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

R. v. Pasfield [1827] NSWSupC 2

receiving stolen goods, married women's legal disabilities

Supreme Court of New South Wales

Forbes C.J., 6 February 1827[1 ]

Source: Australian, 7 February 1827

Samuel Pasfield was indicted for receiving stolen property.

Colonel Dumaresq identified a piece of linen produced, to be the same as stolen from government house in the early part of December last, his property.[2 ]

Israel Chapman deposed to searching the prisoner's house on the 20th December, for some stolen linen, which was suspected to be there - found the remnant sworn to by last witness - prisoner and his wife were present at the finding - in accounting for its possession, prisoner said that the piece of linen came out to his wife from England.

Other witnesses gave evidence on minor points.

In defence it was attempted to be proved that the prisoner was not in Sydney when the robbery was committed.

A witness was called who deposed that he knew, on one occasion, the prisoner to have received a small case of wearing apparel.

The Chief Justice recapitulated the evidence to the Jury at some length, putting it to them to consider whether the reply given by the prisoner to Chapman, the constable, upon the property being found, was intended only as an endeavour to screen his wife from all consequences - or, whether on the other hand, the prisoner had at that time adopted the acts of his wife (supposing her to be guilty, and become a part receiver.)[3 ]  The case was one purely of evidence, and which the Jury had alone to determine.

The Jury retired for about 15 minutes, and returned a verdict - Not Guilty.

Notes

[1 ] The Australian implies that the trial was on 5 February, but the Sydney Gazette (7 February 1827) was explicit in stating that it was on 6 February.  The Gazette also said that Mr. Rowe acted for the prisoner, and the Acting Attorney General, W.H. Moore, for the prosecution.

See also Pashley v. Proprietors of the Monitor Newspaper, February 1827.

[2 ] The Sydney Gazette, 7 February 1827, stated that Dumaresq replied under cross examination by Mr. Rowe for Pasfield, that "a man of colour, servant to witness, was suspected to have been the thief; he was a prisoner of the crown, and was returned to government, not on that account, but from general irregular conduct".

[3 ] The Sydney Gazette, 7 February 1827, gave the following account of an exchange during the case:

"Mr. Rowe submitted that the act of the wife, the prisoner not being present, could not be evidence against him.

"The Acting Avtorney [sic] General contended, that he was entitled to produce the best evidence which the nature of the case afforded.

"His Honor ruled, that the best evidence was the wife herself.  As, however, it was a principle of law that a wife could not be evidence for or against her husband, she, of course, could not be called, and, therefore, by a parity of reasoning, evidence of what she did could cot [sic] be admitted."

Published by the Division of Law, Macquarie University