[convict escape – stealing in dwelling house – law reporting]

R. v. Britton and others

Supreme Court of Van Diemen’s Land

Pedder C.J., 4 June 1840

Source: Hobart Town Advertiser, 5 June 1840[1]

            George Britton, Peter Jack - Dorkins and George Hall were indicted for stealing in a dwelling house the property of the Queen a cap, a watch, and a knife, the property of Henry Miller, by means of a threat used by the said George Britton, whereby the said Henry Miller was put in bodily fear.

            The particulars of this case are sufficiently detailed in the evidence of the following witness, who, from a peculiar blunt naivete of manner, created much mirth while giving his testimony. It was fully corroborated by Constable Miller, who even went into more minute details. One point of this man’s evidence was, that Britton wantonly cut him with a knife, on the wrist in the attempt to force handcuffs upon him; he showed a scar to the jury, who thought the wound had most probably been inflicted in an attempt to cut a cord with which his hands had been previously fastened. It also appeared by Miller’s evidence that Hall protested against taking the watch, and twice prevented violence.

            William Harold, signalman at the half-way Bluff, - On the night of the 30th April. I saw all four of the prisoners about twelve o’clock; I first saw Jack and Hall at the gate of the hut yard. I was alongside the constable Henry Miller, at the hut door; Miller said to the men “Stand!” he had a piece. The men said “For God’s sake don’t shoot us - we are two poor men absconded from the mine - we are pursued by the military, and are come to give ourselves up to you.” The constable ordered them to stand on one side, and went out with his piece, I standing at the door. The two men came up the steps and into hut; the constable was coming up the steps behind them, when the other two prisoners, Dorkins and Britton ran from behind the water cask which was beside the hut door, took hold of the constable’s piece, and throw the constable down in the hut. I was standing a little distance from the door. Peter Jack ordered me to stand, and took a stick and held it over my head, saying if I moved he would knock the brains out of me; I moved to the fireplace, and stood there. The constable said to me - “Take the piece.” He was struggling on the floor with the two prisoners, and had the piece in his hand. I told him I could not take it. Peter Jack ordered me into the cell I went in. Britton had then got the piece Dorkins said - “Hand it over to me - I’ll blow the first men’s brains out that attempts to move.” Britton gave the piece to Dorkins who put it on full cock Britton went to the watch that was hanging over the constable’s hammock, and took it down. Dorkins said - “There’s a knapsack - take that and put the things you’re going to take away in that.” Peter Hacks broke open the box with a hammer. Britton went to a snuff box, and saying “we’ll have this.” But it in the knapsack. Whilst  they were plundering the hut, I peeped out of the cell;’ Jack took up a stick, and said to me ‘Put your head in, will you.” Dorkins took down a pair of handcuffs, threw the constable down, and Hall and Britton put them upon his hands; he screeched out. After they had taken provisions, Britton said to the constable - “We hear you’ve got a body belt on your body, and we want it.” The constable then ran and struck Britton with both hands, handcuffed as he was, and below out the light. He then ran and said to me - “Pull off the body belt;” I did so, and put it under my bed. Croft said - “I’ll give you a light,” and a light was brought. Britton saw the belt, and said he would take this upon suspicion. When the constable was going into the cell, Dorkins presented the piece at him, and said he would blow his brains out, when Hall threw up the piece, and said “there was no necessity for anything of that kind.” After plundering the hut, the prisoners bolted me, the constable, and Croft, in the cell. As they went away, the constable said - “You’ve taken my watch”. Hall said - “No - on the word of a man your watch, money and piece shall be returned to you; the notes are under a pot, and the watch is here;” and tried to put it through the window, but he could not do so. I asked him to let me out, but they would not - I did not see the prisoners again till I saw them at Port Arthur some time afterwards. I am sure these are the four men.

By the Court. - I saw nothing in Britton’s hands when they put the handcuffs on the constable, except a hammer, with which he struck the constable; I saw no knife in his hand; the men’s faces were black and dirty; not as if done for disguise. There was once an alarm that the military was coming; the constable screamed out; Hall said “hold your tongue what are you hollowing about;” Dorkins had the piece levelled at the door and said “the first men that approaches shall fall;” Britton took the constable’s cap and wore it.

By Dorkins. - You did not threaten me; only you said if I came out of that you would let drive at me.

By Hall. - I know you by your height; your carroty whiskers and your voice; you tied my hands and said several times that you did not want to hurt me.

By a Juror. - I don’t know that it is usual to put a piece to the shoulder; I never fired a piece off in my life.

John McDonnell, a constable at Tasman’s Peninsula - Knows all the prisoners. On the 30th April they were all employed as laborers at the Coal Mines; I saw them at 1 o’clock when I mustered them out; I missed them about ½ past 8; I did not see them again until the 9th of the following month. The hut where Miller lives is about six miles from the mines.

George Rowe. - A constable stationed at East Bay Neck proved the apprehension of the prisoners on the 5th May at the Boat Harbour, on Tasman’s Peninsula; they were making a raft; this cap was taken from Britton; this knife and this bayonet were on the raft. [These articles were identified by Miller.]

His Honor in summing up begged the Jury to state whether they found that Britton had really been guilty of the brutality attributed to him by Miller, and ungenerously alluded to by the Attorney General in opening the case. Bad as the conduct of Britton might have been, His Honor could not believe it possible he would be guilty of such brutality as to attempt to cut a man’s wrist smaller because he could not get the handcuffs on him. The other witness Harold saw nothing of the kind, although he heard the constable scream out. Under these circumstances he begged the Jury to state whether they were satisfied on this point. He would not for the world that such an accusation should go forth against a man unless it was well founded.

The Jury after a short consultation returned with a verdict of guilty against all the prisoners. After it was recorded the Foreman said “the Jury were of opinion that the cut inflicted on the man (Miller’s) hand must have been accidental;

His Honor was very glad to hear this was the opinion of the Jury.

The Prisoners were remanded.

Source: True Colonist, 5 June 1840

            The Criminal Sessions of the Supreme Court opened on Tuesday, and afforded another instance of the negligent manner in which the criminal business of the Colony is conducted. The subpoenas for the witnesses were not put into the hands of the constables, for service, until Sunday. On Tuesday, John Bryan was tried for burglary in the house of Mr. Lascelles at Millbrook, near New Norfolk; he was a runaway from the public works; he entered by a lattice window which has been previously broken, and, being alarmed, made his escape by forcing open the front door, taking with him a quantity of clothes which he had stolen from the house. He was indicted for breaking into the house, and of course acquitted, the evidence shewing that he had not broken in, but that he had in reality broken out, which would have been equally a burglary, had it been properly laid in the information. This case cost the Colony upwards of £40. The man is already prisoner for life, and had he been convicted, his punishment would still have been another sentence of transportation for life.

            We had yesterday a similar instance of the expense to which the public are put in trying prisoners for life, who, when convicted, can only be placed in the same situation as they were in before they committed the offence for which they are tried. Four men - Britton, Dorking, Jack and Hall, were tried for a robbery committed at one of the out-stations at Port Arthur, on a constable who was stationed there. They used him very cruelly, and took all his money £19, and several other articles from the hut. They bound both the constable and signal-man who was stationed with him; besides binding the constable with a cord, they handcuffed him. Britton first knocked him down by a blow on the knee from a heavy hammer, with which he afterwards struck him on the head, and would have repeated his blows had he not been prevented by Hall, who also prevented Dorking from shooting the constable by order of Britton, Hall having knocked up the barrel of the gun when it was levelled at him. Hall, before leaving the place, restored the constable’s watch which Britton had taken from him, and behaved in such a manner as to entitle him to the merciful consideration of the Court. They were all found Guilty. Britton was indicted, with the others, for stealing in the dwelling-house of the Queen; but, in his case, and in the same count, he was farther charged with using menaces and putting the constable (Miller) in fear. It occurred to the Chief Justice that some difficulty might arise in passing judgment, as two very different offences were charged in one count against the same individual, and also against different individuals; and he was very anxious that some gentleman of the bar should argue the case on behalf of the prisoners. The Attorney General said that all the gentlemen at the bar were too busy for that; he was obliged to postpone, until next sessions, a criminal information, which he had filed against a gentleman for an assault on a public officer, because the defendant could not obtain counsel, the Government having refused a license to the Solicitor General to appear for him against the Crown. He next applied to Mr. Horne, who was too busy to study the case this term, and then to Mr. Anstey, who was out of town. How did the Attorney General happen to forget his learned friend, Mr. Fielding Brown, Mr. “Barrister” Stewart and the Crown Solicitor, as there does not appear to be any objections to his defending cases against the Crown, for we have frequently seen him successfully defending prisoners in the Supreme Court; and we do not believe that either of the three are engaged in many of the civil cases to be tried this sitting of the Court. Probably when made acquainted with the wish of the Chief Justice, one of them will volunteer his service.

The case to which the Attorney General referred, was the “Attorney General v. Espire,” the Director of Public Works, Captain Cheyne, when that officer went to examine a road claimed by Mr. Armytage, which Mr. Espie had shut up. We consider it to be cause of regret to the public, as well as to Captain Cheyne and Mr. Espie, that this case was not decided in the present sittings. The public are of course most anxious to know how the law stands, with respect to the power of the Government to open roads in any part of the Colony, or to remove obstructions, placed upon the roads by the individuals through whose lands they pass. Captain Cheyne is naturally anxious to know the extent of his authority, as Director of Roads, that he may not again expose himself to the repetition of similar assault and insult, in what he conceives, at present, to be the proper discharge of his duty. Mr. Espie professes to be disappointed at the delay, because he says the result would prove that he was justified in turning off the Director General; and that it will afford him grounds for a civil action, for the trespass which he was resisting, in the assault for which he is prosecuted. This is certainly a very fine state of affairs, as respects the public and individual settlers - and a most enviable situation for Captain Cheyne to stand in, as a public officer, to have to fight his way, when he goes on duty. The refusing the Solicitor General a license to defend Mr. Espie, is, we presume, the first fruits of our exposure of the evil consequences of allowing the Crown lawyers to take up private cases, in which the honor or the interest of the Government may be compromised. We cannot but acknowledge this, as complimentary to our exertions for the public interest - this being the first instance of a refusal of the sort. But we regret, that the occasion had not been better chosen; and we think, that it is to be regretted, on account of the Government, that the style of the letter, in which the refusal was conveyed to Mr. Jones, should have been publicly talked of as matter of congratulation by his enemies, before the letter reached that gentleman - at least certainly before he could have communicated its contents to Mr. Espie’s attorney. This looks very bad in some official quarter. It is most probable, that we shall be able to trace it; and, so sure as we do, we shall expose the guilty parties. We have no opportunity of learning what was the real tenor of the letter; and, after all, it is possible, that the alleged and boasted secerity, was a mere fabrication of persons who would wish to have it so.

Pedder C.J., 6 June 1840

Source: Hobart Town Courier, 12 June 1840

            The Chief Justice on coming into Court addressed the Attorney-General, in consequence of a letter he had received from him in reference to the case of Britton and others, and denied that he had ever made use of the word ‘ungenerously,’ as stated in the Advertiser, or any other words amounting in substance to that, or that he had ever stated to the jury or thought that the Attorney-General had stated in his address that which he did not believe to be true. The statement made by the Attorney-General, he distinctly understood from the reference to the bed of Procrustes, to mean that the man’s wrist had been cut smaller to admit of the handcuffs being put on - the statement filled him with such horror as he could not express except in the strongest language, and he did state to the jury, that bad as the conduct of the man, Britton, might be, he could not conceive that any Englishman could be guilty of such conduct, and he begged the jury to tell him whether they thought so or not. They had found the cut was accidental. On looking at the depositions, he perceived that the man, Miller, did say that ‘he was cut with a knife in order to get the handcuffs on.’

8 June 1840

Source: Hobart Town Advertiser, 12 June 1840[2]

            George Britton, for the robbery of Miller’s hut, at the Half-Way Bluff, received sentence of Transportation for Life.

            The Attorney-General entered a nolli prosequi in the case of the other three, Dorkins, Jack, and Hall, and they were handed over to the proper authorities.