[Attorney General, appointment of – criminal procedure – burglary – trials, illegal]

R. v. Cobb and Molineux

R. v. Thomson

R. v. Paisley

R. v. Dickenson, Abrahams and Smith

Supreme Court of Van Diemen’s Land

Montagu J., 2-4 September 1839

Source: Hobart Town Advertiser, 6 September 1839[1]

Monday, Sept 2 – Criminal Side

            On the opening of the Court this morning, Mr. Jones begged to apprise his Honor that between seven and eight o’clock on Saturday evening, he had received his Excellency’s commands to take upon himself the duties of Attorney General, in place of Mr. McDowell, who had for some reason resigned that office. In consequence of his not yet having taken the oaths of office, or had time to look through the depositions against the several prisoners, the learned gentleman begged the Court would allow him a little time.

His Honor, under the peculiar circumstances, would consent to adjourn the Court till tomorrow by which time the learned gentleman might, his Honor thought, be thoroughly prepared. The depositions were all exceedingly simple, so much so that any one might become master of all the cases in twenty minutes.

Mr. Jones suggested that as his attention would necessarily be called to the Legislative Council, a longer delay would be desirable.

His Honor would have no objection to grant it if it were for the personal convenience of Mr. Jones; but if it were only for the Government convenience, he could not consent to any such thing.

Mr. Jones said that it was solely on the Government account he made the request, which he would not have presumed to do upon his own.

His Honor was under the necessity of declining compliance. The Government had, by an Act of Council, fixed the sessions for the first week in the month, and if it thought proper to summon the Legislative Council at the same time, he could not help it. He would not adjourn the sessions upon any such pretext.

The military gentlemen who had been summoned for the Jury were then discharged.

Tuesday Sept 3, 1839

Before Mr. Justice Montagu, and a Military Jury

            After the prisoners had been arraigned, and severally pleaded not guilty, -

William Cobb and Daniel Molineux were indicted for a burglary and larceny in the house of Christopher Bonney and another, at the Teatree Brush, in the District of Richmond, on the 16th July. The new Attorney General conducted the case.

It appears from evidence, that owing to some information receive, and other suspicious circumstances, Mr. C. Bonney, with his two brothers, Thomas and James, was induced to watch his premises on the night in question; under the impression that an attack would be made for the purposes of robbery. The three accordingly posted themselves, Christopher in a field, concealed behind a stump, Thomas in a store-room in the house, and James, in a cart, about 15 yards from the back door. About 10 o’clock Mr. James Bonney heard footsteps, and looking from the cart observed a tall man go towards the house, try both the kitchen windows, then the doors, which he ultimately burst open; he also saw a shorter man standing about 60 yards off.

Mr. Thomas Bonney deposed to seeing the man come in at the door, pass through the room into his brother’s bed room, and after remaining absent about 20 minutes, return with a bundle -. Being armed with a fowling piece, Mr. Bonney desired the intruder to stand, presented his piece at him, and called out for his brother. Mr. James Bonney on the alarm being given rushed to the house, and there found the prisoner Cobb at the muzzle of his brother’s piece, and a bundle containing various articles of wearing apparel, laying on the floor. They were soon joined by Mr. Christopher Bonney, who had seen two men go towards the house, one a tall man, the other a short one, who he had no doubt was Molyneux. Cobb was detained, and shortly after given with the bundle into custody, and the next morning Molyneux was apprehended in the barn of Mr. James Lowe, asleep. There were strong circumstances of suspicion against this man. He had been an assigned servant to the Messrs. Bonney, and had recently obtained his ticket of leave on which occasion he took away all his clothes without his master’s permission, for which, on being taken to the Police Office, he was ordered out of the district. Notwithstanding this order, he had been repeatedly seen lurking about Mr. Lowe’s premises, and the evening previous a man had been chased by Mr. Christopher Bonney, who could not positively swear to him, but had no doubt it was Molyneux. This was the case for the prosecution; but the Attorney General having omitted to prove that the house was the dwelling house of Mr. Christopher Bonney (with whom and his brother Thomas there was a partnership in all things) or of any particular person. His Honor would not put the prisoners upon their defence, observing that it lay upon the Crown to substantiate every charge which was instituted against a prisoner, and if the Attorney General through oversight or otherwise made out a defective case, his Honor would not amend it, or suffer it to be amended, after the case was closed. To do so, would be to make the Judge, and not the Attorney General, the prosecutor. At the last moment, even after the jury were charged, any person might, if they thought proper tender any evidence, or make any suggestions “in favor of the prisoner,” and it must be heard. This was an acknowledged principle which had existed from time immemorial, but in cases where the evidence against the prisoner was defective, the time to take objections was after the close of the prosecution, and before the accused were put upon his defence, and it was now too late to offer any further evidence against him, without the consent of the prisoner. It was evident that in this case it only wanted a single question to have been asked. It did not occur to his Honor during the trial; and as it had been overlooked, the prisoners were entitled to the benefit, by an established rule in the administration of criminal law. Reluctant as his Honor might be to see a man go away from the bar, against whom there was any case, it were better for one, or two or any number of guilty persons to escape, than an established principle should be violated. Under these circumstances his Honor felt it to be his duty to tell the jury there was no case against the prisoners, in a legal view. It was his province to decide matters of law - that of the jury to determine matters of fact. If he were wrong, there were other tribunals before which he could be brought to account for his conduct. Verdict. - Not Guilty.

[On the conclusion of this case the Attorney General stated his inability to proceed in consequence of indisposition, when his Honor consented to receive the depositions and examine the witnesses in the two following cases.]

William Thomson was indicted for a burglary and felony in the house of James Partridge in Goulburn-street on the night of the 5th August.

This was a paltry case, arising out of spite of a female of questionable character. Some of the details were of an objectionable nature, and the jury without retiring acquitted the prisoner.

William Paisley was indicted for burglariously breaking into the dwelling house of Michael Lackey, Esq.

Michael Lackey sworn. - I reside in Macquarie-street, the house is solely occupied by myself, and contains my property. Between the hours of one and two of the night of the 5th of August, I was called up by my servant, and on going into the drawing room saw the prisoner in the chimney covered all over with soot. There were no marks of soot in the room. Any person might get on the top of the house by means of the verandah.

Cross-examined. - The prisoner was employed for a short time in my schooner but had been discharged: I did not owe him any wages.

This was the case.

The prisoner, in his defence, said Mr. Lackey owed him wages, for which he went to the house about seven o’clock in the evening; but being overcome with liquor, fell asleep, and on waking, wondered where he was and how he got there. On recollecting himself, he endeavoured to escape by the chimney.

The Jury retired, and in about half an hour returned with a verdict of Guilty.

His Honor immediately passed upon his sentence of transportation for life, observing that his character was exceedingly bad, and that the defence he had made was evidently a wicked falsehood. His case was a very bad one, and should receive the extreme severity the law would allow. He would pass some time at Port Arthur, and the duration of that time would depend materially on his own conduct. His Honor declared he would visit every burglary with the like sentence unless there were some strong circumstances of palliation.

John Dickenson was indicted for burglariously breaking and entering the house of Felix Murphy, on the evening of the 16th July, with intent to commit a felony; and Joseph Abrahams and Henry Smith were indicted for aiding and abetting in the said felony.

The particulars of this case are already before the public; nothing new transpired on the trial, and all the prisoners were found guilty.

Sentence deferred.

Wednesday, Sept 4.

Walter Paisley, John Dickenson, Joseph Abraham, and Henry Smith, were placed at the bar.

On taking his seat, his Honor, Mr. Justice Montagu, addressed the Attorney General as follows:- “Mr. Jones, - In the course of the trials yesterday, your commission as Attorney General was handed in to me, agreeably to a request made by me to that effect, and on my receiving it, I observed, to my great surprise, that it was not a commission at all. In the first place, it is made by an insufficient authority, being a more appointment - in the next, it is an absolute appointment, instead of being until the pleasure of her Majesty be made known - and lastly, it is under the seal at arms, and not the great seal of the territory. It was not shewn to me until after the three men on the right had been put upon their trial for burglary, and the evidence partly gone into. Although perfectly convinced convinced[sic] of its illegality, I did not think proper to stay the proceedings then; but I cannot allow any others to take place under such a document. One of those men (Paisley) has been tried, convicted, and sentence, and two others have been tried and discharged. As I believe you are not here to press the legality of the commission, I need only add that those men had been illegally and improperly tried.”

Mr. Jones. - Your Honor, I perfectly admit the truth of what your Honor has said.

Judge Montagu. - “Prisoners at the Bar. - You have heard what I have said to the gentleman at whose instance you have been tried. I thought it necessary for you to bear it. Although you have been illegally tried, you are still liable to be tried again. I have therefore not discharged you, nor shall I do so. In the event of your being again brought up for trial, it is not for me to say what the Government would do with you. I am in this respect only a ministerial officer. I recollect an instance of this kind once occurring at the Middlesex Station, where all the prisoners were tried, and it was afterwards discovered there was some defect in the proceedings what it was I do not immediately remember. The prisoners in that case were all retried, but what was afterwards done with them I cannot say. You will now be remanded, and I shall adjourn the Court till Saturday.

With respect to those that have been tried and acquitted, I think they are entitled not to be put in a worse position then that are. I shall therefore feel it my duty to recommend the Lieutenant Governor to issue a pardon for them, as without that they are liable to be apprehended again. I think it right to add that the Commission being in itself illegal, every thing done under it is illegal also. There is no Attorney General in the Colony, and therefore I cannot deal with any other cases.

Sophia Greenwood was then admitted to bail for her appearance at the next Sessions.

His Honor, before leaving the Bench, thought it right to apprise the Crown Solicitor, that there were other cases against the two men Cobb and Molyneux, who had been discharged.

Montagu J., 3-4 September 1839

Source: Tasmanian, 6 September 1839[2]

Before Judge Montagu and a Military Jury

                        William Cobb and Daniel Molyneaux were jointly indicted for a burglary in the dwelling house of Christopher Bonney and another, and stealing therefrom one cloak, the property of Thomas Bonney, at Richmond, on the 16th July.

Mr. Attorney General Jones conducted the prosecution; the prisoners were undefended.

After examining several witnesses, who clearly identified the prisoners, as the burglars, the Attorney General closed the case on the part of the Crown, when Judge Montagu observed, - there is no proof to whom the house belonged; in the information it is laid as the joint property of Christopher Bonney and another.

Attorney General. - I will recal the witnesses and clear up that point.

Judge Montagu. - I don’t see how I can do that; if so, the Judge will become the prosecutor, instead of the Crown; I would do so with great pleasure, only I don’t think I ought, having come to the resolution, after a case if finally closed, never to put any question which would make the Judge appear in the light of a prosector; the case between the Crown and the prisoner is very distinct; when the case on the part of the Crown is closed, no further evidence can be called, unless the prisoner consents to the case being re-opened, but in the case of the prisoner, at the very last moment, when the Jury are charged, any one in Court may stand up and tender evidence in his favor, which the Court are bound to receive, and this has been the practice from time immemorial.

Attorney General. - I would urge upon your Honor, the necessity of the witnesses being recalled; the prisoners have not been put upon their defence.

Judge Montagu. - I cannot put them upon their defence. I should be as reluctant as you are, if I could consistently do so, to prevent the ends of justice being frustrated; it would be better for any number of parties to escape, than that a rule of common law in the administration of criminal justice should be broken; if it is done in one case, it must be done in fifty; in consequence of a defect on the part of the Crown, it is incumbent upon the Court not to put the prisoners upon their defence. Gentlemen of the Jury, there is no case to go to you against the prisoners, and they are entitled to an acquittal; if I am wrong, there are tribunals before which I can be brought to account for it. There is not a tittle of evidence whose house it was, and it is my duty to direct an acquittal, for which I alone am answerable. Not Guilty.

Here the Attorney General was taken ill, at the bad result of his maiden prosecution, as some people say, and was obliged to retire. The following case was conducted by Judge Montagu.

William Thompson was indicted for a burglary in the dwelling house of James Partridge, and stealing therefrom two rugs and a blanket, at Hobart Town, on the 5th August.

This was a case of the most paltry nature. Not Guilty.

Walter Paisley was indicted for a burglary in the dwelling house of Michael Lackey, with intent &c., at Hobart Town, on the 6th August.

Prisoner had been employed by the Captain of the schooner belonging to Mr. Lackey, and the day before the burglary, he came to Mr. Lackey’s residence, and stated, that he had been discharged by the Captain; Mr. L. said that it was very proper, as he understood that he (prisoner) was a troublesome character; prisoner wanted to claim some wages, but none being due, he was told to go about his business; about one o’clock that night, Mr. Lackey was called by his servant, and upon going into the drawing room, he found the prisoner standing upon the fireplace, covered with soot, evidently having descended the chimney; he was given into custody. Prisoner said, that he had been transported once, and that it was not likely he was going to be transported again; the fact was, that having taken a little liquor, he went to Mr. Lackey’s  house, to get his wages, finding the door open he went in and knocked several times, but receiving no answer, he laid down and went to sleep; after sleeping, he supposed, two or three hours, he awoke, and remembering how he came there he endeavoured to escape by the chimney, when he was found. The Jury found the prisoner Guilty, - and, having been called up for judgment, His Honor observed. - You are a very bad character; your defence is clearly a wicked falsehood, from beginning to end; it is as well to be publicly understood, that every house in the Town broke open at night unless there was something which would call upon the Judges imperatively to mitigate the sentence, would be visited with the full penalty of the law. The legislature, formerly, visited this offence with death; the punishment is now transportation for life, or for a period of not less than ten years, which, however, may be varied according to circumstances; yours is a very bad case, that of getting down a chimney; people cannot fasten their chimneys, and by a construction of law, entering a chimney is as bad, or indeed worse, than breaking and entering any other part of the house; supposing in the dead of night, Mr. Lackey had rushed upon you with firearms and weapons, death might have ensued; you went to the house in the afternoon, no doubt to reconnoitre, and, under the circumstances of the case, perhaps it was a fortunate thing you were not shot. The sentence of the Court is, that you be transported for your natural life.

The Chief Justice having seated himself with Judge Montagu, Robert Parker, the insolvent, was placed at the bar, and the Chief Justice proceeded to address him to the following effect:- Robert Parker, at the last Criminal Sessions of this Court, you were convicted before me, for that after you had been declared insolvent, you embezzled a certain portion of your estate. The information contained three counts, but upon the two last only you were convicted; it is only necessary therefore, that I should direct my observations to them. The second count charged that you having been declared insolvent before 22nd February, did, on the lst March, remove, conceal, and embezzle, certain portions of your estate and effects, with intent to defraud your creditors. The third count charges, that you having, before the 14th February, been declared insolvent, afterwards, to wit on the 13th May, did feloniously embezzle certain other property, of the value of £10, enumerating the articles, and ending, as in the preceding count, with intent to defraud &c. After the trial, several objections were taken by your counsel - one to the information itself, and upon that, whether the offence was sufficiently charged against you, it not being under the common law nor the statute, but under an Act of Council of this Colony. An objection was also taken, that the information does not state before whom you were declared insolvent, and was therefore informal. The constituted officer in this case should have been set forth distinctly, that the Court might have under its notice, all the facts of the case, for these reasons, if a man was indicted for breaking prison, it must set forth for what offence he was imprisoned; in a case of perjury, it must set forth before what Judge or Court the oath was administered, so that it might appear the oath had been administered by a competent authority. Here, for anything which appeared to the contrary, the oath might have been administered by a party who had not the power, and therefore it would not have been perjury. The foundation of your crime is, that you were lawfully declared insolvent, but before what Court, or what Commissioner? The information contains no allegation to that effect, and I therefore think judgment ought to be arrested. You are now discharged out of Court.

Judge Montagu. - I fully, and entirely concur in what has fallen from His Honor, the Chief Justice; on the fact of the information, there are not the facts upon which you have been found guilty, you must be, therefore, discharged. Parker was then discharged.

James Dickenson was indicted for a burglary in the swelling-house of Felix Murphy, and Joseph Abrahams, and Henry Smith, were jointly indicted for aiding, abetting, and assisting in the burglary aforesaid, at Hobart Town, on the 16th July. This case is too fresh in the recollection of our readers, to require repetition. Dickenson was found in Murphy’s house, after having obtained access by opening the front door with a pick-lock, and the other prisoners were on the watch aiding.

During the trial, the commission of the new made Attorney General was brought into Court, upon which Judge Montagu remarked, that from something which had taken place in the Enrollment-office, his attention had been called to the commission of the Attorney General, and from what he had seen of them, having had seven or eight of them in his time, he considered it to be mere waste paper. It was not in the usual form of a commission, as it did not read in the name of the Queen, and was not to be held during pleasure. The question was, whether it was a valid and lawful appointment the case having proceeded so far, I will not stop it, and if the commission is bad, all that we have done is not good, and if the men are convicted, I recommend them to be pardoned.

As a preface to his summing up, His Honor made the following observation upon the same subject. Gentlemen of the Jury, previous to the commencement of these sessions, I did not see, nor did I ask to see the commission of the Attorney General; I saw him acting as Attorney General in other places, and in law, I considered I was bound to take notice of that, if not, I should have referred to the Gazette, which legalises such commission. I did not ask to see it, but the moment it was produced, without looking close at it, I saw there was an error. If I had known this at the outset, I would have adjourned the sittings. The counsel for the prisoners, will have an opportunity of arguing the two points to move - lst. - That it does not run in the name of the Queen, and 2nd. - That it is not a commission at common law, as it is not during the pleasure of Her Majesty, but until the pleasure of the Secretary of State is known.

The prisoners were convicted upon the most clear and indisputable evidence, when His Honor remarked, that they were a gang of desperate and scientific burglars, and it was well for the public, they had been brought to justice. He was sorry for Abrahams, who had been for a long time in the Sheriff’s department, but having been often in Court, he would await him, if he joined these desperadoes; he therefore richly deserved the sentence which would be passed upon them, namely, transportation for life, out of which, they would pass five or seven years in irons at Port Arthur. He should delay passing sentence upon them, until the question of the validity of the Attorney General’s commission was decided, and he hoped for the sale of justice, that it would prove valid, otherwise they must be pardoned.

The Court then adjourned, until Wednesday at 11 o’clock.

wednesday, september 4

Judge Montagu having taken his seat upon the Bench, stated that the Chief Justice was unable to attend from indisposition.

His Honor remarked, that upon the Commission being handed to him, he saw that it was invalid; it was no commission, but an absolute appointment. He was not aware of it, until three men were upon their trial, and he did not think fit to stop the proceedings; the commission was sealed with the seal at arms, instead of the seal of the Colony. One man had been tried and sentenced; he had been improperly tried, but he should not discharge him - perhaps he might be tried again. What the Government would do in this case, it was not for him to say; but some time ago, all the prisoners at the Middlesex Sessions were re-tried, in consequence of an irregularity. He should adjourn the Court until Saturday, and the Government might in the meantime, take his opinion as to the three men who were acquitted, and for whom he should recommend a pardon. With respect to the men, Dickenson, Abrahams, Smith, and Paisley, who had been convicted, every thing in their case was illegal, and he should order them to be remanded. As to Cobb and Molineux, who had been discharged, he would state that there were other charges against them. One of them was a prisoner of the Crown, and the other in the Hospital. He could not deal with any of the other cases, there being no Attorney General, and should adjourn the Court until Saturday.

Mr. Solicitor General Jones acceded to everything his Honour said.

Montagu J., 22 October 1839

Source: Hobart Town Advertiser, 25 October 1839

            William Cobb and Henry Molyneux, were again arraigned on the same charge preferred against them on Saturday. They had been brought up for trial at the Quarter Sessions, where they refused to plead, still persisted in their refusal to plead to the indictment. His Honor said that if they wished to plead, they had been already acquitted for the offence - their plea must be put in on parchment. The prisoners were remanded for their plead.

The men, Dickenson, Abraham, and Smith, for the burglary at the Vine Tavern, and Walter Paisley, for a burglary in the house of M. Lackey, Esq. who had been also tried under the insufficient commission of Mr. Jones, but convicted, were put at the bar, when his Honor told them that he had merely called them up to give them notice that as they had been tried illegally, Mr. Jones not being Attorney General at the time, it was the intention of Mr. McDowell, the now Attorney General, to re-indict them. They could, if they pleased, plead having been already tried, but his Honor was of opinion that such a plea would not be of the slightest service to them. The indictments would be prosecuted to-morrow, when if they intended to plead their former trial, they must be prepared with a written plea to that effect, upon parchment; but his Honor thought if they did so, they would only be told by the Court that the plea was bad, and still have to take their trial.

Dickenson said that on their former trial His Honor had promised them a pardon, in consequence of their illegal conviction.

His Honor had done so, certainly, so far as regarded a pardon for the illegal conviction, but, if they had understood him to mean an absolute pardon for the offence, it never was his Honor’s intention to hold out any such promise. The pardon he had spoken of they should have, if it were of any service to them, but that would only extend to the illegal conviction, and therefore that they would nevertheless be still liable to be re-indicted. - Remanded.

William Seabright stood charged with receiving on the 14th September, 10 lbs of mutton, being partly of the carcase of a sheep, the property of Henry Bilton, then lately stolen, taken and driven away to Glenarchy, he well knowing the same to have been so feloniously stolen.

John Lamph - Knew prisoner; first knew Glenarchy, on the 12th September. On the [???] went to Rogers to a paddock, where there were some sheep; Rogers killed and skinned one and covered it over with boughs. At dusk, he (Rogers) took the whole of the carcase except the head and skin to Seabright’s. There he cut up the mutton with a grubbing hoe, and left part of a shoulder with Seabright.

Cross-examined by prisoner. - I did see you receive the mutton in your own hand; you held the sheep while Rogers cut it in two. You took some of the meat, cooked it and eat it. [This witness who was an approver, underwent a long and rigorous cross-examination by the Court and several of the Jury, in the course of which it appeared that he had been discharged out of custody by the Magistrate, on being made an evidence in the case for the prosecution. His Honor severely condemned this step on the part of the Magistrate.]

Mr. Bilton proved having Leicester sheep running adjoining Reason’s; missed one on the 14th September, and identified the skin. Guilty - Remanded.

His Honor the Chief Justice took his seat on the Bench, and Mr. McDowell moved the admission of Mr. Sydney Stephen, who having taken the usual oaths, was declared duly admitted as a Barrister &c. of the Supreme Court.

Mr. Stephen then put in a plea on behalf of Cobb and Molyneux, pleading they were acquitted before.

His Honor asked the Attorney General whether he would demur or plead.

The Attorney General believed it was the rule to plead.

His Honor said he could take time to consider.

The Attorney General would be ready to-morrow, by 11 o’clock.

This proceeding having been patiently explained to the prisoners by the learned Judge (Montagu), they were removed and the Court adjourned.

Wednesday, October 23

There was but little business done this day. The men Abrahams, Dickenson, and Smith, were arraigned for a burglary in the house of Felix Murphy. Each of the prisoners declined to plead, in consequence, as they said, of having been previously tried, and his Honor directed a plea of not guilty to be recorded for them.

Walter Paisley, charged with a burglarious entry into the house of Mr. Lackey, pleaded his former conviction of the offence. Mr. Stewart kindly undertook to write the plea for him, and he, with the other three was remanded.

The Attorney General demurred to the plea of autre fois acquit, put in by the men Cobb and Molyneux, charged with stealing in the house of the Messrs. Bonney.

Mr. S. Stephen, for the prisoners said, he could not support the plea, as the offence now charged was distinct from that for which they had been formerly tried, but had pleaded merely to satisfy the prisoners.

His Honor gave judgment for the Crown, upon the demurrer, and desired the prisoners to plea over. This they declined to do, and a plea of not guilty was recorded for them.

The Court was then adjourned till 10 o’clock to-morrow, when Cobb and Molyneux were ordered for trial, and after them the others.