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

R v Smithers and Smithers [1826] NSWSupC 81

receiving stolen goods - arrest of judgment - women defendants in crime - married women's legal disabilities - criminal procedure - Crown mercy

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 28 December 1826

Source: Sydney Gazette, 30 December 1826


Thomas Smithers, and Sophia Smithers, his wife, for receiving a quantity of blankets, the property of the Crown, knowing the same to have been stolen.[1 ]  To be severally transported for fourteen years.

Motions in arrest of judgment were made in each of the above cases, and over-ruled.  On the part of Sophia Smithers, it was strongly urged by Dr. Wardell and Mr. Wentworth, that the intendment of law that she acted under, the coercion of her husband, was in her favour, unless the contrary were shewn, which, it was contended, did not appear on the trial; that the case was not put by His Honor to the Jury with this necessary remark, and therefore they might very fairly be presumed ignorant of that principle of law, and have found her guilty, which probably would not have been the case, had not that omission on the part of His Honor occurred.  Objections were also taken generally to the indictment, as against both prisoners, by Mr. Rowe.

His Honor the Chief Justice over-ruled the objections taken to the indictment; with respect to the point urged on the part of Sophia Smithers, His Honor observed that it did not escape his attention on the trial; that he was of opinion the evidence, as against her, was but slight, and he put the case to the jury with that observation, though they notwithstanding found her guilty.  As to the circumstance of her being presumed to act under the influence of her husband, it should be remembered that it was distinctly in evidence that he was from home when she received the property; that when the search was instituted, there was a distinct denial on her part, of any such articles being in the house, and that afterwards they were found in her bed room.  He therefore thought, from all the circumstances of the case, it was too much to say that she had acted under the coercion of her husband, but to leave the facts of the case to the jury, with the observation that he deemed it necessary to make, namely, that the evidence as affecting her appeared to him to be slight.  The jury, however, had found her guilty, and it then remained to pass the sentence of the law.  If, however, any circumstances in her favour were stated in the proper form, to be laid before the only quarter from which a mitigation could then flow,[2 ]His Honor would not only have them forwarded, but would add thereto his own opinion that the evidence, as against her, was slight.



[1 ] They were tried before Forbes C.J. and found guilty on 5 December 1826: Sydney Gazette, 6 December 1826.  Except in cases of murder, the formal judgment and sentencing took place subsequent to the trial.

[2 ] The Governor, through Crown clemency.

Published by the Division of Law, Macquarie University