Skip to Content

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

R. v. Kable and Murray [1828] NSWSupC 69

criminal procedure, delays, stealing cattle, witnesses' expenses, Bathurst

Supreme Court of New South Wales

Hearing, 30 August 1828

Source: Australian, 3 September 1828


In the Supreme Court on Saturday last, a motion was made by Mr. Sydney Stephen, Counsel, on behalf of a person named George Kable, in custody on a charge of cattle-stealing, praying that the Court would interpose its authority in commanding the Crown Officers to bring on the trial of Kable instanter.  The learned Counsel grounded his application to the Court on an affidavit, which went to shew that the case against Kable had been set down by the Crown Officers for trial on the 18th ult. - conformably with which, the prisoner had caused subpoenas to be served on persons whom he proposed calling as witnesses on his part, and who had been in constant daily attendance upon the Court from that time till the very moment of the learned Council making his present application - a period of nearly twelve days - during which interval, a delay solely attributable to the Crown Officers, there had been an expense incurred by his client, of not less than 5l. sterling daily, in defraying the charges of witnesses, whose testimony promised to be so very essential to the defence; but notwithstanding this liberality, on the part of his client, the witnesses had that morning intimated to him (Mr. Stephen) that they would remain no longer in Sydney, as each man's interests needed his immediate presence at home.[1 ]

The Attorney-General, in reply to the facts put in; observed, that the learned Counsel was perfectly correct as to the day originally set down for trial and he regretted that the parties concerned had been put to the unpleasantness of delay; but that, he (the Attorney-General) begged leave to add, he had it not in his power to avoid - inasmuch as a material witness for the prosecution was wanting, and not yet forthcoming.

The Court, in answer to the application, observed, that while it regretted the difficulty which was so well known to prevail, of collecting witnesses together on a particular day named in the subpoenas, and particularly Crown witnesses, it could not allow it to be supposed that witnesses, on whom a notice had been served to attend upon the Court, were at liberty to depart the Court without permission.  It was true that individuals suffered much from the delays which were at all times unavoidable in the trying of criminal cases; but private inconvenience must be a secondary consideration, where the public weal had to be consulted.  Therefore for a witness to suppose, that because a trial was not brought on, on the particular day set forth in his subpoena, and to depart the Court in consequence, with a determination not to be in attendance upon the resuming of the Court on every succeeding day, till the coming on of the trial in which the witness was concerned, was direct contumacy on his part, and fell within that description of contempt of process of the Court, for which the Judges had it in their power to proceed to coercive measures to ensure attendance, as the binding of a party in responsible sureties to be forthcoming as a witness on any day of sittings during term.

The Attorney General consented to bring on the trial positively next ensuing Court day.[2 ]


Dowling J., 1 September 1828

Source: Australian, 5 September 1828

George Kable, and Matthew Murray stood capitally indicted for stealing one cow, value £5, the property of Mr. William Scottow Parker, on the 12th of July last.[3 ]

Doctor Wardell, as senior Counsel, took his proper place within the bar, and Dr. W. and Mr. Sydney Stephen appeared as Cousel [sic] for both prisoners.  Three head of cattle it was deposed, were, at the time stated, stolen from off a run, at George's Plains, Bathurst, belonging to Mr. Harrison, of Sydney, which cattle the prisoners were suspected to have stolen; but the evidence on this head was not more than presumptive.

For the prisoner Kable it was argued, that the principal witness against him was infected with a spirit of revenge  that Kable was in easy circumstances  a young man married, and with a young family, and a comfortable property in land and stock  so that he could have little incentive to pursue the calling of a cattle stealer; and the learned Judge having left it to the Jury to attach what degree of credit to the respective witnesses for and against the prosecution might seem best,

The Jury brought in a verdict of not guilty, upon which the prisoners were discharged by proclamation.


[1 ] Later in 1828, the Supreme Court declared that witnesses in civil cases who lived in Sydney, had no entitlement to the recovery of expenses even if they wasted many days while waiting for an action to come on.  The Court said that "witnesses are entitled to no allowance for loss of time it is a duty they owe to society to attend Courts of Justice, and is part of the obligation which man owes his neighbour."  Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, pp 32-33.

The Australian reported a similar issue on 6 January 1829: an advocate, Mr Poole, said that one of his clients had been nearly ruined by being called into Sydney from the country, along with three of his four farm servants as witnesses, to defend a matter in the Supreme Court.  The plaintiff had not been ready to go to trial.

[2 ] The  Australian, 28 March 1828, published the following on a related issue:


"A motion was made in the Supreme Court yesterday by the Solicitor-general (Mr. Sampson), which, he said, was in the shape of a suggestion to their Honors on the Bench, that the practice should be amended with regard to the conducting of criminal cases in that Court.  He (Mr. Sampson) had been induced to move this in consequence of a trial which, being positively fixed to be brought on, on the preceding day, had been allowed to be deferred.  The prisoner in that case was arraigned on a charge under Ellenborough's Act, for cutting and maiming, but pleaded that he was not in a condition to go to trial, a material evidence in his behalf, as the prisoner affirmed on affidavit, being absent.  The Solicitor-General, therefore, with a view to prevent such excuses being available in future, wished to press on the attention of the Court, the necessity of some rule or order being made, that at the time of the commitment of parties for trial, the prisoner should then and there declare what witnesses he required to appear in his behalf, when on trial - the crown officers would then take care that the witnesses, both for and against the prosecution, should be in attendance on the Court at the time of trial, and the prisoner would have no such excuses, as were almost daily used, to put off his trial.  This was an application which he (the Solicitor-General) thought deserving the attention of the Court.

"The Chief Justice said he felt some difficulty in making an order of the king, inasmuch as it was a known principle of law, that a prisoner was entitled to give notice of his wish to have witnesses called on his trial, up to the latest moment; and, as in cases of life and death, it was one of so tender a point, his Honor said he did not feel warranted in consenting to an order of the kind prayed for, but would suggest the propriety of the learned Counsel preparing what might on a future day be presented to the Court, when the Court would have the assistance of the other Judges, Mr. Stephens and Mr. Dowling.

"This suggestion of the Chief Justice, Mr. Solicitor-General expressed his intention to follow."

[3 ] See Sydney Gazette, 3 September 1828.

Published by the Division of Law, Macquarie University