[cattle stealing - capital punishment - jury, challenge to - Montagu, dismissal of - Montagu, amoval of]

R. v. Bryan and Stewart

Supreme Court of Van Diemen's Land

Pedder C.J., 29 October 1835

Source: True Colonist, 6 November 1835[1]

Robert Bryan and James Stewart - cattle stealing - guilty - Death.

Mr. Gellibrand moved in arrest of judgment, having grounded his motion on the fact, that the challenges made by the prisoner against Major Wellman, as one of the Jury, had been overruled by the Court, and had not been tried by two Triars[sic], appointed by the Court, as by law ought to have been done. Mr. Gellibrand contended, that the question of interest and affecting, was a matter of fact and not a question of law, that a prisoner was not bound to state the grounds upon which his challenge for interest or affection rested; but, that when a Jury man was challenged for interest and affection, an issue of fact was raised, and that thereupon the Court was bound to appoint two Triers to try that fact; that the prisoner before that Jury, was to produce his evidence, to support his challenge, and that upon their verdict, the competency of that Juryman rested; and Mr. Gellibrand insisted that the Court could not legally or constitutionally take upon itself to decide that question, and therefore that the prisoner, in this case, had not been tried by a competent tribunal. Mr. Gellibrand shortly observed upon the difference which obtains in this Colony, and in England, where every prisoner has the right of peremptory challenge of a certain number; and after that right is exhausted, he can then challenge for interest or affection.

Mr. Gellibrand then referred His Honor to the case of Mr. Gilbert Robertson, who took a similar objection to Pay-Marter Jean, in a case of libel upon the Colonel of the regiment, and upon which occasion, the Chief Justice put the law into execution - appointed two Triers, and not deciding the matter himself; and Mr. Gellibrand therefore submitted, that inasmuch as the prisoner had not been allowed to exercise his right of challenge according to law- that he had been improperly tried, and that no judgment ought to be passed on the verdict so given.

The Solicitor General contended in reply, that there was no ground to arrest the judgment, because the objection did not appear upon the face of the record, and that, even if the objections were well founded, that the question could not be decided by the Court, but ought to have been tried by two Triers, yet, that it was too late now to take that objection, and that the proper time for taking it was before the trial; and that therefore, as the prisoner did not then object to the course which the Court had taken, he was now prevented from urging this objection.

The Chief Justice stated that he should feel it his duty, notwithstanding the objection that had been taken, to pass sentence, but that in consequence of the motion that had been made in arrest of judgment, no measure consequent upon it should be carried into effect until His Honor has consulted on the point in question with Mr. Justice Montagu, and, that anything that might avail in favor of the motion, the prisoner should have the advantage of. The Chief Justice also stated, that although it did not appear that the objection was raised on behalf of the prisoner Stewart, still that he should likewise receive any advantage that might result upon it.

The Chief Justice then proceeded to pass sentence of death upon the two prisoners, being the first instance in which sentence has been passed under the Colonial Act, by which this offence is still capital; in all the former cases, the Judges have refused to pass sentence, and have ordered death to be recorded.

Source: True Colonist, 13 November 1835

By Bryan’s Second Trial.

It was our intention to enter very fully into this case to-day, but we had insensibly written on the first case more than would have filled our whole impression. We merely now refer to the second case, for the purpose of correcting a mistake in our notice of it last week. We than said Mr. Robert Bryan had appropriated the bulls as part of the wild cattle purchased by his uncle. This was a mistake. Mr. William Bryan had nothing whatever to do with them. This case is totally different from the first, and we can see no reason to charge any of the witnesses with wilful perjury. It is a pure question of disputed property, such as occurs every day in every grazing district in the Colony, without involving a shadow of a suspicion of an intended felony, as we will show our readers next week. But it is entirely a got up case, with which the alleged owners had nothing whatever to do. Mr. Dry’s character is too well known to lend himself to such proceedings; and we are informed by Mr. Bryan’s friends, that Mr. Lyons, the principal evidence, is a person of unquestionable integrity, and very unlikely to lend himself to such purposes; but we will explain the whole next week.

~·~

Most Extraordinary.

The famous warrant to which we have elsewhere alluded, which was issued to apprehend Mr. William Bryan, on a charge of cattle-stealing, was dated at Westbury, on the 18th of June, and was received at Launceston, from Hobart Town, by post in the forenoon of the 19th. This warrant is signed by Lieutenant Lonsdale, the Police Magistrate of Westbury, which place is about 40 miles to the south-west of Launceston, and by the usual route more than 120 miles from Hobart Town; which is again 120 miles from Launceston; and the body of the warrant is filled up in a hand writing totally different from that of any person in the Launceston or Westbury offices. We leave the Public to reflect on this, and form their own opinion. We know that all the instructions, directing the movements in all these dreadful cases emanated from Hobart Town; but the whole will come out. They may hang Mr. Robert Bryan, and imprison all the Editors in the Colony, but they may rest assured that justice will overtake them.

Source: True Colonist, 15 December 1835

Judge Montagu is dismissed, and to be publicly reprimanded! - First fruits of Bryan's case and Lewis’s trial.[2]

Notes

[1] See also Hobart Town Courier, 6 November 1835; Cornwall Chronicle, 31 October 1835. For the consequences of this trial, see In re Melville, 1835.

Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

For very extensive commentary on this trial, see True Colonist, 13 November 1835. On page 262, that newspaper advertised the imminent publication of "Trial by Jury, and Robert Bryan's Late Cases in the Supreme Court" by Jorgen Jorgenson. The allegation was that the case was based on perjury and a "base and foul conspiracy". Robert Bryan was implicated in an alleged cattle-duffing ring organised by his uncle William Bryan, one of Governor Arthur’s fiercest enemies. John West believed the witnesses against Robert Bryan were ‘open to suspicion’, and that he was ‘sacrificed; if not by the contrivance, with the concurrence of the government’, J. West, The History of Tasmania, Sydney: Angus and Robertson, 1981, p. 130. Robert Bryan was ultimately sent to Port Arthur for six years, Anon., ‘William Bryan (b. 1801?)’, ADB, vol. 1, p. 173.

[2] This was not true. Montagu was dismissed (amoved from office), but not until 1847: see Montagu v. Lieutenant Governor of Van Diemen's Land (1849) 6 Moo. P.C. 489; 13 E.R. 773.