Skip to Content

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

R v Turner, Kerr and Bates [1826] NSWSupC 57

receiving stolen goods - audience in court - perjury

Supreme Court of New South Wales

Forbes C.J., 5 September 1826

Source: Australian, 6 September 1826


John Turner, alias Dailey, and Robert Kerr, were indicted for having in their possession a quantity of blue cloth, supposed to have been feloniously acquired.  There were no evidences to prove that the prisoners had taken the cloth.  Both men were pronounced - Not Guilty.[1 ]

William Turner and John Bates were indicted for a similar offence -

W.J. Browne, Esq. Examined --- I was present at an examination taken at the Police Office, wherein the prisoners were accused of the present charge; I then recognised a quantity of cloth there, as forming part of the property stolen from the stores of myself and partner, Edward Aspinall, a short time before.

Cross-examined --- merely identified the cloth on the occasion alluded to, from comparison.

Reuben Pate sworn --- deposed that on Tuesday the 5th day of June last the prisoner Turner came to his house and requested him to call down, meaning at his own house, in the course of that afternoon; deponent did so, and took measure of Turner for an entire suit of clothes, and Bates the same; witness received seven yards and three quarters of blue cloth from Bates at his house.

Mary Bates --- is wife of the last witness; a search took place at her house; some cloth was carried away to the Police Office; after the constables had left the house, witness went to Turner, and told him of the circumstance, observing at the time that his, Turner's cloth was among what was gone.  Turner said is "the list off?"  Witness said yes.  He then iquired [sic] if any of the cloth had been cut up; to which interrogatory a similar reply was made.  The prisoner then said, "no matter, they cannot swear to it."  Witness understood by this that Turner was impressed with an idea that on account of the selvage, as the list is termed, the cloth could not be identified by the real owner.  Prisoner afterwards requested witness to tell her husband to take the whole on himself, and say the cloth was his property.  The latter returned for answer that he would not.

Mr. T. Amsden, Assistant Superintendent of Police, deposed to his searching the witness Pate's house for stolen property.  A quantity of cloth was taken away to the Police Office; from whence it was brought to the Court this forenoon.

Cross-examined. ---- It is not the first time that stolen property has been found in the house of the witness Pate.

W. Lucas stated that he received a piece of cloth from the prisoner Turner, for which he gave a gold seal, and had to perform some work in addition.

Mr. Gurner, Clerk of the Court, proved the conviction of John Dent, for a larceny, in stealing cloth from the stores of Messrs, Aspinall and Brown,

This was the case against the prisoners.

For the defence a number of prisoners were called, to invalidate the testimony of evidences brought forward in support of the prosecution.

The Chief Justice charged the Jury, that it was a question solely for their consideration, which set of witnesses were entitled to the most credit - whether those for the prosecution or those for the prisoners.  His Honor must say, that the main evidences against the accused, were those of Reuben Pate and his wife.  It must be observed, that the property which the prisoners stood charged with receiving, was found with the witness (Pate); and therefore he was certainly looked upon in the light of a man having a burthen on his shoulders, and was anxious to thrown it off in any practicable way that might offer; still it did not warrant the Jury to reject that witness's evidence altogether; yet it was fair for the prisoners to advert to this circumstance.  His Honor the Chief Justice had, throughout the case, endeavoured to find out whether any portion of the cloth stated to have been received from the prisoners, had ever been seen in their possession; there was no one to speak to that important fact, and his Honor would therefore say, taking the whole circumstances of the case into consideration, there did not appear to be sufficient before the Court, whereupon to found a verdict of conviction.  The Jury retired for the space of two minutes, and then returned, acquitting the prisoners.  On the verdict being pronounced, a loud burst of approbation issued from the numerous auditory, which was estimated to consist of upwards of 500 persons.[2 ]



[1 ] The trial was also reported by the Sydney Gazette, 9 September 1826.

[2 ] For another prosecution for this crime, see Australian, 6 September 1826, p. 3, col. 4; and see Monitor, 8 September 1826.  On 12 September 1826, Frederick Constable was prosecuted for perjury, committed while giving evidence in this case: Sydney Gazette, 16 September 1826.  Constable was found not guilty.  William Turner was then indicted for perjury during Constable's trial, though no result is recorded: Sydney Gazette, 16 September 1826.

Published by the Division of Law, Macquarie University