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

R v Smith, Kelly and Kaine [1826] NSWSupC 61

highway robbery, female defendant - women defendants in crime - death recorded

Supreme Court of New South Wales

Forbes C.J.,[1 ] 11 September 1826

Source: Australian, 13 September 1826


Ann Smith, John Kelly, and John Kaine, were capitally charged with a highway robbery on a man named Gilleghan,[2 ]at Parramatta - he got into the company of the female prisoner, with whom he partsok [sic] of spirits very freely.  Leaving the public house, he had occasion to take some money from his pocket - the woman invited him to go home with her and take tea, but he refused - on going out of the public house he was met by several persons, among whom was the woman prisoner - he was knocked down - a handkerchief put into his mouth, and he felt some one's hand in his pocket - the night was rather dark, but he was enabled distinctly to see the female prisoner, who was standing over him - in his pockets were nine dollars in money, and some small change, in silver - Verdict, Ann Smith guilty,[3 ] and the other prisoners not guilty.



[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.  This trial was also reported by the Sydney Gazette, 13 September 1826.

[2 ] Gilleghan (or Gillighan) was tried immediately after this case, and convicted of stealing a calf: Australian, 13 September 1826; Sydney Gazette, 13 September 1826.  On 22 September 1826, he was sentenced to death recorded (as to which, see footnote 3): Sydney Gazette, 23 September 1826.

[3 ] On 22 September 1826, judgment of death was recorded against Smith: Sydney Gazette, 23 September 1826. Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University