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

R. v. Walker, Keefe, Cuff, Adkins and Coates [1828] NSWSupC 8

stealing, sheep, Bathurst, receiving stolen goods, sheep farming, approver, evidence by

Supreme Court of New South Wales

Stephen J., 20 and 21 February 1828

Source: Australian, 22 February 1828

George Walker, Cornelius Keefe, and Patrick Cuff, were indicted as principals in the first degree, for having, on the 20th day of October, 1826, stolen ten sheep and ten lambs, the property of Mr. Samuel Terry,[1 ] and two others, Caleb Adkins and William Coates, for receiving the said sheep, knowing them to have been stolen.  On the side of the prosecution the first witness called was

JOHN DONNAHOE.  Examined.  Is a prisoner of the crown, and at present in government service.  About eighteen months ago was an assigned servant to the prosecutor, Mr. S. Terry.  Recollects about this period the prisoners Keefe, Walker, and Cuff coming with three distinct flocks of sheep to the Wimberndale station near Bathurst.  Keefe came first with his flock, and drove them into Walker's yard.  Shortly after Walker himself came into the yard, when Keefe pointed to a ewe sheep, and told Walker to catch it, which he did, and put the animal into a contiguous drafting yard.  Cuff observing witness look on, desired him to go away and get supper ready.  At this time, he, witness was employed in the capacity of hut keeper.  After preparing supper in the hut witness returned to the yard, and found that during his absence another sheep had been placed there.  The yard was not more than two rods distant from the hut, and the station at this time was under the management of Cuff and Walker.  Keefe, upon witness's return, was employed in driving the flock out of the yard, and to some distance from it.  Prisoner Walker then drove the flocks of sheep, under his charge, into the same yard.  Whilst doing so, Cuff a second time desired witness to go away, observing that witness was too busy about the place.  Had just before seen Cuff drive one of his sheep out of the flock into the drafting yard.  Walker also took a sheep from his flock in his arms, and put it into the same yard with the other sheep placed there by Cuff.  On their coming into the hut to supper, Cuff asked if witness would watch Keef's flock that night.  Witness refusing, some disagreement arose, which induced witness to take his bed out of doors, and attempt to sleep in the open air.  It happened that the spot witness had pitched upon to sleep that night, the weather being excessively warm, commanded a distinct view of all the sheep pens.  From being a considerable time on the station, was well acquainted with the brand used by the prosecutor.  It was a small S. T. inclosed.  Knows that in branding those sheep, when the brand has been very hot, that the letters have run together into a welt, so that part only of the letter T could barely be seen.  About twelve o'clock the same night saw the prisoner Adkins go into the hut, spoke to Adkins, but received no answer.  Overheard Adkins say it was time for starting with the sheep, when Cuff observed that they needed to wait till that fellow, meaning witness, had fallen asleep.  A few minutes after Cuff, Walker, and Adkins, came out of the hut together, and went into the drafting yard, from whence they drove out the sheep, and put them on the road leading towards another station of the prosecutor's, and which also, by a short cut, was the way to prisoner Coates's farm.  Towards daybreak Cuff and Williams returned, with their small clothes quite wet.  Coates's station was about five miles off, and from the direction that the sheep were driven in, they must have gone through a water creek.  Witness did hear Cuff and Walker say to each other, after helping Adkins over the Wimberndale Creek, he surely would be able to manage the sheep the rest of the way.  About the usual hour that morning Cuff and Walker took out their sheep to depasture, and returned in the evening.  After securing their sheep in the pens, was asked by one of the prisoners, cannot say which, to take charge of the sheep, as they were going as far as Coates's.  Agreed to do so.  Walker and Cuff went away, and returned about midnight, bringing with them a quantity of tea, sugar, soap, &c.  Next morning, whilst at breakfast, heard Cuff and Walker complaining of the badness of the tea which they were drinking.  Heard one say they would have no more of Coates's rubbish of tea, and added, "I am sure he need not grumble, for he had as fine a young sheep as any in Mr. Terry's flocks."  Coates was frequently in the habit of coming to the station.  Has seen him being sheep skins there, and leave them with the prisoner Cuff.  During witness's stay in Sydney has more than once met Coates in the street.  On Sunday last Coates stopped him, and asked when this business, alluding to the trial, was to be brought on.  Witness was about to walk away, when Coates stopped him, and said, "If you do the thing that is right, you shall not want for money nor a friend while you live.  Recollect my wife and family, and make things as easy as you can."  He added that Franklin, one of the crown witnesses in this trial, would go back from what he said at Bathurst, and there could be no danger.  Witness refused to listen to any offers on this score, when Coates, in a great passion, said, "Then go and do your best."

[This witness underwent a long and a severe examination by the prisoners' Counsel.  He was altogether nearly three hours in the witness's box.  He confessed having once been convicted of perjury, and being punished for it, and also that his implication in the stealing of the cattle in question was not a solitary instance of the kind. - recollected meeting Coates in a public-house in Pitt-street, who, on seeing him, spoke to the landlord to turn him out, as he was not fit society for any one.  The witness admitted he was a runaway from an iron-gang, when he went to a Magistrate to give information against the prisoners, and that this was about fifteen months after the occurrence of the sheep stealing affair.]

GEO. BENJAMIN FRANKLIN deposed that one morning, about shearing time, in the year 1826, he recollected the circumstance of the prisoner Adkins bringing some sheep to Coates's station.  Does not know what was he number so brought, nor what or where were their particular marks.  Knows, however, that Adkins, when he brought the sheep to the station, had his trowsers quite wet.  Adkins said he had crossed a creek, and been up all night.  The sheep Adkins brought at that time had a mark on the face.

Mr. SAMUEL TERRY deposed, that in the course of the year 1826 he sustained a severe loss in his flocks of sheep from depredators.  His brand is a mark S T under the left eye.  In the month of November, 1826, the approver in this case, Donnahoe, was employed in washing sheep at Bathurst.  It happened that witness indulged this man with more liquor than the other men, who, on particular occasions, expected some indulgence of the sort.  The liquor seemed to impart an open mind to Donahoe [sic], who one day called the prosecutor aside, and advised him to get his sheep re-branded, particularly the lambs, which he said were being carried away by wholesale.  He refused to give any further information on the subject, declining as a reason that by doing so his life would be dangered.

Cross-examined. - The prisoner Cuff had been in witness's employ for the last seventeen years.  Prisoner Walker was a tree hired servant.  He is a man in whom witness always was and is still disposed to place a great deal of confidence.  Believes Donnahoe, the approver, to be a very dishonest and in other respects bad man.

JAMES BURGESS examined --- Has been in Mr. Terry's service between two and three years.  Has seen some sheep in the charge of the mounted police at Bathurst, which bore a brand somewhat like the prosecutor's.  There was a letter C branded under the left eye, but the brand was so obscure as to render it difficult for any person to make it out in any way distinctly.

[At this stage of the trial, it being then past five o'clock, intimation was given to the Court, that there were several more witnesses to be called on the part of the prosecution, and that there were as many as fourteen on behalf of the prisoners.  The Judge upon this suggested to the Counsel for and against the prosecution, the propriety of the Court adjourning, and deferring a further hearing of the case till ten o'clock next day.  Counsel for the prisoners did not object to this arrangement, and the Court in consequence was adjourned till Thursday, when the Court met at the usual hour, and the trial was proceeded upon.]

Mr. CHARLES SUTTER examined on the side of the prosecution - Is a settler living at Bathurst.  In the month of September, 1827, the mounted police searched his flock for some sheep, on suspicion that some of them were Mr. Terry's.  Blackman, the chief constable, accompanied by one of the mounted police, and an overseer of the name of Gardner, then in Mr. Terry's employ, after examining the sheep, collected, and took away with them about eighteen head.  These sheep witness got from the prisoners Adkins and Coates, with whom he exchanged the said sheep for a mare.  Adkins and Coates drove a flock of sheep, which belonged to them, into a washing-yard, and selected from among the number, the sheep in question, which witness purchased, and afterwards drove away to his own station.  There were several of witness's servants present at the time of this purchase.  During the time of sale witness made some enquiries about the quality and breed of the sheep.  Adkins said he had purchased them from Mr. Jones, a settler in the neighbourhood, and who is an extensive stock holder in that district.  Coates, who was present at this conversation, confirmed the statement made by Adkins, and said he had then a receipt in his possession for the purchase of the sheep.  He further undertook to be answerable for Adkins buying the sheep from Jones.  Witness knows that the prisoners Adkins and Coates run their sheep in flocks together.  Examined the brands of the sheep at the time of purchase.  The brand was a cross.  There was a sort of welt on the face of the sheep, but no one could distinctly say what was intended by it.  They were lambs, with he exception of one or two.  Recollects one ewe, which was thrown into the bargain - that one had a large welt, and appeared to have been once branded with a round brand, but was badly burnt.

Cross-examined - Coates's sheep are marked J C. From the knowledge which witness has of sheep and branding them, there was nothing uncommon about the sheep he bought.  Thinks it would not be strange if people, whose christian names happened to be John William, and the surname to be Coates, to brand J C. only as the brand of John Coates, leaving the christian name of William entirely out.  Witness bought the sheep in question as Adkins's sheep.  The only interest which Coates appeared to have in the disposal of these sheep, was in assuring witness that Adkins had bought them of Jones, a settler, who had a farm in the neighbourhood.  Jones (the individual alluded to) has since spoken to witness on the subject of those sheep, and told him that the prisoner Adkins had on one occasion made a purchase of sheep from him.  Witness has spoken of a conversation he had with the prisoner Coates.  On that occasion Coates said it was agreed between him and Adkins, that he should have the wool the sheep produced, by way of remuneration for the sheep belonging to Adkins grazing on his (Coates's) farm.  Cannot tell what were the brands of the sheep bought by witness of Adkins.  He bought eighteen on the whole.

Re-examined - The marks on the sheep might have been one close brand.  It however, was so imperfectly made, that no person could distinguish a letter in it.

Mr. JAMES BLACKMAN searched the flock of Mr. Sutter, in the district of Bathurst, and took thereout seventeen sheep - they resembled the prosecutor's sheep, with the difference of a cross, which appeared not to be a natural mark.

This was the case for the prosecution.

For the defence the following witnesses were called:-

- RUGG, a deputy overseer of Mr. Terry's stated that some sheep of Mr. Terry's were lost from the flock of a shepherd named West, and that he went to the prisoner Coates's station, being the adjoining run, to look for them, but found none.  If they had been there, he must have seen them.  The prisoners Walker, Cuff, and Keefe, were shepherds in Mr. Terry's employ at this time.  If any sheep had been missing at this period from either of those men's flocks, he must have known it, from having to muster them at stated periods.  The sheep that were lost belonged to West's flock.  Witness cannot be mistaken in his master's brand. - He examined very carefully the prisoner Coates's flock of sheep, but found none of Mr. Terry's among them.

Wm. CHAMBERS. - Has also been in Mr. Terry's employ as overseer.  Has frequently assisted in branding sheep; Mr. Terry's sheep; has had frequent opportunities of noticing the prisoner Coates's flock, both in the pens and on the run, whilst grazing.  After the loss of Mr. Terry's sheep was discovered, he was called upon by the Magistrates at Bathurst to inspect some sheep which were there in charge of the mounted police[.]  Understood those sheep to have been sold by Coates and Adkins to Mr. Sutter, from whom they were taken.  Witness, on being examined before the Bathurst Magistrates respecting the identity of the sheep in question, and for which the prisoners now arraigned were accused with being complicated in stealing.  Made a deposition that they were none of Mr. Terry's property.  The prisoner Coates was in close confinement at the time.  Witness is enabled to swear most positively that the sheep, the subject of present enquiry, so far from belonging to any of the blocks of Mr. Terry, does not even bear a resemblance to any sheep Mr. T has.  Prisoner Coates's sheep are of a superior breed, and generally speaking, more adapted for the cultivation of wool than for the purposes of slaughter.

Counsel for the prisoners Coates and Adkins here closed their case.

The learned Judge recapitulated the evidence to the Jury at great length, after which the Jury retired to their room, where they remained in consultation for nearly an hour, and then returning into Court, found the prisoners Walker, Cuff, and Keefe, Guilty of the capital part of the charge, viz sheep stealing; Adkins Guilty of receiving the sheep laid in the indictment, knowing the same to have been feloniously stolen; and William Coates, the remaining prisoner, Not Guilty, who was accordingly discharged by proclamation.

The prisoners who were found guilty were then remanded to custody, to be brought up on a future day for judgment.

Notes

[1 ] A former convict, Samuel Terry was one of the wealthiest people in the colony.  See also R. v. Absolam and Gardner, 1828.

This trial was also reported by the Sydney Gazette, 22 February 1828.  Stephen prosecuted, and Dr Wardell was counsel for the defendants.

Published by the Division of Law, Macquarie University