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

R v Kaine [1830] NSWSupC 2

stealing, horse and cattle, self-incrimination, approver, evidence by

Supreme Court of New South Wales

Stephen J., 26 January 1830

Source: Sydney Gazette, 2 February 1830

J. Kaine was indicted for stealing a horse, the property of Mr. Redfern; and also, for stealing cows, &c. the property of the late John Thomas Campbell, Esq.

Mr. S. Stephen and Mr. Therry conducted the defence.

The trial lasted from ten o'clock in the morning until half-past five in the evening.  As in the former case, we will present our readers with a summary of the circumstances.

J. McLaughlin, an approver, was the principal witness.  He stated, that on the 16th of last March, he was in company with the prisoner at the bar, and by him was offered £5 to assist him in catching a horse the property of Mr. Redfern.  He did assist him, and conjointly with him and another person, seized the horse, and on the same evening turned it into Mr. Noonan's paddock; the next day the prisoner took the horse and exchanged it for a grey mare.  According to the evidence of the approver, the prisoner accompanied him for a few days subsequently; they proceeded to the farm of the late Mr. J. T. Campbell, and therefrom stole several cows and a calf.  The witness deposed to several other depredations committed by himself and the prisoner at the bar, of which those above-mentioned were the principal.

Cross-examined by Mr. S. Stephen. -  Witness heard of the murder of Mr. Hassall's man; had heard that a man named Stack was hanged for it; had heard that Stack had charged him with it.

Mr. S. Stephen. - Had you any participation in it?

Mr. Justice Stephen told the witness he was not obliged to answer that question, as the answer to it might tend to criminate himself.

Mr. Therry submitted, on the authority of Rudd's case, that the witness was bound to answer the question.  The condition on which he was admitted an approver was, that he should disclose ``all treasons and felonies which he knew of."

Mr. Justice Stephen said that the rule did not extend to felonies or treasons in which he was himself implicated.

Mr. Therry said, that no such exception was made in the case to which he had referred.  On the contrary, he would suggest that they were included as there were no felonies of which he could know so well as those in which he was implicated.

Mr. Justice Stephen differed from the opinion of Counsel, but at his request, said he would reserve it for further consideration.

Cross-examination continued by Mr. S. Stephen. - In the course of the further cross-examination of this witness, he admitted that he had been several times flogged; that he had been sentenced to a penal settlement; that he had been taken up as a bushranger; that he had been charged with murder; that he had been charged with robbing the prisoner at the bar, and assaulting him; and that on one occasion he had beaten him so as to cause the blood to flow from his head; he was known throughout the country by the name of ``Big Jack;" was now in jail under a charge of felony; had once escaped from prison; and had heard of his name being advertised in the Gazette, and a reward offered for his apprehension.  This was the principal evidence in support of the prosecution.  It was further proved that a horse had been stolen from Mr. Redfern, corresponding to the description mentioned by the last witness.

On the part of the defence, several witnesses were called, who stated that the prisoner, Kaine was at his house during the period which McLaughlin had alleged that he was on an expedition of cattle-stealing with him.

Lieut. Butler, 39th Regt., the Commandant at Illawarra, stated that he had taken up the witness (McLaughlin) last June as a bushranger.  He was a notorious and dangerous character in the neighbourhood of Illawarra.  His character was such that he (Mr. Butler) would not believe him upon his oath.

Mr. Justice Stephen briefly charged the Jury.  He recapitulated the evidence, and told them that he would leave to their discretion what degree of credit was due to the witness, McLaughlin.  It was true his character was very bad, but at the same time they (the Jury) would consider that he was an approver, and the character of such a person, as a matter of necessity, must always be exceptionable. 

The Jury retired for a short time, and returned a verdict - Not Guilty.  The prisoner was then discharged.

Published by the Division of Law, Macquarie University