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

R. v. Baker [1828] NSWSupC 58

highway robbery, Parramatta, sentencing discretion, plea of guilty, convict escape, convict evidence, reward, reduction of convict's sentence, ticket of leave, felony attaint, convict, proof of conviction
 

Supreme Court of New South Wales

Forbes C.J., 18 August 1828

Source: Sydney Gazette, 20 August 1828

Charles Baker was indicted for a highway robbery, on the person of Patrick Corbett, near Parramatta, on the 7th of June last.[1 ]

The prisoner pleaded Guilty to the charge, observing that it was useless to deny what was alleged against him, as the prosecutor was determined to swear away his life, and he had no means to gainsay him.

The Chief Justice admonished the prisoner, that if he persisted in pleading guilty, under any expectation of clemency being shewn to him in consequence, he was mistaken.[2 ]  His Honor, therefore, desired him to re consider his plea, and to plead Not Guilty, and take his trial.

The prisoner withdrew his plea, and pleaded Not Guilty.

The Solicitor General conducted the prosecution, and called one witness only, who deposed to the following circumstances:

It appeared that Patrick Corbett, a prisoner of the Crown for life, who lives near Parramatta, was returning from that town between two and three o'clock in the afternoon of the 7th of June last, with two bags, one containing meat, the other corn and a bottle of oil, when a man came suddenly be-him, [sic] and dragged him on his knees, when he struck him a blow with a waddy, and knocked him down, and then ran off with the two bags.  The prosecutor immediately started up, and picked up some stones, with which he followed the prisoner, who, when he found himself closely beset, dropped the bags, and enected [sic] his escape.  On the following day the prosecutor went to the place where he was robbed, within a few rods of which he found the prisoner sitting by a fire, and at once recognized [sic] him as the man by whom he had been knocked down on the preceding day.  The prisoner, on being charged with the fact, denied it, saying that he was a stock-keeper, but the prosecutor being satisfied of his identity, immediately secured and gave him into the custody of a constable.

The prisoner, on being called on for his defence, protested his innocence, stating that he was a runaway from an iron gang,[3 ] and had been harboured for fifteen days in the prosecutor's hut, at the end of which time he had been given up to the Police, the prosecutor having stated that he would make the fifth runaway he had apprehended, and that he was to have six months for each, to be taken off the time he had to serve previous to obtaining a ticket-of leave.

The prosecutor was here re-called, and examined by the learned Judge, when he admitted that the prisoner made the fifth runaway that he had apprehended; that he was told by the Superintendent of Police at Parramatta, that he would be allowed six months for each, and that he expected six months deduction from his servitude on account of the prisoner.

Mr. Rowe, who happened to be present, at this stage of the proceeding, submitted to the Court, as amicus curiae, that the property was wrong laid in the information.  He contended that it should have been laid in the Crown, inasmuch as the prosecutor, by his own admission, being a convict attaint was incapable of holding property, all that he might have been possessed of, vesting in the Crown on his conviction.

The Solicitor General, in reply, contended that the objection was untenable; because the Record of Conviction was the only proof which could be received as evidence of the fact.  In the present case the Cour thad [sic] nothing before it but the admission of the witness himself, which, on the authority of decided cases, was held not to be sufficient (East 77.)

Mr. Rowe observed that the learned Counsel had not attempted to deny, but that, had such a case occurred in England, the objection would have been fatal.  Was it then, he asked, to be said, because the prisoner, exert himself as he might, could not produce the record of the witness's conviction, no such documents being transmitted to the Colony, that he was to be debarred from the benefit of that objection, which, it was admitted, would be fatal in England?  There were cases, he contended, wherein the admission of a party that he was a convict attaint was held sufficient to disqualify him from being a witness, though he (Mr. Rowe) was not prepared at the instant to cite them.  If the principle contended for by the Solicitor General were held to be the law in this Colony, and that nothing but the production of the original record of conviction would be sufficient to prove a prisoner to be a convict attaint, there was not a man in the Prisoners' Barracks but might take advantage of it, and it would be impossible to shew that he was not free.

The Chief Justice proceeded to sum up the evidence.  The learned Judge observed, in reference to the point raised by Mr. Rowe that he was of opinion the reply of the Solicitor General was, in legal strictness, a sufficient answer to it; besides, by a late Act of Parliament, all persons who received any remission of sentence from the Governor, were entitled to hold property, and there was nothing before the Court to shew that the prosecutor in this case had not received such remission.  His Honor, in adverting to the facts of the case, as appearing in evidence before the Jury, requested of them to divest their minds of all feeling against the prisoner, from the circumstance of his having, in the first instance, pleaded guilty to the charge against him.  Instances might occur, and doubtless had occurred, where a prisoner put upon his trial, and feeling it impossible for him, even though innocent, from peculiar circumstances, to rebut that which he knew was to be proved against him, might plead guilty, in the hope of meeting with a more clement consideration at the hands of the Court, than if he had obstinately defended his case.  The Court was, therefore, at all times unwilling to take a plea of guilty from a prisoner; and, as in the present instance, was anxious that such a plea, if recalled, should not prejudice the Jury, who were bound to make up their minds upon the evidence before them, independent of all extrinsic circumstances.  The statement made by the prisoner, in his defence, unsupported as it was by any evidence, was entitled only to such credence as the Jury might be of opinion it deserved; but, at the same time it should be borne in mind, that the case for the prosecution depended solely upon the testimony of one witness, who had candidly admitted that he expected six months of liberty from the apprehension of the prisoner, and who, therefore, spoke under one of the strongest inducements that could operate upon his mind.  Independent of this circumstance, the learned Judge also remarked on what might be termed the occular evidence in the case; namely, the great disparity in point of bodily strength between the prosecutor and the prisoner; the former of whom appeared to be a powerful, and the latter a diminutive sized man; a circumstance which could not but excite a feeling of surprise that the prisoner, alone, should have perpetrated an act of violence such as had been described, on one so far his superior, to every appearance, in physical force.  Altogether, the case was one deserving the most serious consideration of the Jury; and His Honor had no doubt they would return such a verdict as the circumstances taken altogether, would justly warrant.

The Jury retired for a short time, and returned into Court, with a verdict of Not Guilty.

The prisoner was detained, on the notice of the Solicitor General to take his trial upon another charge to be preferred against him.[4 ]

Notes

[1 ] See also Australian, 20 August 1828.

[2 ] This was the usual reaction by the judges to a plea of guilty.  See for example, R. v. Wood and Scott, reported in Sydney Gazette, 7 February 1831; Australian, 10 February 1832;Sydney Herald, 13 February 1832.  Wood insisted on pleading guilty, saying that by doing so he would save the life of Scott, who was innocent.  Scott was found guilty of highway robbery in any event, and both were sentenced to death.

For another example, see R. v. JohnsonAustralian, 17 February 1832; Sydney Herald, 13 February 1832.

[3 ] The Sydney Gazette, 23 May 1829, attempted to refute suggestions that iron gangs were responsible for most highway robberies.

[4 ] On the next day, 19 August 1828, Baker was again tried for highway robbery.  He stole the prosecutor's hat, but courteously tossed his own back in return.  He was found guilty.  SeeAustralian, 22 August 1828.  He was sentenced to death recorded (Sydney Gazette, 8 September 1828), which meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University