[stealing in a dwelling house - Launceston - capital punishment - bushrangers - criminal procedure, error in]

R. v. Ward, Buchan, Newman and Dawson

Supreme Court of Van Diemen's Land

Montagu J., 12 February 1834

Source: Launceston Advertiser, 13 February 1834[1]

wm. ward, john buchanan buchan, samuel newman, and thomas dawson, were arraigned on the charge of having, on the 19th day of December last, feloniously entered the dwelling house of James Weavers, and stole therefrom 4 pairs blue cloth trowsers, value 48s.; 10lbs. of tea, value 40s.; 20lbs. sugar, value 5s.; 10lb. tobacco, value 40s., 2 shooting jackets, value 20s.; a fowling-piece, value 20s.; and 1 blue cloth jacket, value 12s.; the property of the said James Weavers. Plea --Not Guilty.

Mr. gellibrand appeared for the prisoners.

The Solicitor-General, for the prosecution, opened the trial in an impressive address to the jury; and then called

James Weavers, who was sworn and deposed as follows; -- I keep a baker’s and chandler’s shop near Launceston; I remember the night of the 19th December; I and my wife went out about half-past eight; we returned about ten o’clock; when we left, we left a man named Stratford, and an assigned servant, named Carpenter, at home; when I returned and went in, I saw a man inside; whom I collared, when another man appeared, with a gun in his hand, and told me to stand; I then saw a 3d man; I can only swear to one of the prisoners (Ward) being present; I saw Ward in the passage between the shop and the sitting-room, with a double-barrel gun; I am positive to its having been Ward; I never knew him before; when I let go my hold of the man I had seized, I was directed by Ward into the sitting-room where my hands were tied; the prisoners continued in my house an hour and a quarter after I went in; [the witness here enumerated the goods stolen, corresponding with the details of the information, as above] they took the property away when they left.

Cross-examined -- The house I reside in is my own; it is my wife’s; what is my wife’s is mine, and what is mine is my wife’s, I should think; I cannot write; my name is Weav-ers; I don’t know how to spell my mane; I was married in the name of weav-ers; the things in the shop are in my name; the accounts are made out in my name.

By the Court -- While the men were in the house a woman came for some candles; the door was opened by Ward, who put her into the room where I was confined; when I first returned to the house in the evening, there were 3 or 4 candles alight in the house; the front door was opened on my arrival at the house before I knocked; the property was taken from the shop and the bed room; I lost more property than is named in the indictment; £70 would not replace the whole; the men were not disfigured or their faces concealed; they were very civil to me and my family; they told us to be quiet and they would not hurt any of us, but they must have what they came for; I swear positively to the first man at the bar (Ward); I believe Dawson was the man who stood at the bake-house door; I saw him the whole time I was bound, upwards of an hour; I cannot swear him positively; the man whom I seized had a gun, when they went away I think the whole of them had guns; I think Buchan was the man who bound me; I am not positive; I only saw 2 men plainly during the time they were in the house; 2 other men were plundering in the shop.

Wm. Carpenter sworn; was living in the house of Jas. Weavers, on the 19th Dec.; at a quarter-past 9 I went to bed, I heard a knock at the door, about half-past 9; I jumped up in bed, and 2 men entered the bake-house where I was sleeping, with guns in their hands; I see the men at the bar (Buchan and Newman); when they saw me, they tied my hands; I saw Dawson afterwards, he was armed and kept watch at the bake-house door; I saw a fourth man; the prisoners has been half an hour in the house, when my master came home; a man named Stratford was sitting in the sitting room.

W. Stratford sworn; I was lodging at the house of Jas. Weavers, on the 19th Dec. last; I remember being disturbed by a noise at the door on that evening about a quarter before ten, I asked who was there; I was answered, by someone asking bread; I opened the door because I thought a customer was at the door; the prisoner Ward came in first with a double barrelled gun in his hand; 3 other men followed; they were Buchan, Newman, and Dawson, I went behind the counter to serve them; they asked me who was at home, and I told them myself and an assigned servant, and that the Weavers was expected any minute; they then took me in to the sitting-room and tied my hands, saying they wanted a few things; I saw Weavers coming in on his return; I heard him say "stand" to one of the men, (Ward) whom he collared, another man presented a gun and told Weavers to stand; they put him in the room with me, and bound him and his wife; I said to Newman, Sam, do not take much property; the man is poor and has a large family; Ward said if I called anyone by his christian name, he would put a bullet through me; they were in the house about an hour and a quarter.

Cross-examined -- Weavers' house is 200 yards from any house; I went behind the counter to serve them with bread, not knowing who they were; after they all had come in, they shut the door, and I knew 3 of the prisoners, they told me to keep quiet, and they would not hurt me.

The prisoners were then called upon for their defence, but they did not offer any.

The judge then summed up; and the jury retired; in about 10 minutes returning into court with a verdict of guilty against all the prisoners. The usual question, why sentence should not be passed, was out to them, severally and each gave a negative answer to it in an audible voice. The judge, after a short and impressive address, passed sentence of death upon the prisoners; and ordered them for execution on Monday next.

Pedder C.J. and Montagu J., 8 and 9 April 1834

Source: (Launceston) Independent, 19 April 1834[2]

John Buchan, who was brought to Hobart Town, by Habeas Corpus, was placed at the bar in order to his case being argued. On examining the Sheriff’s return, however, it was found to be informal, in consequence of its containing a great deal of irrelevant matter. The man was ultimately remanded until to morrow, in order to give time for framing a fresh return.[?]

Their Honors remarked that the Sheriff was to blame in allowing such a return to be framed. The Sheriff attempted to explain, but he did not do so to the satisfaction of the Court. The Attorney General offered to afford the sheriff any information he might require with respect to the proper form of the return.

Wednesday, April 9 -- On the opening of the Court this morning John Buchanan Buchan was placed at the dock again, and on the Sheriff’s return being read and found to be correct, the affidavit of G.M. Stephen, clerk of the Supreme Court, was put in and read. The affidavit stated that the deponent attended the last Criminal Sittings, at Launceston, in his capacity of clerk. That he entered the prisoner's plea of not guilty on the back of the information; that he inadvertently made an entry of the name James Buchanan Buchan, instead of John Buchanan Buchan.

The Attorney General then rose and said he had to move the Court, that the error of the clerk might be amended by the alteration of the name James to John, so as to [?] respond with the verdict of the Jury. The learned gentlemen grounded his application on the fact that the information was not upon the record. The record, although copied from the information, was nevertheless perfectly distinct from it. The record is supposed to be drawn by the Court itself, and there being no record, it could be not be supplied because of the clerk’s error, and consequently the Court was defective. There was not the smallest doubt that the prisoner was the man who was tried with the three bushrangers who have each been executed in Launceston. It was sworn that no other prisoner of that name was tried last Session, and it was perfectly evident that the whole was the mere mistake of the clerk.

Mr. Justice Montagu apprehended there was something more than a mere error of the clerk, for when the clerk said to the jury, after recording their verdict, "You say that James Buchanan Buchan is guilty, and so you say all," thereby replying in the affirmative to the question of the clerk, became in fact a party to the error.

The Attorney General submitted, that prior to the question being put to them, they had in effect legally returned their verdict, which was that John Buchanan Buchan was guilty. It was therefore the clerk only that was in error if in deciding the jury to hearken to their verdict he made use of a different name. For all purposes of substantial justice, it must be admitted that it was the prisoner at the bar who had been found guilty at Launceston.

Mr. Gellibrand then rose and addressed the Court for the prisoner.

All the cases, said Mr. Gellibrand, which have been quoted by the Attorney General, are cases in which there has been something to amend by, in the present case there is nothing besides, the Court was not now merely called upon to amend an error, but absolutely to alter the minutes of the Clerk in a way which, if allowed, would be exceedingly unjust, viz., to the effect of alteration of the name of James to John, and only ground of the motion is the affidavit of the Clerk of the Court, and the authority of a few precedents, which cannot properly be said to bear upon the present case. No memorandum of any kind is produced to shew that the prisoner was not actually tried by the name of James. The learned gentleman then went over the authorities quoted by the Attorney General, seriatim, commenting as he proceeded upon their inapplicability.

Their Honors consulted together for a few minutes, and then directed the prisoner to be remanded.

Notes

[1] See also (Launceston) Independent, 15 February 1834 and AOT MM 71/8, pp. 23-6.

[2] The Independent does not record the outcome of this.