know of any having been returned.

Witness Clark recalled by His Honor. - Does not, after hearing Willoughby’s evidence, believe he ever told him of the quartering before the time he stated. It was in January that the quartering was taken; it might have been in February, but thinks it was in the latter part of January.

Mr. Archer recalled by His Honor. - The conversation relative to the boards between witness and Mr. Pain was on the 10th or 11th of March; this was the last conversation, The first was in February; Mr. Pain said he had to lay a floor and that in the Penitentiary yard there were some seasoned boards, which he should like to exchange for some which he had; refused his permission, but certainly said he did not see why the Government should not permit it in particular cases.

This closed the case for the prosecution.

Mr. Pain was then called upon for his defence, and addressed the Court to the following effect - May it please your Honor and Gentlemen of the Jury. - Placed as I am, in a most perilous situation, I feel although aware of my own innocence, considerable difficulty in addressing you. In the early part of February last, I requested of Mr. Archer, to be permitted to make use of about 500 feets of boards, which permission I thought was granted, and which timber I returned; I took also some pieces of quartering, which I also returned; I sent the witness Clark on the same day to Monroe’s, for the purpose of purchasing some quartering, but he could find none of the description I wanted, which was 5 by 3; I afterwards bought some of another size of Monroe, and sent them to the Penitentiary in lieu of the quartering I had used belonging to the Government; this was given by Clark into the hands of Willoughby himself, although they now choose to deny it. This, Gentlemen, is the whole which took place, and I therefore throw myself entirely upon your justice, convinced that gentlemen of your standing in society, will weigh well the whole of the evidence against me, and also allow due importance to the good character, which my witnesses will prove to you, I have ever borne in this Colony, and return a conscientious verdict.

Witness Willoughby recalled. - Recollects Mr. Pain returning some boards to the Government.

[A conversation here ensued between His Honor and Mr. Gellibrand, relative to the admissibility of certain evidence, which Mr. Gellibrand wished to go into, and to which the Solicitor-General objected. His Honor ultimately decided against hearing it.] Mr. Gellibrand called the following gentleman to speak to Mr. Pain’s character.

Captain Wilson examined. - Mr. Pain has the general reputation of being an honest man; have known him for the last eighteen months.

Thomas Hewitt, Esq. examined. - Has known Mr. Pain for the last three years, during that period, he has borne the character of being an upright and honest man.

Mr. Stokell examined. - Has known Mr. Pain for the last three years; he has had the character of being an upright man.

Mr. Henry Hopkins was called, who deposed to the same effect, he had known Mr. Pain for four years.

Captain Bunster examined. - Has known Mr. Pain for six years; he has during that time borne the character of a truly honest man, and for his own part he never knew a man he would sooner trust.

Mr. Chapman examined. - Mr. Pain was for some time foreman to witness, and then, and ever since, he has borne the character of an honest man.

Mr. Hiddleston deposed to the same effect, as also did Mr. Dunn.

Reverend Mr. Turner, also deposed to his general character for honesty.

Witness Willoughby recalled by His Honor, - Never saw any quartering brought to the Penitentiary yard by any one on Mr. Pain’s account; has not seen any in the yard since; never saw Clark bring any quartering to the Penitentiary yard.

Witness Clark recalled by His Honor. - Never went to Mr. Monroe’s for the prisoner, and never took any quartering in Willoughby’s presence to the Government yard.

His Honor then addressed the Jury. The quartering appeared to have been taken at two different times without permission. If the prisoner thought he might construe the conversation he had with Mr. Archer, into a permission to take boards, certainly he could not, into the permission to take quartering; he should offer very few observations upon the case, because he considered it would be insulting to the understanding of the Jury. The prisoner in his defence, had gone into a great deal of irrelevant matter, which was permitted only because, if he were checked, it might prevent his defence by deranging his ideas. The prisoner had stated, that he had returned the quartering, but which was a mere assertion, he not having proved it. A number of highly respectable men had certainly given the prisoner an excellent character for some years previous to this affair, but with that the Jury would have nothing to do; they were merely to try whether he was guilty, or otherwise, after hearing the evidence. With these few observations he should leave it to them to say whether the prisoner was guilty or not guilty.

The Jury retired for ten minutes, and returned a verdict of Guilty.

His Honor said, that on consideration of the excellent character that had been given the prisoner, he should not as he otherwise would have done, sentence him to transportation, but would take the opinion of the Chief Justice, respecting what sentence should be passed upon him, and would give his judgment tomorrow.

Supreme Court of Van Diemen’s Land sitting in Banco

9 May 1834

Source: Colonial Times, 13 May 1834

            On the opening of the Court this morning, Mr. Pain was brought up to receive sentence. His Honor said, that he had consulted with the Chief Justice, and they had come to the determination of not interfering with the regular course of the law. The whole case would be laid before the Lieutenant Governor in Council, and it would be for him, with the advice of the Council, to say whether, under the circumstances, any mitigation of punishment would be consistent with the ends of justice. His Honor then sentenced him to be transported beyond the seas for the term of seven years.

Notes

[1] See also Hobart Town Courier, 9 May 1834. For an editorial on this trial, see Hobart Town Courier, 16 May 1834, stating that the sentence led to feelings of commiseration for the convicted person. After discussing R. v. Lewis, 1834, it concluded: "It is on this ground that we venture to hope that His Excellency in Council will be pleased on the calm and dispassionate view of the case, which will there be taken, to mitigate as far as due regard to equity and justice can do, the extension of punishment in both the above cases."

See also R. v. Lord, 1834; and R. v. Robertson (No. 2), 1835.

[*] [Footnote in newspaper.] We always though until now, that Judges dealt not in probabilities. We could have wished the passages marked in italics in His Honor’s address, have been omitted. Such commentaries from the Bench inflict pain upon the hearers. If it had been shewn in any way that an offence had been of frequent occurrence with Mr. [Peel], the remark would have been free from objection; but the Bench ought not in our opinion, (deferentially do we give it) to talk about the probability of a man’s guilt, as a sort of excuse for passing a heavy sentence.