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

R v Rafferty and Timmins [1830] NSWSupC 63

breaking and entering, confession

Supreme Court of New South Wales

Forbes C.J., 8 September 1830

Source: Sydney Gazette, 9 September 1830

Thomas Rafferty and Francis Timmins were indicted for breaking and entering the dwelling house of Philip Casey, at Castle Hill, and stealing therein several articles, his property.

Philip Casey said, that one day, about 12 months ago, he had occasion to come to Sydney, and left his dwelling, a log house, secured; that on the following day, on his return, he found that it had been broken into, and a blanket, a hammock, six bags, and sevenpence in coppers taken away.  Some time after the robbery, the prisoner, Timmins, who is a government servant to Rafferty, came to the dwelling of the prosecutor, and told him that he and his master had committed the robbery, and pointed out the very places from which the articles had been stolen.  The property was subsequently found in the house of the prisoner, Rafferty, in a room and on a bed where he slept.

The Attorney General, here declared his intention to proceed no further in the case against Rafferty, but to indict him as a receiver, calling the other prisoner as a witness.

Mr. Therry, who defended Rafferty, protested against such a course.  It was, said the learned gentleman, making the confession of Timmins, which, in this case, was only evidence against himself, available in another proceeding against Rafferty, than which nothing could be more unfair.  He contended that such a course was wholly unprecedented in English practice, whatever it might be in this Colony.

The learned Judge then summed up the evidence, telling the Jury, that there was nothing to affect Rafferty except the confession of Timmins, which could only be taken against himself; Rafferty not being present at the time it was made, nor no evidence to connect him with it, whatever moral impression might be entertained on the case.  There was, therefore, a want of legal evidence to convict him; but with respect to Timmins, there was his own confession made at two separate times to Casey and the constable.

The Jury found Timmins - Guilty.  Rafferty - Not Guilty.

The prisoners were both remanded.

Published by the Division of Law, Macquarie University