[piracy, high seas – criminal procedure, application for postponement – Legislative Council, power to enact and repeal – Legislative Council, invalid Act of – nolle prosequi – capital punishment, abolition of]

R. v. Jones, Riley, Carr, Guire, O’Neil, Mason, Balfe, Donnell, Tisdale, Gaynor, Short and Farrell

Supreme Court of Van Diemen’s Land

Montagu J., 5 September 1842

Source: Hobart Town Advertiser, 6 September 1842[1]

            The court opened at 10 o’clock, pursuant to adjournment, for the purpose of hearing the arguments of the Crown Lawyers, with reference to the trial of the prisoners, who had been indicted for piracy on board the “Isobella Watson,” on her passage to this Colony, and whom his Honor, Mr. Justice Montagu did not think could be tried, for the capital offence, under the Colonial Act of Council.

            The following individuals were then placed at the bar.

            Richard Jones, John Riley, Andrew Carr, William Guire, James O’Neil, Charles Mason, Richard Balfe, John Donnell, Andrew Tisdale, William Gaynor, John Short, and James Farrell, who were indicted for piracy on the 27th of May, 50 leagues from the Island of Feroe, on board the “Isabella Watson,” of whom Charles Russell and James Raeburn were the owners and McDonald was master.

Before the jury were sworn, Mr. McDowell, who appeared for all the prisoners, applied to the Court for a postponement of the trial, on the ground of the absence of certain material witnesses. The application was based upon affidavits from Mr. Capon, Mr. D. C. Brice, and the prisoner Jones. That Mr. Capon stated, that on the 19th of August, he first knew that a Bill was found against the prisoners; and having heard previously from Jones, that certain witnesses were material for the defence, he, Mr. Capon, applied to Mr. Sorell for subpoenas, which were accordingly granted, and which were given to Mr. D. Brice to serve on board the “Isobella Watson;” upon Major Macpherson, the Surgeon Superintendant, and two Sergeants, Farr and Hill; that D. C. Brice stated, that he went on board the “Isobella Watson” , then underweigh for Sydney, served a subpoenas on a solder, named Darby, who was censured for answering to his name, and that, in endeavouring to serve Major Macpherson, and the serjeants, he was repulsed by a soldier with a drawn sword, but that he succeeded in leaving the subpoenas, on the cuddy table. Jones’s affidavit contained the names of the witnesses, and had appended to it a statement, containing the grounds of the materiality of their evidence.

His Honor observed, that if the parties, who had obstructed him, could be identified, he would order an attachment against them, so that they might answer the charge, in custody, before that court. His Honor asked Mr. McDowell, why he did not obtain a warrant against them?

Mr. McDowell said, that he did not know of the circumstance, as he was not retained till the next morning, when the Sev. Mr. Therry applied to him to defend the prisoners.

            The Solicitor General said, that if the evidence of the witness mentioned was material, he should be well leased to see them in that court to answer for their conduct.

Mr. McDowell said, that the evidence was most material.

His Honor; if this be so, I hope the matter will not rest here, but will be transmitted to Sydney, that the parties may be tried by a Court Martial. I have a right to assume, that it is not true, for I can hardly believe that any officers in her Majesty’s Service could act in such a manner, in a matter affecting the lines of the prisoners. (To Mr. Price,) Did the prisoners tell you Mr. Price, that the evidence of these persons was material? Mr. Price. They did not, your Honor, the surgeon was examined, but he stated nothing material.

            The Solicitor-General stated, that if the evidence was material, and if there was any probability of getting the parties before the court, he should offer no opposition to Mr. McDowell’s application, this however, ought to be shown by the other party, and there was nothing on the face of the affidavits to show this.

            His Honor said, that where a Council undertook to say, that the evidence was material, the Court would take it for granted; had the prisoners had no Counsel, the materiality would have to be shown.

The Solicitor General would not in that case, offer any opposition.

            Mr. McDowell hoped his Honor would, if he had the power, allow the same intelligent panel to try the prisoners, in case the trial was postponed.

            His Honor was not inclined to postpone the trial; there were three things to be shown, for this purpose, for the consent of the crown was no ground for the postponement. First, the materiality of the witnesses - for this, the Court would trust to the prisoner’s Counsel, 2d. Their absence from the colony. And 3rd. unreasonable probability of their return, to give evidence. In this latter, the Counsel had failed, and unless this was made out, the prisoners were not entitled to have their trial adjourned. His Honor was surprised, after Brice’s testimony, to find that the ship was not detained, either by a warrant from one of the Judges, or the interference of the Government. It was the duty of all military officers to aid and assist in the administration of justice, especially in capital cases. If the facts are as stated, although His Honor hoped they were not, he should take care that the matter should not rest where it was; he should represent  the case to the executive, with a view to have the parties indicted for a conspiracy, for although they were out of the immediate pale of the Court, they were not beyond the reach of the British dominions, and while they were not so, His Honor said he would leave no stone unturned to punish them for their conduct; he would transmit the case to Sydney, and even to India, in order to obtain an explanation, and if the circumstances were true, he would have them punished, so that this colony should have justice meted to it, however tardy. The prisoners were placed in a hard situation, but he could see no probability of the witnesses being brought here in an reasonable time.

            His Honor hoped that the Solicitor General would represent the case to the Attorney General.

            The jury empanelled His Honor stated that he did not know how to charge the prisoner.

The Solicitor General replied, that by the statute 11 and 12 of William III, the offence with which the prisoners were charged was made punishable by death; subsequently to this, by the lst of Victoria, the capital punishment was taken away, and transportation for life substituted. The provisions of this act had been extended to this colony, so that if the prisoners were convicted, their punishment would be transportation for life; the offence was the same, but the penalty different.

His Honor. - That act of Council was not law; the Council had no power to pass laws affecting crimes committed on the high seas; so far as that was commenced, the act was but waste paper. His Honor’s opinion was, that the punishment was death; the act of Council was valid, as far as its repealing power went - but invalid, as regarded its enacting power. His Honor should charge the jury accordingly, and give the prisoners the benefit of the error, and recommend them to be pardoned.

The jury was then sworn, and the Solicitor General briefly addressed the jury, explaining the laws of the case, from the 9th section of the statute of the 11 and 12 of William III, and by which he makes an endeavour to make a revolt on board a ship was accounted piracy.

John Gourlay, the 2nd mate of the Isabella Watson, having been asked two or three questions, the Attorney General came into Court, and after a short conference with the Solicitor General, intimated his intention of entering a nolli prosequi.

His Honor ruled that such a course could not be pursued, in capital cases, after the trial had commenced; the jury had been charged with the deliverance of the prisoners, and they were bound to deliver them.

The Attorney General, declining to call any witnesses, the prisoners were accordingly acquitted.

Before the prisoners were removed His Honor desired them if they were brought to trial again before any Magistrate for that offence, to send to him wherever he was, as he would not permit any person to be tried a second time, for an offence, of which he had been acquitted in that Court. His Honor, also intimated that it was fortunate for the prisoners, that they had not been convicted, as the offences they contemplated was most dreadful and diabolical; it was alleged, that the whole was a plot, got up against the prisoners; it was in evidence however, that they intended to tie the Surgeon and the Captain together, and throw them overboard, and then take the ship.

Richard Jones gratefully thanked His Honor for his kindness to the prisoners generally. His Honor replied, that he did not deserve their thanks; he had but done his duty.

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