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

R v Oram, Spinks and Smith (1830) NSW Sel Cas (Dowling) 329; [1830] NSWSupC 47

approver,  evidence by, principal and accessory, women defendants in crime

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 22 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[p. 338]

[Where a Thief and two receivers were tried together, and an accomplice was admitted to prove the case, but was confirmed as to the Thief only.  Held that to support the conviction it was not necessary that he should be confirmed as to the receivers]

Supreme Court

Tuesday 22nd June 1830

Forbes CJ and myself[1 ] sat this day to pass sentence on prisoners convicted before us respectively during the Current gaol delivery.

Rex v Wm Oram  Ann Spinks

Joseph  Smith

These prisoners had been tried before me[2 ] Oram for stealing and Spinks and Smith for knowingly receiving certain goods the property of AB Sparke Esqr.  The principal witness was a man named Brown, an accomplice.  As to that part of this evidence which relates the offence of Oram he was was [sic] confirmed by other witnesses, but he was wholly unconfirmed as to the case against the receivers  Dowling J ruled at the trial that as the accomplice was unconfirmed on his evidence as to one of the prisoners [p. 339] the Jury if they believed him might convict the receivers, though as to them he was unconfirmed.  The Jury found all the prisoners guilty.

The prisoners being now brought up for judgment.

Rowe submitted that the prisoner Spinks and Smith were wrongfully convicted, there being no evidence to confirm the accomplice as to their guilt.

Suppose the receivers had been tried seperately upon the evidence of the accomplice  The Judge must have directed an acquittal because there was no confirmation of his evidence.  Why then should they not have the same advantage though tried with the Thief; for the circumstance of the three prisoners being tried together ought not to make any [p. 340] difference.  Their offences were totally different.  If not different he admitted that the objection would not have been of so much weight he cited 2 Campbell 133. Cowper 336.

Forbes CJ was of opinion that there was nothing in the objection for it had been holden that the jury might convict upon the unconfirmed testimony of accomplice if they thought him worthy of credit.

Dowling J cited The King v Dawber 2 Stark N.P.L. 34. where it was held that if an accomplice be confirmed in his evidence against one prisoner but not confirmed with respect to another, both might be convicted, if the Jury thought the accomplice worthy of credit.  It was a mere distinction that the accomplice's evidence was sufficient to convict one prisoner but not another, though the Prisoner might be charged with different offences.

Per Curiam.  There is nothing in the objection.[3 ]

 

Notes

[1 ] As this is the notebook of Dowling J., this refers to him.

[2 ] Marginal note in manuscript: "Vide Ante Vol  36/ p 168." This refers to Dowling, Proceedings of the Supreme Court of New South Wales 1828-40,  Archives Office of New South Wales, reference 2/3184-396, 2/3400-33.

[3 ] Oram was sentenced to be worked in irons for one year to commence at the expiry of his existing sentence, Joseph Smith to be transported for seven years, and Ann Spinks to transportation for three years: Sydney Gazette, 24 June 1830; Australian, 25 June 1830.

Published by the Division of Law, Macquarie University