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R v Laurie [1826] NSWSupC 3

stealing - larceny by bailee - mens rea

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 18 January 1826

Source: Sydney Gazette, 23 January 1826


John Laurie was indicted for stealing a boat, the property of William Ternan, at Sydney, on the 2d of June, 1824.

The Attorney General[1 ]stated the case.  The charge against the prisoner was for stealing a boat, so long back as June, 1824.  The circumstances under which it was taken, would perhaps raise a point of law for the consideration of the Court, as to whether, supposing the original intention of the prisoner, in possessing himself of the boat, to be innocent, whether the subsequent wrong conversion constituted merely a trespass, or a felony, as charged in the indictment.  The boat, which was the subject of the prosecution, was hired by the prisoner and others for a day, and was not returned until forcibly taken possession of by a person, not the owner, but having his authority.  It was for the Jury then to consider, whether the original taking, under all the circumstances which would be brought before them, was innocent; or whether, at any time after, supposing the first taking to be innocent, there was an improper conversion.  On the 1st or 2d of June, 1824, a person applied to the owner to have his boat for a day, and on the following morning some persons, among whom was the prisoner, came and took possession of it, with every appearance of preparation for a day's excursion in the harbour; but, in place of being applied to the avowed purpose for which it was obtained, it was shortly after used in getting water on board a small vessel called the Fame, which lay out at some distance in the harbour.  The water was all got in by the evening, and on the following morning the vessel set sail, towing the boat at her stern, and which was no more seen until subsequently found in the possession of the prisoner at Two-fold Bay, a considerable distance on the south coast of New Holland.  The sloop itself was regularly cleared out for Newcastle, which circumstance clearly demonstrated a fraudulent purpose, as it would be shewn that she was not driven to the situation where she was found; and that, in fact, there was no intention whatever of proceeding to Newcastle.  There were other circumstances also, which would serve to mark the nature of the transaction; the owner's name, which had been painted on the stern of the boat, had been erased, and the cargo which had been put on board the Fame, under pretence of goods for Newcastle, was in reality stores for a sea voyage of some considerable length.  These facts would be proved by the testimony of witnesses, against whom no objection could be raised, and also by others, which the Jury might think were involved in the transaction, but they would however be obliged to receive in evidence, and listen to it only so far as it should be supported by testimony, against which there was not taint.

Mr. Robert Crawford deposed, that an application was made at the Secretary's Office, for a clearance for a vessel called the Fame, on the 19th of May 1824, which was obtained.

Cross-examined by Dr. Wardell - An application for a clearance to proceed on a coasting voyage, is granted as a matter of course; it is directed to another officer, who makes the necessary examination and muster on board.

William Ternan deposed, that he lived in Sydney, and keeps boats for hire; on the 1st or 2d of June, 1824, in the afternoon, a man named Oldfield came to witness, and hired a boat from him to go shooting in the harbour on the next day, and for which witness received two dumps, which was the regular hire; on the following morning Oldfield came, and witness delivered to him 2 oars, and carried the others himself, and proceeded with him down to the shore where the boat lay, in Cockle-bay; the prisoner was there waiting with 2 others and his son; he entered into conversation with witness, and said to him "old man, that's a fine boat of yours, have you got the dumps?"  Witness observing that the party were well dressed, said to Laurie that he had better take one of his (witness's) men to pull, when Laurie replied there was no occasion, as they would be back by seven o'clock.  The prisoner and his son, Oldfield, and a man witness did not know, then went down the harbour in the boat, which witness did not again see until November, when she was brought up to Sydney by Captain Griffiths, and restored by him to witness, upon paying £2.

Cross-examined. -- Oldfield hired the boat the preceding day; there were sails to the boat, which he left behind, upon witness telling him that the wind was contrary; witness has mentioned the circumstances to Mr. Wentworth, to Captain Griffiths, and to the sailors belonging to the Glory; has never mentioned it to any one else, except merely saying that he had lost his boat; witness gave a history of the transaction in the Paper, which he thinks corresponded with what he has now stated; never said to any person that it was to Oldfield alone that he had hired the boat, and to him only would he look for her return; never said to any one that all he looked for was for the hire of his boat while she was away, and that he did not think she was stolen; never told Laurie himself, nor any other person, that he did not think he had any thing to do with taking away the boat; Laurie did not hire the boat at all, it was delivered to Oldfield, and the oars were handed to him; witness would have given it to Oldfield if Laurie had not been there at all, and would have looked to him for it; Laurie said they would return at 7-o'clock, but persons do not always return to the time; many causes might prevent them; witness would not have though [sic] any thing if they had only staid away a day beyond their time.

Richard Stewart alias Green, deposed that he was one of the party who proceeded in a boat belonging to the last witness, from Cockle-bay, on the 2d of June last; heard Laurie ask Oldfield if he had given the money to Ternan for the boat; the Fame was lying near Garden Island, when they proceeded on board; Laurie sent the boat off in search of water, and it did not return until the following morning, when they set sail about 9 o'clock; they made towards the Southward; the wind was contrary, but they might have made Newcastle in three days; the boat was towed at the stern of the Fame; it had the owner's name painted on it, which was defaced by Apsey while Laurie and Oldfield were below; Oldfield was angry when he perceived the name had been erased, and told Apsey it was very wrong as it was another man's boat; Laurie only laughed; they lay in Two-fold-bay four or five days before Captain Griffiths took them in charge; he asked whose boat it was, and Laurie said it was his.

Cross-examined. - Witness has been sentenced to Port Macquarie for three years for his share in the transaction; is a prisoner of the crown; their intention was to escape from the Colony.  Laurie never endeavoured to persuade Apsey to go to the Northward; Apsey was captain of the Fame; witness has been King's evidence before; the intention in getting the boat was merely to procure water, and then to return it by Laurie's son; when they got to the heads Oldfield requested that Laurie would then send back the boat as it was previously agreed, which he refused, saying that his son should go the voyage with him.

Mr. Charles Grey, clerk to the Naval Officer, deposed, that the Fame cleared out in the month of May, 1824, for Newcastle.

William Oldfield examined. - Previously to hiring the boat, witness, Stewart, and Apsey had a meeting at Laurie's house, when it was suggested that the Fame could not sail without first having a boat to put water on board; it was then observed by Laurie, that he had been in the habit of hiring boats of Ternan, and that if one was procured from him, his (Laurie's) son should go with them as far as the Heads and then return with the boat; they went to sea the following morning, with the boat towed to the stern of the Fame; when they arrived at the Heads, Laurie refused to allow his son to return with the boat; the owner's name was afterwards erased by Apsey; Laurie laughed when he perceived it.

Cross examined. - There was no water on board the Fame, and it was the original intention to obtain the boat merely to procure water.

Jonathan Griffiths deposed, that he met the prisoner and others in Two-fold Bay, on the 24th of June, 1824; there was an advertisement in the newspaper proclaiming them as runaways; there was a small boat, which witness knew to belong to Ternan, towed at the stern of the Fame, Laurie said it was his; witness took possession of it, and restored it to Ternan at Sydney.

Cross-examined.  Had to pay £480 in consequence of that job, but expects that it will find its way back; it is attached in the hands of Mr. Stephen at Van Diemen's Land; witness is not the chief mover and instigator of these proceedings in order that Laurie's conviction might set aside that judgment.

The case for the prosecution having closed, Dr. Wardell submitted to the Court that the information against the prisoner should fall on two grounds.  In the first place, the law, as laid down by the Attorney General, did not exist; namely that if the original intention was innocent, and that a subsequent conversion took place, that it altered the complexion of the case at the beginning.  On the authority of a case then before him, in Leech, 411, he contended, that to constitute a felony, the original intention must be felonious, and any subsequent conversion was only a breach of trust.  The second objection he should make was, that there was no evidence to shew that Laurie was, as charged in the information, a principal in the transaction.  All the evidence went strictly to prove that the contract for the hire of the boat was made between Oldfield and Ternan, and that it was at an end before the prisoner took any part in it; the money was received from Oldfield, as principal, and not as the agent of any party; the boat was given up to him by the owner, who did not recognize Laurie, at any time, in the transaction; and therefore, whatever part he subsequently took in the matter, even admitting that the original intention was felonious, still there was no evidence to prove him to have been a principal in the case.  He would therefore submit, that the evidence adduced, did not support the information which charged Laurie as a principal, and also that the original intention to commit a felony, had not been made out.

Mr. Rowe, in furtherance of the argument, contended that in law, this was no larceny, inasmuch as the privity of contract existing between the parties had not been determined at the time, when the conversion, if any, took place.  It was understood, that the boat was not to be returned before 7 o'clock in the evening; she was converted, if there was conversion, before that period; therefore the legal possession had not reverted to the original owner, and the special property of the holder was not determined.  Mr. Rowe then cited several cases in support of his argument, that if the time for which the boat had been lent had expired before she was converted, there would then have been felony, but not otherwise, as the legal possession would then revert to the original owner; and every subsequent possession by the holder, would be a trespass, and amount to felony, if a felonious intention existed in taking.  He would therefore maintain, that the legal possession was in the prisoner, at the time of the alleged conversion, as the privity of contract had not expired; that there was no new trespass, and therefore in law there was no larceny.

The Attorney General contended, that there was sufficient evidence of the intention to go to the Jury.

Prisoner's Counsel replied.

His Honor the Chief Justice was of opinion, that the intention in conversion was a mere matter of evidence; and with respect to the boat having been delivered up to Oldfield, it was for the consideration of the Jury, whether, under all the circumstances of the case, the prisoner had not made use of Oldfield's instrumentality; he would therefore put the case to the Jury on its merits.

No witness being called for the defence, His Honor proceeded to sum up the evidence, and observed, that with respect to the offence, there should be, as the information stated, a felonious intent to steal, take, and carry away.  It was clear, that there was no intention to proceed with the boat on a shooting party, as had been stated by Oldfield to the owner at the time of the delivery; but, if it should appear that there was no original intention to convert it, and a purpose of returning it, however, the owner might otherwise have been practised on, still there was no felony.  The case then turned entirely upon the original intention, and the onus probandi was cast upon the prisoner.  It was in proof, that he had obtained the boat at all events, under false pretences, that he stated his intention to restore it, which he afterwards did not do when requested, saying, that his son should proceed on the voyage.  Was then his original promise, to restore the boat by his son, sincere, or was it merely a statement to induce others to join him in procuring it?  The name also, was erased; Oldfield was angry, as he said it was another man's boat; and Laurie only laughed.  It was then for the consideration of the Jury, whether, taking the whole conduct of Laurie, from the evening the meeting was held at his house, whether his intention was at first innocent; for if his original intention was innocent, and the design of converting afterwards came upon his mind, there was no felony.  The case was entirely for the consideration of the Jury.

The Jury retired for about half an hour, and returned a verdict of Guilty. - The prisoner was remanded.



[1 ] Saxe Bannister.

Published by the Division of Law, Macquarie University