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

R. v. Feeby [1828] NSWSupC 66

women defendants in crime - stealing, in dwelling house - presumption of innocence - confession, admissibility of

Supreme Court of New South Wales

Trial, 27 August 1828

Source: Australian, 29 August 1828

Charlotte Walker Feeby, was capitally indicted for stealing in a dwelling-house, one promissory note for 10l., another for 5l., and two other for 1l., each, belonging to William Sibley. [sic] who, being sworn, deposed  I live in Cumberland-street, Sydney.  In all June last I occupied a house in that street; I slept, ate, and drank therein.[1 ]  On the 25th day of June last, I saw the prisoner at Baker's house, next to my own; she went home with me; Baker came with her and myself, bringing a gill of spirits with him.  He did not remain more than two minutes, leaving me and the prisoner together.  I went to bed about 12 o'clock; there were no other persons in the house but myself and the young woman; I had a 10l. bank note, a 5l. note, and two of 1l.; before I laid down, I put these notes into my hat, which I laid on a chest in the bed-room; I woke about 4 o'clock in the morning; I heard a noise in the room, and immediately put my hand into the hat to feel for the money, which was not there; hearing a stir in the room, I called out, is that you Charlotte? have you got my bills? tell the truth; she replied, Sibley, I have not touched the notes; I made answer, tell me the truth, if you want a pound or two you are welcome to it; prisoner said, if you will promise not to say any thing about it, I will get them.  I thought from this that the notes were in the house.  I asked her where the money was? she said Richard Baker has got the money, but if you go along with me to him, I shall not be able to get it from him.  I then allowed prisoner to leave the house, but followed her to Baker's gate; she knocked at Baker's door, but received no answer.  I then went to the neighbouring watch-house and got a light; a constable accompanied the girl and me back to Baker's house, and knocked pretty loudly; Baker called out who's there; the constable made answer it was he; Baker answered, "go to h--ll with you."  Upon this I gave the prisoner into custody of the constable.  I have never got any of my money since.

Cross-examined by Mr. Rowe.  I had been drinking a good deal the day on which this happened.  Before I went into my own house I had been drinking at Baker's, but I can recollect the things I have explained.  I do not recollect whether I locked my room door on going to bed.  The girl denied having the money at first; at last she said if I would say no more about it, she would tell me where the money was.  I told her I should say no more about it, as I only wanted my money back.  This as before and after she had confessed knowing any thing about it.  I have never got my money since.  I can neither read nor write.  I changed a 20l. note at Mr. Chitman's, for which I received 10l. and two of 5l.  I took the notes to be good ones, but I do not know whether they were so or not.  I do not know whether the notes were due and unsatisfied.  There are many bad notes in circulation.  I do not think the girl took my money.  Baker might have come into the bed-room after I went to sleep, for what I know.  I pulled the notes in question out of my pocket, while in Baker's house.  Baker saw them, and gave me change of a 1l  note, taking 9s.  10d for which I was indebted to him.

Re-examined.  The person with whom I got the 20l. note changed is a respectable tradesman.  I never took any bad notes of him.  I took the notes to be good ones.  I did not know that prisoner was a lately married woman.  She had the reputation of being a married woman.  I am a married man, and am living apart from my wife.  I do not think the girl robbed me.

The learned Judge, at the close of this examination, appearing to be of opinion that the witness had grossly prevaricated during the course of his examination; first, by saying the woman had robbed him, and afterwards attempting to excuse her, by saying he thought she had not robbed him, committed him to the custody of the Sheriff.  The witness, upon this, was removed from the Court in charge of the Sheriff's officer.

John McGuiness, a constable, deposed, that he was in the watch-house when Sibley came in, and said he had been robbed.  Heard prisoner acknowledge in Sibley's presence, that she had taken the notes out of his hat while he was asleep.  No intreaty or promise was held out to the prisoner to induce her to make this statement.  It was quite voluntary on her part.

This witness underwent a long and amusing cross-examination by the learned Counsel for the prisoner, but without establishing any material point.

Prisoner, in defence, said that the prosecutor locked her up in the bed-room for some time, beat her, and threatened her life, if she did not get him his money, and that it was under the influence of fear, she made a false statement.[2 ]

The learned Judge recapitulated the evidence to the Jury verbatim, observing that if the case had rested upon the unsupported testimony of the prosecutor alone, he would have most certainly recommended them to acquit the prisoner, but as there were two other witnesses, whose veracity had not been impeached in any way, he, the learned Judge, would leave it to the Jury to form their own conclusions.  Upon taking a review of every circumstance connected with the case, if they entertained a sober, rational doubt of the prisoner's innocence; that the defence she had set on was true, and that it was under the influence of fear she made the statement ascribed to her, the Jury would of course acquit the prisoner; but if, on the other hand, they were of opinion that facts weighed against the prisoner, His Honor felt confident that in the discharge of their important duty as Jurors, they would dismiss from their minds all consideration for the sex, and condition, in other respects, of the prisoner, and arrive at such a verdict as was due to the justice of the country on the one hand, and to the prisoner on the other.

The Jury, at the conclusion of the learned Judge's address, retired to consider on their verdict.  After remaining out of Court for about three quarters of an hour, the Foreman returned with an announcement that the Jury could not agree in their verdict, and wished to have the opinion of the Court as to how they were to act.

The Judge put the question to the Attorney General, when the latter observed he was willing to withdraw a Juror.  The other Jurors were, upon this, called from their room, and the question being put as to whether they were likely to come to an unanimous verdict by a longer confinement, and answered in the negative, the Attorney General consented to the prisoner's discharge.  She was quite a young woman, and curiosity kept the Court crowded throughout the entire day.

Notes

[1 ] See also report of the case by Sydney Gazette, 29 August 1828, calling the defendant Beeby rather than Feeby.

[2 ] The Sydney Gazette, 29 August 1828, reported the following exchange: "The prisoner's Counsel pressed it upon the Court, that the confession of the prisoner that the property was in the possession of Baker, was caused by the promise made by the prosecutor that there should be no more about it, if she would make a disclosure, and contended that it should, therefore, be rejected altogether.

"The learned Judge over-ruled Mr. Rowe's objection, inasmuch as, upon the evidence of the prosecutor, it appeared, that the prisoner had herself offered to tell where the property was, if he would say no more about.  His Honor, however, after summing up the whole of the evidence, told the Jury, if they were of opinion that the confession of the prisoner was made under influence of hope from any promise held out to her by the prosecutor, and that the subsequent confession to the constables, was made under the same impression in consequence of what the prosecutor stated, that they would be warranted in finding a verdict of not guilty, upon the humane principle of the British law, which would not suffer an individual to be unwittingly the instrument of his own conviction."

A similar principle was at issue in the prosecution of John Colley and William Johnstone on 24 April 1829 (Sydney Gazette, 4 April 1829).  Colley's counsel objected to the admission of his written confession.  He had confessed after being told by a constable that it would be better for him to speak the truth.  Dowling J. admitted the confession, which was made to a magistrate, on the ground that an inducement by one person does not invalidate a confession subsequently made to another. 

Evidence of a confession was ruled inadmissible in the prosecution of Mary Ann Gallagher on 13 September 1830.  The defendant had been told that "it would be better for her to confess":Sydney Gazette, 14 September 1830.

See also R. v. Carter, reported in the Australian, 12 and 23 June 1829 (confession refused in first trial, but found guilty on second trial when confession admitted as evidence).

Published by the Division of Law, Macquarie University