Skip to Content

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

R. v. Absolam and Gardner [1828] NSWSupC 5

stealing, Bathurst, approver, evidence of, perjurer, evidence of  , reception of English law, criminal procedure, convict, proof of conviction

Supreme Court of New South Wales

Forbes C.J., 11 February 1828

Source: Australian, 13 February 1828

 

John Absolam, and Andrew Gardner, were seperately [sic] indicted; the former as principal, in stealing a steel-mill, the property of Mr. Samuel Terry,[1 ] at Bathurst, on the 10th of January, 1826; the latter as accessary [sic] in receiving the mill, knowing it to be stolen.

Jeremiah Cogan deposed to a steel-mill belonging to the prosecutor, in whose service he had continued for the last two years, having been stolen about the beginning of the year 1826.

John Donohoe being next called, a long discussion arose, as to whether his evidence ought to be received.  Counsel for the prisoners contending that a conviction of perjury had been found against him before Mr. Evernden, police magistrate, at Bathurst, who in default of attending in Court to depose to such fact, had provided a certificate of the conviction[.]  The objections against receiving Donohoe's evidence being however overruled, his examination was continued.[2 ]

The prisoner (Absolam,) and Donohoe, were, about the time laid in the indictment, employed at the Wimberdale station, near Bathurst, by the prosecutor.  Donohoe swore that he proposed to the prisoner Absolam, to steal the mill in question, to which the latter readily assented.  They proceeded together to where the mill was fastened to a post on the outside of a door-way; prisoner Absolam found a wrench belonging to the mill close at hand, and both mill and post were carried away into the bush.  Donohoe on the following day took the mill to a blacksmith, named Blackman, and a second time, in about a week after, for the purpose of selling it; the blacksmith was not unwilling to have the mill, but said he had no money, and the witness Donahoe, took the mill with him, and hid it in a heap of straw, where it remained concealed until the other prisoner (Gardner) came to be employed as overseer by the prosecutor.  Shortly after this, Gardner being much in want of flour, promised to give three dollars to the witness Donohoe, for the mill, telling him at the same time, (according to Donahoe's testimony), that he would take care to alter appearance of it, so as to prevent its being again known by the prosecutor or any other person.  About a week after this, Donohoe being ordered to drive Gardner's wife in one of the farm carts, to the residence of a Mrs. Nevill, he asked Gardner to give him half-a-pound of tobacco, which the latter desired his wife to give, and this, Donohoe swore was all he had ever received for the mill.  It was Absolam who stole the mill, but it was Donohoe who stole the wheel, and Absolam went halves in the tobacco.

Mr. S. Terry considered the prisoner Gardner, from the excellent character he had had of him, to be an acquisition, and Donohoe to be a very bad man.

John May, would not believe Donohoe (the approver)[3 ] on his oath; had heard Donohoe say he was sorry for what he had said of Gardner to the magistrates at Bathurst, but would turn his story another way, if Gardner would give him 5l. or 10l.; he said it was only seven years for perjury, and he would get that rather than return to the iron-gang.

 -- Taylor, and Mr. Wilks, surgeon, also deposed, they would not believe Donohoe on his oath; Taylor having heard Donohoe once say, he would run back from his depositions for 5l. or 10l.

Rev. S. Marsden, had known Gardner for six years; he was formerly his overseer; believes him to be a good-hearted, a weak, but an honest man.

Rev. Mr. Hassal also spoke favorably [sic] as to Gardner's character.

Counsel for the Crown was about to address the Jury, but this course of proceeding was opposed by the prisoners' Counsel, and overruled by the Judge, who after observing, that notwithstanding the right of a prosecuting Counsel to reply did exist, it was seldom taken advantage of, and his Honor could not see how it could be fairly exercised in the case then before the Court, counsel for the prisoners not having been allowed the advantage of commenting upon the evidence produced in their behalf, proceeded to sum up, putting the case as hinging entirely upon the degree of credibility to which they might consider the tale of the approver Donohoe entitled.[4 ]  The Jury returned a verdict of not guilty.

Notes

[1 ] A former convict, Samuel Terry was one of the wealthiest people in the colony.  See also R. v. Walker, Keefe, Cuff, Adkins and Coates, 1828.

The trial of Absolam and Gardner was also reported by the Sydney Gazette, 13 February 1828.  Sydney Stephen acted for the Crown, and Mr. Rowe and Dr Wardell for the defence.

[2 ] According to the Sydney Gazette, 13 February 1828, Stephen argued that the only adequate proof of a conviction was the record of conviction, and that the document offered by Rowe was informal.  The Gazette continued: "It falls within the knowledge of the Court, said His Honor, that Magisterial proceedings in this Colony are not in all cases strictly regular.  In strict law, no case of perjury can be established without a regular record.  In the present instance, even the form of conviction pointed out by the Act, giving a summary jurisdiction over prisoners of the crown, to one or more Justices, not living within 20 miles of any general Sessions, has not been followed.

"Mr. Rowe submitted that, there being no other record in existence, and being attested by the signature of the Magistrate, it was the best evidence which could be obtained, and therefore sufficient legal proof of the conviction.

"The Chief Justice. - As a matter of fact, we sit here to administer justice in a country where we have not the same machinery to carry the law into effect as in England.  We have not the means of making up a record in this Colony.  The question, therefore, is, whether there is a sufficient body of facts before the Court, to shew that there was a conviction.  The proof of conviction is certainly not regular; but as, with regard to the matter of fact that he was convicted, I have no doubt in my own mind, and as the objection to his competency rests upon a mere failure of regular proof which might easily have been supplied, you may examine the witness; at the same time that I shall think it my duty to exercise a strict discretion over his testimony."

[3 ] An approver was a person who confessed a crime and accused others of complicity, usually being pardoned or exempted from prosecution.

[4 ] Forbes C.J. rejected Dr Wardell's argument that there was no evidence to go to the jury because the whole case rested on the unsupported testimony of an approver: Sydney Gazette, 13 February 1828.  Gardner was subsequently transported for two years, having been found guilty of receiving a saddle stolen by Edward Payne: Australian, 5 March 1828.

Published by the Division of Law, Macquarie University