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

R. v. Kelly (No. 1) [1828] NSWSupC 65

stealing in dwelling house, larceny, reception of English law

Supreme Court of New South Wales

Dowling J., 25 August 1828

Source: Australian, 27 August 1828

Thomas Kelly was indicted for stealing sundry articles, in the dwelling-house of Mr. Arthur Hill, who deposed, that on the 17th day of July last, having occasion to look for some articles, which he suspected had been stolen from him, he missed the bolster of a sofa, a looking glass, and a blue cloth cover, all of which articles he saw next day at the Police Office.  The prisoner was then in custody.[1 ]  He had formerly lived in witness's service.

George Arfield deposed, that he met the prisoner walking in a direction from St. James's Church, towards Macquarie-street, carrying a bundle and a looking glass in his hands.  The looking glass, bolster, and table cover, now produced, are the same.  This was between 7 and 8 o'clock in the evening.  Prisoner, on being asked where he got the property, said he got them from Dr. Bowman, and afterwards said he had found them.  Witness gave up both prisoner and property in charge to Thornton a constable.

Sarah Caffrey was servant to the prosecutor on the 17th of July last on the 16th, several articles of wearing apparel were stolen from her, which she saw next morning at the Police Office.  The witness identified some of the property produced as belonging to prosecutor.

George Thornton, wardsman, deposed to the prisoner being given into his custody by the witness Arfield.  On searching him, found in his hat a wrapper containing a piece of blue cloth, some shoe brushes, and an apron, which he said did not belong to him.

The prisoner offered nothing in the way of defence.

The learned Judge, in summing up the case to the Jury, told them that they must dismiss altogether from their minds, the capital part of the charge.  Until a late enactment, an old statute of Anne, made it a capital felony to steal in any dwelling-house above the value of 40s.; by the Legislature, by the 28 Geo. 4, taking into consideration the depression of money since the passing of the Act of Anne, had repealed that Act, and made it only capital where the extent of property stolen was above the value of 5l.[2 ]

Upon the evidence, the learned Judge considered there was a strong presumption that the property came feloniously into the prisoner's possession; for where stolen goods were found in the possession of an individual, it becomes him to account satisfactorily for the same.  The Jury found the prisoner guilty of larceny.[3 ]


[1 ] See also Sydney Gazette, 27 August 1828.

[2 ] On the adoption of the new criminal laws, see Applicability of Criminal Laws Opinion, 1828.

[3 ] He was sentenced to two years in irons on the roads: Sydney Gazette, 8 September 1828.

Published by the Division of Law, Macquarie University