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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Clare and Munday [1841]

highway robbery - drunkenness - witness, failure to call

Supreme Court of Van Diemen's Land

Montagu J., 21 April 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 23 April 1841[1]

            After the names of the jurymen summoned had been called over, His Honor informed them that it was their duty to remain in attendance till the Sessions were over; gentlemen were in the habit of retiring after the first jury was impanelled, but this was not allowable, and His Honor should certainly in future impose a fine upon whoever might be absent, unless he had the permission of the Court.

            George Clare and John Munday were indicted for a highway robbery at Pontville, on the evening of the 16th of February last, and for stealing from James Macinroe four one pound notes, his property.

            James Mcinroe lived at the Board Marsh in February last; knew Davis's public-house at Pontville, and had been drinking there on the day named in the indictment; both the prisoners were there, and in witness's company; they left Davis's house about 9 o'clock, and when about 100 yards off the witness was knocked down by Munday, when Clare "gnawed" the money out of his hand; there was about 15s. in silver and four one pound notes of the Van Diemen's Land Bank; witness called out, but Munday put his hand upon his mouth; Mr. Davis came with a light, when the prisoners ran away; could not tell how long he was down before Mr. Davis came.

            By the prisoner Clare. - The witness was examined as to the manner in which he had spent his time on the day mentioned, when he elicited that Macinroe had been drinking at Burnip's and Crawn's, as well as at Davis's.

            By Mr. Sydney Stephen, for the prisoner Munday. - On the morning of the 16th February witness had been drinking at Burnip's, where he might have stayed two or three hours; witness went there about ten o'clock in the morning, and left about five in the afternoon, seven hours; he was in and out all that time; he went to Crawn's also; and drank there; wherever he went he liked the best liquor, and generally takes enough of it ! (a laugh,) witness was not drunk nor a bit the worse for liquor; the night was not very dark.

Mr. John Davis. - Is the landlord of as inn at Pontville; recollects the prosecutor Macinroe coming there on the 16th of February last; he came a short time before nine, and staid ten or twelve minutes; the two prisoners and a female came with him; the female called for half a pint of rum and two bottles of ginger-beer, for which the prosecutor paid, saying he would treat them; witness could not let the prosecutor stop in his house, as he was very much intoxicated; he served him however with a gill of brandy, and he left with the female and the two prisoners; about half-an-hour afterwards witness saw Macinroe lying in the high-road, bleeding from the head and with his eyes nearly knocked in; witness heard a cry of help! murder! loud at first, but fainter afterwards; being frightened, witness went for a Constable, and saw Mr. Hunt, the Chief District Constable of Brighton, who accompanied him to the spot, where they found the prosecutor in the manner described; Macinroe knew witness, and exclaimed, "thank God, Mr. Davis, you have come to my help; I have been robbed and nearly murdered;" there was a female standing by, whom witness directed his ostler to stop; this was the same female who was with Macinroe and the prisoners in his (witness's) house.

            Cross-examined by Mr. Sydney Stephen. - The prosecutor came back to Davis's house, but did not tell witness who had robbed him; he accused another man, a lodger at witness's, whom he mistook for George Clare, but afterwards acknowledged his mistake.

            Mr. Henry Hunt, Chief District Constable of Brighton, deposed that the prosecutor on the night in question was not sober, but the worse for liquor; he told witness who had robbed him.

George Weatherell, ostler at Mr. Davis's, also stated that the prosecutor was the worse for liquor when he was at his master's house on the 16th of February, but he walked back with witness and his master to the house quite steadily, and recognized Mr. Davis; was quite sore that he recognized Mr. Davis.

This was the case for the prosecution.

George Clare, in his defence, declared that he was in bed on the 16th of February before eight o'clock; and that the prosecutor had been drinking about Brighton for three days; a witness named Kirwan stated that he slept with Clare that night, and that he, Clare, was in bed before half-past nine that evening. Another witness, Thomas Hinds, deposed that he had brought the prisoner some warm water between seven and eight o'clock to bathe his knee; this was at Burnip's where the prisoner lodged, and where the witness was at the time a servant.

Mr. Stephen contended for the prisoner Munday, that the whole case depended entirely upon the credibility to be attached to the testimony of the prosecutor Macinroe, and the learned counsel animadverted, at some length, upon the improbability of the transaction, pointing attention to the inform state of the prosecutor, and the want of any necessity for using violence for his robbery; as to Munday, he would call a witness who passed the night with him at his, Munday's house, on the evening stated in the indictment.

William Macdonald stated, that he saw Munday come out of Davis's house on the evening in question; he, witness, was at the time talking to an acquaintance; he however followed the prisoner, who had not got out of his sight, and overtook him about half a mile on the road, leading towards the Black Brush; witness walked home with him, and found his wife and a young man at his (the prisoner's) house.

Cross-examined by the Attorney-General. - It was about 8 o'clock when Munday came out of Davis's public house. Witness was speaking to a man named Curtis, and about 10 minutes after Munday left Davis's, witness went after him along a bye-road, which led along level ground to Munday's residence; a woman came out of the house with Munday and went on the road with him; but was not with him when he, witness, overtook him; witness could not tell when the woman left Munday.

William Browne, of the Black Brush, (the young man mentioned by Macdonald) corroborated the statement about Munday's arrival at his house, accompanied by Macdonald. In reply to a question from the Attorney-General, this witness said that it was after 8 o'clock when the prisoner and Macdonald arrived, and that Munday's house was about 3½ miles from Davis's; to His Honor Browne stated, that Munday did not leave the house while he was there, which was about half an hour after Munday came home.

Mr. Davis was re-called by His Honor, and examined with great minuteness as to the most particular points of his evidence, and especially as to the time when the prosecutor and his companions were at his house; he stated that he knew they left a few minutes before 9 o'clock, as he took out his watch as they were going along the passage; he was not certain which way they went, but was quite certain that both the prisoners were the men that went with the old man (Macinroe); witness had known the prisoners for some time, especially Clare. He saw some silver in the prosecutor's hands, wrapped up in one or two notes; the prisoners were standing close by at the time the prosecutor paid him (Davis) half-a-crown, and might have seen the money. It was full 20 minutes after the party quitted the house when witness heard the cries for help; and it was just 10 o'clock when they got the old man washed and put to bed. Mr. Davis met Mr. Hunt on the New Bridge, and as they were going towards the spot whence the cries seemed to proceed, Mrs. Davis told Mr. Hunt that she had heard footsteps in another direction, when Hunt immediately proceeded in that direction, while Davis and his ostler, went along the road to the place where they found the prosecutor; the same woman who was with them in witness's house was standing by, and on attempting to get away she was taken into custody. When the witness went up to the prosecutor, he, Macinroe, told him that the prisoners and Mrs. Whitbread had robbed him; witness lifted him up and found his head and hand bleeding, and his eye bruised; Macinroe walked back without any help, but seemed stupid; he said after he got into the house, "Thank God! I am safe under your shelter; for God sake give me a bed, for I've got no money!" Macinroe knew the persons about him perfectly well.

Mr. Hunt, recalled, stated that he apprehended Clare on the 18th, after Macinroe had made his deposition at the Police-office on the afternoon of that day.

The prosecutor was likewise recalled and examined as to the possession of the money; he stated that he had known Munday from a child, and Clare for eleven years; he met them both at Burnip's, where they were drinking for two or three hours before they came to Davis's; Munday hit witness on the head with a stone.

His Honor in summing up, addressed the Jury at great length, recapitulating the whole of the evidence. After a well-merited eulogium upon the services of the Military Jury, His Honor stated that he deemed it to be his duty to go over the evidence verbatim, which he was not accustomed to do under the former system, as he was in the habit of seeing the same Jurors continually in the box; to the present Jurors, however, he was a stranger, and he should therefore, pursue the plan of reading over the evidence. His Honor then reserved a point, should the prisoners be convicted, as to the proof of the promissory notes. No testimony had been offered on this point, and he should give the prisoners the benefit of the discrepancy. Upon the absence of the female Whitbread, His Honor passed some severe observations, for she ought to have been forthcoming, if not at the bar with the prisoners, as an evidence in the case.

The Jury retired for about ten minutes and returned a verdict of - Not Guilty.

His Honor enquired whether they found the verdict in consequence of the absence of evidence as to the promissory notes? The foreman, Mr. Carter, replied in the negative.

The prisoners were then remanded in order to have another information filed against them for the capital offence. His Honor observing, that he should not have hesitated two minutes in convicting them, especially Clare, who was a noted bad character, and had come to this colony for robbery.

Pedder C.J., 2 June 1841

Source: Hobart Town Advertiser, 4 June 1841[2]

Mary Whitbread, whose name was mentioned in the reports of the last sessions, as being that of the woman in company with Clare and Munday, when they robbed and old man near Brighton, was acquitted of the charge.  The same evidence was elicited as on the trial of the two men above mentioned, and before the case had been gone through, the foreman, in the name of the Jury, said they were satisfied of her innocence, and the verdict "not guilty" was recorded.

Notes

[1]              See also Hobart Town Advertiser, 23 April 1841; Austral-Asiatic Review, 27 April 1841.  According to AOT SC 41/5, p. 72, Clare and Munday were discharged by proclamation.

[2]              See also Austral-Asiatic Review, 8 June 1841. According to AOT SC 41/5, p. 75 the defendant was Ellen Whitbread.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania