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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Swadling [1841]

stealing - false imprisonment

Supreme Court of Van Diemen's Land

Montagu J., 5 April 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

10 April 1841[1]

            Thomas Swadling was indicted for stealing poultry, the property of Mr. Forbes of Westbury. This prisoner, it appeared, had been eight weeks in gaol at Westbury on the charge, during which time he had been examined only once. The Attorney General stated that he had received the depositions only on Friday last; and Mr. Thompson, the gaoler, observed that prisoner was only committed a day or two since. His Honor, very properly condemned so abominable a proceeding, and told the Attorney General that if he allowed such conduct on the part of the committing magistrate to go unpunished, there was an end to all protection of life, liberty or property. His Honor directed the Clerk of the Court to write to Mr. Moore, the committing magistrate, to accompany a summons for him to appear before the Supreme Court on Thursdays morning; but on Tuesday, on the prisoner being called up for judgment (the jury having found him guilty on the evidence of Mr. Forbes), His Honor said, that, having some doubts about the form of summons, the Clerk of the Court had not written to Mr. Moore; but he trusted the Attorney-General would enquire into the matter, and if he found that he could not give good reasons for having kept prisoner two months under examination, he would cause him to be severely punished.

Montagu J., 5 & 8 April 1841

Source: Hobart Town Advertiser, 16 April 1841

            Thomas Swadling was charged with stealing two fowls; the property of W. Forbes.

William Forbes. - I keep a public house at Westbury.

Attorney-General. - Do you recollect seeing the prisoner some time last week?

Witness. - No, not last week, some time in February.

Attorney-General. - Why, I only received the deposition on Friday last.

The prisoner then stated that he had been for eight weeks under examination, and had only been brought up once before he was committed.

Mr. Thompson also stated that the prisoner was only committed a day or two since.

His Honor. - Well, Mr. Attorney General, all I can say is, if you allow such proceedings as these on the part of the magistracy to go unpublished, why then there is an end to all protection of life, liberty or property.

Some further conversation ensued, and it was agreed that Mr. Moore, the committing magistrate at Westbury, should be summoned to appear before the Court on Thursday morning.

The clerk of the Court was directed to write to Mr. Moore explaining the cause of his being summoned.

The case then proceeded.

Mr. Forbes deposed to seeing the prisoner wringing the necks of two fowls, his property; asked him where he got them? He said that a horse had killed them in the stable.

This was the only evidence, the jury found the prisoner guilty.

Thomas Swadling, convicted of stealing two fowls, the property of Mr. Forbes, was brought up to receive sentence.

His Honor said that the clerk of the court had not sent a summons to Mr. Moore, having doubts about the form (see report of the case). However, he was sure the Attorney General would enquire into the matter, and if it appeared that Mr. Moore had kept the prisoner for two months under examination, contrary to his wish, or without any reasonable grounds, he was sure he would be severely punished.

The Attorney General said he should certainly enquire into it.

His Honor then sentenced the prisoner to a month hard labour, taking into consideration the two months imprisonment he had already received, and not having his police character, and knowing nothing to the contrary, he must consider him as a free man. - Had he known him to be a prisoner, he would have transported him for seven years.

Notes

[1]              See also Launceston Advertiser, 8 April 1841.  According to AOTSC 41/5, p. 70 the defendant was Thomas Swadkin.

 

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