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

R. v. Gogarty and Keegan [1827] NSWSupC 4

stealing, cattle, evidence

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 12 February 1827

Source: Sydney Gazette, 14 February 1827

Patrick Gogarty and William Keegan were indicted for stealing a bullock and a steer, the property of George Cutter, of Sydney. --- Not Guilty.

Another information was presented against the same prisoners for stealing a bullock, the property of George Forbes, Esq. at Mole's Main, on the 28th of December last.

Mr. William Merritt stated, that he is a dealer in cattle, and remembers having some time since purchased ten head in the market branded with the letter H, some of them also being branded with a crown, amongst which was a dark blue bullock; witness sold these cattle on the same day to Mr. George Forbes, and took them himself up to Molle's Main, where he saw them several times after; about a month since, witness was riding up George-street, and recognized the blue bullock which he had sold to Mr. Forbes, in the pound; has not the least doubt it was the same; Mr. Forbs told witness that a number of cattle had been lost off his run, and it has been since ascertained that the remainder are in Argyleshire.

David Funstan, a private in the 57th regt. deposed, that, about a month ago, he apprehended the prisoners on the Liverpool road, driving a number of cattle, amongst which was a blue bullock branded with an H, towards Sydney; the prisoners were taken before the police in Sydney, and the cattle placed in the pound.

William Fisher residing on the Liverpool road, about 8 miles from Sydney, stated [that?] the prisoners, one of whom, Gogarty, he had known previously, came to his house between 5 and 6 o'clock on the evening of the 1st of January last; they brought some cattle, witness thinks nine head, with them here was a black blue bullock branded on the off side with an H amongst them, which Gogarty offered to sell to witness; witness saw the same bullock since in the pound at Sydney; was taken to look at it, by direc[t]ion of the Magistrates, and, on seeing it there, perceived it bore the mark of a crown which he did not observe on the former occasion.

Cross-examined by Dr. Wardell - Witness did not perceive the crown when the bullock was at his premises; does not mean to say that if there was a crown on it, he must have seen it, but he did not observe it then; witness is near sighted; did not tell the magistrates that he could not see the colour of a cow distinctly; Gogarty offered to sell the bullock for £8 10s. sterling; he afterwards came down to £8 but witness thought the price too high and would not purchase it.

George Lucas stated that; about five weeks since, he met the prisoners about three miles on the other side of Liverpool, driving some cattle; witness wanted to purchase some, and asked if they were for sale, the prisoner replied that some of them were; they pointed out two particularly, which they said were not to be sold, and, witness thinks, also two other; there was a blue bullock amongst them, but witness cannot say how it was branded; cannot say whether that bullock was one of those offered for sale.

This was the evidence for the prosecution.

Dr. Wardell submitted that there was no case against the prisoners to go to the Jury.  It had not been shown on oath, that Mr. Forbes had ever lost any cattle.  Mr. Merritt stated that Mr. Forbes told him that he had lost cattle, but he (Dr. Wardell) submitted that what Mr. Forbes told Mr. Meritt out of Court, was no evidence to go to the Jury.  Mr. Forbes should himself, or some person belonging to him, have been brought forward to establish this fact, and that material link in the chain of evidence being wanting, he contended there was no proof whatever of the loss at any time.  There was another point also upon which he submitted the case against the prisoners could not be sustained.  There was no proof of stealing by the prisoners.  Admitting the actual loss of the cattle had been established to the satisfaction of the Jury, still there was nothing to shew that they were stolen by the prisoners.  The prisoners might or might not be receivers, but receivers only could they be under the evidence brought forward.  One of the witnesses, Mr. Morris, stated that the remainder of the cattle which were lost were actually in Argyle, and the natural inference from this was, that the stealers, if they were stolen, had driven them there and sold them at different stations, and that they came into the possession of the prisoners in this way.  But they might have been stray cattle and the prisoners the first finders, and wanted to dispose of them for their own benefit.  But that was no felonious making.  Where one finds goods which had been lost, and designs even animo furandi to convert them to his own use, it was no felony, he could not be indicted as a felon (Hawkin's pleas of the crown,) and he, therefore confidently submitted, that upon these grounds, first, there had been no proof of the loss, and for any thing which appeared before the Court, Mr. Forbes might have said these very cattle to the prisoners; and secondly, that as there was no evidence whatever of the stealing, if they were stolen, being by them, they were entitled to an acquittal.

HIS HONOR Mr. JUSTICE STEPHEN observed that it was a principle of English law not to receive secondary evidence, when direct testimony might be had.  He was of opinion that Mr. Forbes, or some of his servants, should have been brought forward to establish the fact of the loss.  As to the second objection, if there had been sufficient evidence of a felony having taken place, he would have put the case to the jury, and left them to decide on it, from the circumstances which appeared before them.  The first objection, however, he thought was valid.  In the absence of direct evidence of the loss, he was of opinion there was no case for the Jury. --- Not Guilty.

Published by the Division of Law, Macquarie University