Constable Imprisoned for Allowing W. Warby to Escape

18 August 1836 The Sydney Gazette and New South Wales Advertiser

Supreme Court. Monday, August 15.

Before the Acting Chief Justice and a Civil Jury.

Daniel Dugard, a constable for the district of Bong Bong, stood indicted for permitting a prisoner named William Warby to escape from his custody on the 18th Nov., 1835.

It appeared that Warby had been delivered into his custody, under a warrant issued against him by Mr. W. H. Datton, J. P., Yass, upon a charge of receiving stolen cattle.

The constable having got intoxicated, the prisoner escaped from him.

His Honor, in putting the case to the Jury, left it for them to say whether the constable had allowed Warby to escape through wilfulness or negligence.

They found him guilty of allowing to escape through negligence:- Sentenced to pay a fine of 40s., and to be imprisoned for two years.

The Judge, at the same time, intimated that, had the Jury found him guilty of wilfulness, he would have felt it his duty to have sentenced him to transportation for life.

18 August 1836 The Sydney Herald

Daniel Dugard, a constable, was charged for that be, having one William Warby and others in his custody under a warrant from William Hampden Dutton, Esq., one of His Majesty's Justices of the Peace for the Colony, on a charge of cattle-stealing and receiving stolen cattle, did wilfully, designedly, and interestedly allow the said William Warby to escape, be at large, and go whithersoever he would, at Sydney, on the 18^th November last.

From the evidence, it appeared that the defend-ant was a constable at Bong Bong, and four prisoners were given into his custody for the purpose of being forwarded to Sydney, and that on his arrival he and his prisoners went into a public house and got drunk.

The next morning the prisoners were apprehended in a drunken state by the Sydney Police, in a public-house on the Brickfield-hill.

In putting the case to the Jury, His Honor said that they must state in their verdict whether they considered be suffered the prisoners to escape wilfully or negligently.

The Jury returned a verdict of Guilty of negligently suffering a prisoner to escape.

His Honor observed, that had the Jury brought in a verdict that he had wilfully suffered his prisoners to escape, the punishment would have been transportation for life, and had the crime with which the prisoners were charged been murder, he would have had to suffer death.

The sentence of the Court was that he be fined forty shillings and imprisoned for two years.

20 August 1836 The Sydney Monitor

Danial Dugard, late a constable in the Bong Bong Police, stood indicted for suffering a prisoner to escape, named William Warby, delivered into his custody under a warrant of William Hampden Dutton, Esq., a Magistrate of Yass, for delivery of the said William Warby into the safe custody of the Gaoler at Sydney, on a charge of cattle-stealing.

The prisoner Warby, had been seen by Police Sergeant Ryan, at large in Sydney, who knowing that he had arrived in the custody of the prisoner at the bar under a committal warrant for cattle-stealing, apprehended him and lodged him in the custody of the keeper of-the-Sydney Gaol.

It was proved by Mr. Baird, publican, that the prisoner had arrived at his house accompanied by William Warby and his wife on the 18th November last, and that he had slept in the tap room upwards of three hours while his prisoner had retired up stairs to bed, thereby affording him an opportunity to escape from Justice.

The prisoner Dugard, exhibited before leaving the house a number of Bank Notes by which it was inferred he had received as a bribe from Warby.

His Honor, in putting the case to the Jury referred to the satute, which provided against escapes arising from either the negligence of Officers of Justice, from the High Sheriff down to the meanest constable.

The law, however, drew a distinction between voluntary escapes, and escapes arising from negligence.

The former case was that in which a con-stable, or other officer, having the custody of a prisoner, suffered him to escape voluntarily, either by a bribe or other consideration, and rendered the officer, so offending, liable to the same punishment as the law awarded to the crime committed by the prisoner he had so suffered to escape.

If the prisoner escaping stood charged with Murder, the officer who permitted his escape, would be liable to suffer death.

If, however, the escape of a prisoner arose from an absence of that attention and precaution on the part of a constable, or other officer, which was necessary for the safe keeping of the said prisoner, it then became a negligent escape, and was liable to fine and imprisonment only.

His Honor could not forbear observing, that the case of the prisoner, looking at the peculiar nature of the country, was one of great cupidity; one which tended to prejudice the in erests of Justice in a material degree; either by affording criminals an opportunity to escape from the law, and so renew their evil practices to the annoyance of the honest part of the community, 'or in affording them an opportunity to suborn testimony for their defence against a just-accusation'.

There could be no doubt that for the risk he had run, he had received some consideration, but it would be for the jury to say whether he had acted with a guilty intention, or had suffered his prisoner to leave his custody from negligence.

The Jury found the prisoner guilty of permitting William Warby to escape; through negligence, and the Court thereupon sentenced him to pay a fine to the King of 40s., and to be imprisoned for the period of two years.