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

R. v. Gardener and Yems (1828) NSW Sel Cas (Dowling) 108; [1829] NSWSupC 22

convict evidence - reception of English law - capital punishment, mass execution


Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 6 April 1829[1 ]

Source: Dowling, Proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205[2 ]


[p. 43] The prisoners James Gardener and James Yems were tried and convicted before Forbes CJ. of a capital felony committed at Port Macquarie penal settlement.  All the witnesses in support of the prosecution were convicts attainted of capital felonies committed in the Colony.  It was objected at the trial that these were incompetent witnesses being civiliter mortuus.  The learned Judge said he would reserve the objection for the consideration of the whole Court.

The prisoners now being brought up for judgment, and

Rowe renewed the objection.  All the witnesses to prove the case were capital convicts, which fact was proved in the regular way by producing the records of their conviction.  It was further proved that their attainder had not been reversed, but had been sent to Port Macquarie to expudiate [sic] their offences under a commutation of their sentences [p. 44] by the Governor.  Now these men being dead in law they were utterly disqualified by law from giving evidence in a Court of Justice.  In Drummonds case 1 Leach 337 it was held that the declaration of a convict at the moment of execution, cannot be given in evidence as the declaration of a dying man, for being attainted his testimony could not have been received on oath.  This is clear law in England, and as the law of that country applies here first by implication, and second according to the Statutes 4 G 4. C. 96. & 9 G 4. C. 83. this is a fatal objection & the Judges are bound to recommend a pardon to the prisoners they having been convicted on incompetent evidence. 

Baxter AG.  It is admitted that if the judges of this Court were sitting in a Court of Justice in England, perhaps this would be a fatal objection, but here by the express declaration of Parliament, the laws of England are only in force so far as they are applicable to the state and condition of the Colony.  The rules [p. 45] of evidence are the rules of justice, reason and common sense.  If such an objection were allowed to prevail in a Colony like N.S.W. it would perhaps defeat the ends of justice in two out of three cases, because in the great majority of criminal prosecutions the case depends solely upon the testimony of attainted felons.  The usuage has been to receive such evidence, & long usuage will continue the force of a rule of evidence acted upon in the Courts of the Mother Country.  Such an application, strictly, of the rules of evidence in this country would destroy in a great measure the whole system of practical justice in this Colony.

Forbes C.J.  This point was fixed upon my attention at the trial as one of some difficulty, but I expressed my opinion that it was one upon which no great doubt could be entertained.  The point however having been raised we must decide it.  It certainly is one of the rules or canons of evidence in the English Courts, that a convict attaint is an incompetent witness.  There a different rule prevails, [p. 46] ex necessitate.  In nine cases out of ten of the cases tried before me since I have been in the Colony, this objection might have been taken.  I, however, never heard of such an objection being raised.  The uniform practice has been to admit the testimony of such persons from the necessity of the thing.  The only exception that I know to have been made, has been in the case of a witness who has been convicted of perjury. In all other cases, the evidence of convicts attaint has been received, leaving it to the jury to determine the effect of their evidence, as a question of credit.  Exclusive to the uniform practice, (which in itself carries some weight), imperative necessity compels us to admit such testimony in the administration of Justice.  We are bound to adopt a rule arising from necessity.  The rule of evidence in the Courts of the mother, which excludes the testimony to a witness convicted of an infamous crime, does not apply to the state & condition of [p. 47] this Colony.  No inconvenience, will I apprehend arise in practice from the general principles of such evidence here, where the witness gives his testimony under the obligation of an oath.  At the same time it is a question of credit with the jury - it being for them to say what faith they will put in the testimony of a witness so situated.  They have certainly a greater latitude in judging at the trial as to the nature and character of the evidence, then perhaps in other cases, because in such cases as these, they have the means of discerning the degree of turpitude belonging to the witness.  The jury arrest determine upon the value of such testimony before they can find a verdict of guilty against the party accused.

Stephen J.  I have never heard of such an objection as this being raised in the Courts of this Colony.  Almost all the convictions for felony that I have known, have been substantiated by the testimony of persons convicted of felony.  The reason of admitting such evidence, is that it is the best to be had in the state of society [p. 48] in which we live.  In such cases certainly the objection goes straight to the verdict, but not to the competency of the witness.  The jury are bound to judge of the weight of the testimony, and to exercise a sound discretion as to the credit of the witness standing in such a situation.  In this the jury did exercise their discretion, and we are bound by the conclusion they have formed.  I trust that this will be the last time such a question as this shall be agitated.  The common sense & reason of the thing require that such evidence should be received.  I cannot conceive how it could enter into the head of any body, that such evidence had been improperly received.

Dowling J.  It is a general rule no doubt, that the testimony of a person who by the turpitude of his conduct, has shewn that he is regardless of all laws both human and divine, ought not to be received; for it cannot reasonably be expected that such a person would regard the obligation [p. 49] of an oath; and therefore it may taken that no witness is competent to give evidence in a Court of Justice who has been convicted of any infamous crime.  Statute Ev. Pt. I. s. 67. p. 83.  Bull N. P. 291. Gill. Ev. 120.  Again, where a man is convicted of an offence which is inconsistent with the common principles of honesty and humanity, the law considers his oath to be of no weight and concludes his testimony as of too doubtful and suspicious a nature to be admitted in a Court of Justice to affect the propriety or liberty of others.  These are undoubtedly the canons of evidence laid down and acted upon with the Courts of the Mother Country; but I apprehend that within Court, in the due administration of justice, we must lay down a rule which shall be applicable to the state and condition of the community in which we live.  It appears to me that great inconvenience and mischief would result, from adopting the English rule in the Courts of this Country.  The state of the community will not admit of it.  A vast proportion of the inhabitants of this territory and parts adjacent, are now under punishment for felonies committed in the Mother Country or in the [p. 50] Colony.  In many cases such an objection would operate as a denial of justice.  Offences of the deepest die, if committed in the presence of attainted felons, would go unpunished by reason of the incompetency of such witnesses.  Policy, public convenience and necessity require that such evidence should be recd.[3 ]  I grant that the objection may go to the credit, but not to the competency of the witness.  Great danger would result from admitting such an objection in this Colony.  It would tend to put even these persons themselves out of the protection of the law, against personal evidence.  Nay it would affect all the relations of society.  Civil contracts, wills, bonds and other instruments might be vacated because they happened to be witnessed by persons in this condition - who possibly might be the only witnesses to be procured at the time of their execution.  Independently of the abstract principle and necessity of the thing, I think the invariable usuage which has obtained in the Courts of this country would warrant us in acting upon it in the present instance. - Sentence of death was recorded.[4 ]



[1 ] The Sydney Gazette, 18 April 1829, was apparently referring to this case when it reported the following:

"The point raised as to the admissibility of the evidence of convicts attaint, in the Supreme Court, was argued, on Thursday, before the three Judges, and decided against the learned Counsel by whom it was mooted.  Their Honors held, notwithstanding there was no provision in the 9th Geo. IV. C. 83, as in the repealed New South Wales Act, enabling the Court to receive such testimony as would be rejected in England, still the state of society in the Colony was such, that if the evidence of such persons was held to be inadmissible, it would defeat the ends of justice altogether.  Indeed, their Honors observed, seeing that in many cases which were brought forward for trial, testimony of that nature was all that could be obtained, they were surprised how such a point could have been raised."

The Gazette said that this was decided on "Thursday", was 16 April 1829, not 6 April as the notebook states.

The issue was raised again in R. v. Sullivan, 18 April 1829: Australian, 21 April 1829.  See also Sydney Gazette, 27 August 1829.

[2 ] Part of this was also recorded in Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 188.  The Select Cases version commences with the following summary of the finding in the case, apparently made by Dowling J.: "Convicts attainted of Capital felonies in New South Wales, though the attainders be unreversed are competent witnesses in the Courts of Justice in this Colony."

[3 ] Received.

[4 ] Both were found guilty of stealing in a dwelling house, and sentenced to death: Sydney Gazette, 18 April 1829.  They were both hanged, with six others, on 27 April 1829: Sydney Gazette, 28 April 1829; Australian, 28 April 1829.  Six more were executed on 4 May 1829: Australian, 5 May 1829.

Published by the Division of Law, Macquarie University