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

R. v. Flavell [1816] NSWKR 3; [1816] NSWSupC 3

burglary - evidence, approver

Court of Criminal Jurisdiction
Wylde J.A., 23 October 1816
Source: Sydney Gazette, 26 October 1816[1]

James Flavell and William Tripp were next indicted, on a charge of burglary, committed in the dwelling house of Thomas Reeds, in Castlereagh Street, on the night of the 6th of June last, about 8 o'clock; and with having stolen a numerous list of articles therefrom, chiefly consisting of wearing apparel, of considerable value.
The fact that the robbery was proved by the prosecutor, Reeds; who stated in evidence that he was generally absent from his home during the day time, following his profession, being that of a hairdresser, and that he usually returned a little after 9 o'clock, and went to bed; that upon the day set forth in the information he had visited his house about 4 in the afternoon, made a short stay, and then went out again, leaving the door locked, and windows fast, as were also two chests within, which contained the chief of his property; that about half past nine he returned home, and discovered upon his entrance that he had been robbed, his boxes forced open, and entirely emptied; which he considered to have been effected by cutting away part of the wall of his bed room in the brickwork of which there appeared a hole sufficiently large for a man to enter at. His house he described as being situated next door to that of the prisoner at the bar James Flavell.
William Webb, an approver for the Crown, was then called to give evidence; and previous to his being sworn was admonished by His Honor the Judge Advocate on the necessity of his strict adherence to the truth in the declaration he was about to make; explaining to him at the same time the conditions upon which the law permitted an approver to give testimony against others in whose guilt he had participated.
The witness being then directed to proceed in his testimony, deposed, that he was by trade a shoemaker, and lived in a small house in Castlereagh Street, nearly contiguous to that of the prosecutor, whose house was close to Flavell's yard or garden fence; that he had for some months known Flavell, who was by trade a blacksmith, and with whom the other prisoner at the bar lived as a servant at the time the robbery was committed; that Flavell had proposed the matter to him some days before it was effected, and had instructed two implements of iron for the purpose of breaking into the house. He had never been told by Flavell that his servant Tripp was to be of the party until the evening of the robbery, at which time it was proposed to him in the house of Flavell, and he agreed to accompany them. The affair was then fixed for that night, at the instance of Flavell, who objected to any further delay, and the witness left them. He returned at sunset to the house of Flavell, and found with the two prisoners at the bar a youth of the name of Bateman, an apprentice to Flavell, who sent him to purchase a pint of spirits, and during his absence the robbery upon that evening was finally determined on. The spirits were brought and drank, and the parties soon afterwards left the house of Flavell, to proceed to that of the prosecutor, the witness (by the advice of Tripp) separating from them, and going thither by the way of Flavell's garden. When he arrived at the devoted place, he found both the prisoners at the bar there; Tripp, having the implements that Flavell had prepared for the purpose, commenced the operation of perforating the wall, which Flavell perfected by effecting a chasm sufficiently large to enter at. While they were thus employed, the witness was on the watch to prevent a surprise; he was posted so as to command a view of the street, and could have discerned any person approaching the house from the opposite side of the way, though it was too dark to distinguish a man's features. One of the prisoners at the bar at length whistled, and witness going to them, they all got through the cavity, and pillaged the house by the light of a lamp, which Flavell said had been brought from his house. The property was tied up in bundles, one of which was removed by Flavell to his own workshop. Another, chiefly containing women's apparel, was secreted in Flavell's well, into which also were thrown the iron implements, the lamp, and several pieces of iron that were in Flavell's shop, in order to elude suspicion in case of search. The other articles were by Tripp and the witnesses conveyed towards Farm Cove, and concealed; and Flavell, before they left him, mentioned his intention of taking his apprentice with him to an opposite house, kept by Elizabeth Peterson, in order that he might be enabled in case of future enquiry to account where he had spent the evening; and at the time of their so parting, witness conceded it might be about seven in the evening. Some of the stolen articles were afterwards sold by the witness and Tripp to wind William Hamilton, for £17 and others that were produced in Court had been sold to Hercules Watts. These were shewn to him, and identified by the witness, the prosecutor also identifying his own property therein.
John Bateman, the apprentice, accurately corroborated the testimony of the King's evidence in all the circumstances that related to himself; further stating that his master had sent him for a pint of spirits on the evening of the robbery, when the prisoner Tripp and the approver were in his own house with him; and they all went out about the same time; that he heard a noise like that of a hammering shortly after they went out, which he supposed to be near the back of his master's house; that Flavell after his return took him along with him to the house of Elizabeth Peterson; that he was awakened by a noise a night or two after he had heard of the robbery, and saw a quantity of clothing drying before a fire in his master's house; that he saw the King's evidence and the prisoner Trigg ringing two men's coats in his master's shed, his master being then present; then he found a silk handkerchief similar to one produced in Court floating on the surface of the well, and acquainting his master there with, the latter directed him to say, in case of enquiry, that he found in the garden, and not in the well; and that he was afterwards present when the well was searched, and among several pieces of iron found in it was that which the King's evidence had sworn to be one of the implements of housebreaking prepared by Flavell, which the witness had before once seen in his master's workshop.
Hercules Watts deposed, that a Coat and several other articles produced in Court, which had made part of the robbery, were by him purchased from William Webb, the approver, accompanied by the prisoner at the bar, William Tripp. He went with them to Flavell's house, and there saw a great quantity of men and women's apparel, which Flavell said were Webb's, the latter having previously assured him that he had received the whole of the things from England.
Several other witnesses were examined, whose evidence was strictly corroborative of the evidence that had gone before; and the whole being concluded, the prisoners went upon their defence, in which Flavell endeavoured to prove an alibi, by calling the evidence of Elizabeth Peterson and Mary Buckley as to his having been in the house of the former at the time the King's evidence, Webb, had sworn to the perpetration of the offence; but the evidence called in its support was by no means satisfactory; and both the prisoners were found Guilty.

Note

[1] Both prisoners were sentenced to death, and hanged on 15 November 1816: K. Macnab, Database of Prisoners Sentenced to Death in New South Wales, 1788-1968, unpublished.

During his term as Judge Advocate, Wylde's responsibilities were primarily focussed on the criminal court. As Woods points out at p. 44, the highly religious Wylde was "an enthusiast for the death penalty". Woods states that 95 people were executed between 1819 and 1824, which meant that on average the small population of Sydney saw a hanging more than once a month.

Byrne also comments at p. 281 that "Judge Advocate Wylde, who arrived in the colony in 1816, favoured solitary confinement as a punishment for both men and women. His first sentence involving it entailed six months' solitary confinement as a punishment for a woman charged of theft, Sarah Grey [in 1821]. He sent a circular to all of the magistrates in the colony requesting their opinion of solitary confinement and claimed himself that 'it was an excellent punishment if properly applied'".
See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ776A, p. 13; and see P. Byrne, Criminal Law and Colonial Subject: New South Wales 1810-1830, Cambridge University Press, Melbourne, 1993 281-282; G.D. Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900, Federation Press, Annandale, 2002, 43-44.

 

Published by the Division of Law, Macquarie University