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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. M'Dowall [1827] NSWSupC 18

Lord Ellenborough's Act, operation in New Zealand, New Zealand, arrest of judgment

Supreme Court of New South Wales

Trial, 21 March 1827

Source: Australian, 24 March 1827

Dennis M'Dowall stood capitally indicted under Lord Ellenborough's Act, for stabbing one Alex. McLearne.[1 ]  It appeared in evidence that the prisoner was an indented servant to the New Zealand Company - the prosecutor was the same.  On the 29th of last Sept. those two persons were on board the barque Rosanna, lying at anchor about 12 miles up the River Thames, at New Zealand; a dispute arose between the prisoner and a man named Gray, on board the vessel, respecting some working tools; the prisoner struck Gray on the hand, and the latter instantly struck him with his fist in the face; prisoner fell on the deck, on rising he said to Gray he would give him the length of that, meaning a small knife, which he grasped; Gray then doubled his fist at the prisoner; prisoner stabbed him in the breast; Gray cried out murder; the prosecutor in this case called out to some persons who saw Gray bleeding, would no person take the knife from that damned old scoundrel; prisoner then run up to prosecutor and stabbed him with the same knife he had stabbed Gray; he ran towards some New Zealanders who were on the same deck, for protection; prisoner followed, and falling on him, inflicted several more wounds; the surgeon who examined them said they were generally of a slight character, but two of them were inflicted in vital parts, being a little below the lungs, the weapon having come in contact with the bone, prevented fatal consequences ensuing.

Some legal objections were taken to the information by prisoner's Counsel, owing to its being laid under Lord Ellenborough's Act, though the offence was committed at New Zealand.  The Chief Justice put the facts to the Jury, leaving the prisoner, if found guilty, to take advantage of the object (as they appeared on the Record) in arrest of judgment, if it should appear that they were tenable.  Verdict - Guilty.


Hearing, 8 May 1827

Source: Australian, 9 May 1827

Alexander M'Dowall, who was convicted at the last sittings of the Court, upon an information laid under Lord Ellenborough's Act, for cutting and stabbing one M'Larne, on board the ship Rosanna, whilst at New Zealand, was brought up yesterday and discharged.  Judgment having been arrested on a legal objection taken by Dr. Wardell, at the time of trial, and subsequently argued.[2 ]  The Court had taken time to consider of the motion in arrest of judgment, and ultimately acquiescing in the validity of the point raised, the prisoner was ordered to be liberated.


[1 ] The Sydney Gazette reported this trial on 24 March 1827.  It added that "the brig Rosanna sailed from England in the early part of the last year, on a speculative voyage, to establish a settlement at New Zealand."

[2 ] The case was argued on 3 April 1827.  According to the Sydney Gazette, 6 April 1827, the motion to arrest judgment was "on the ground that the operation of Lord Ellenborough's Act, under which the prisoner was indicted, did not extend to New Zealand; that though, as part of the law of England, it had been ruled to be in force in this Colony, still the Supreme Court here had only the power to try such offences committed at the various places enumerated in the New South Wales Act, as would be triable in England, not to create an offence, and put the prisoner in a worse situation than he would be, if tried in England, where, the Counsel contended, this could not have been tried under Lord Ellenborough's Act."  On the legality of prosecutions under Lord Ellenborough's Act in New South Wales, see R. v. Smith, January 1825.

Published by the Division of Law, Macquarie University