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

R v Simms and others (1831) NSW Sel Cas (Dowling) 132; [1831] NSWSupC 43

felony attaint - convict evidence - pardon - approver

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 27 June 1827

Source: Sydney Gazette, 30 June 1831[1 ]

Thomas Simms, Michael O'Brien, Mary O'Brien, James O'Hara, Mary Ann O'Hara, John O'Hara, and Mary O'Hara, convicted of receiving stolen property, being placed at the bar,

Mr. Therry rose to renew the objections, raised by him at the trials of the prisoners, to the competency of the approver, Walmsley, and requested, before he proceeded with his argument, that the instrument purporting to be a pardon might be read.

Mr. Gurner read the pardon, which recited that John Walmsley had been convicted, on two indictments, for house-breaking and highway robbery; but that, in consideration of some favourable circumstances which had been made to appear to the  Governor, His Excellency, by virtue, and in pursuance of the power vested in him, had been pleased to grant a free and unconditional pardon for his said offences.

Mr. Therry - It being admitted in the first instance, that Walmsley was an incompetent witness, this instrument was handed in to restore his competency, but I contend, it  cannot accomplish that object.  Any pardon conferred by the Governor of this Colony, however properly prepared, must partake of the nature of a conditional pardon, until it shall have arrived at the last stage of completion.  The Act of Parliament, under which the Governor exercised the power of pardoning or remitting the sentences of offenders, expressly provides that such pardons or remissions shall be subject to the approval of His Majesty, to be signified through the Secretary of State.  Until this pardon shall have been so allowed, therefore, I contend it cannot be looked upon as unconditional; and that if it be conditional, it is not sufficient to restore the holder's competency as a witness.  Upon this point, I would call your Honors' attention to the case of the King against Dwyer and others, decided by the Chief Justice, on the 30th of March, 1825.  In that case, the then Attorney General tendered, as an approver, a man named Edward Power, whose competency to give evidence was objected to on behalf of the prisoners, on the ground of his then being a capital convict, under sentence of death, for an offence committed in this Colony.  To this objection the Governor's pardon on condition of the offender's transportation to a penal settlement for a given period, was pleaded, and objected to on the ground among others, that it was conditional, and that the condition being unfulfilled, the approver's competency to give evidence was not restored.  The learned Judge, after hearing argument on both sides, ruled that the pardon was not sufficiently free from conditions for him to admit the approver's testimony; and there being no other evidence to sustain the case against the prisoners, the Attorney general relinquished the prosecution.  I admit, continued the learned Counsel, that the condition in that case was different from the condition in this; still here is a condition - namely, the approval of His Majesty, and I contend, until that approval shall have been obtained, in the manner pointed out by the Act of Parliament, that his instrument cannot restore the competency of the witness.  Then, your Honors, I have next to contend, if the Governor can grant pardons, that this instrument is informal and void; inasmuch as, his Excellency cannot dispense with those forms which the King himself is bound by; and in this case, if the pardon had borne the signature of his Royal Master, instead of that of his Excellency Ralph Darling, I contend that it would be informal.  The Governor can only exercise a delegated power in the right of the King.  Now here, there is no acknowledgment whatever of the source from which his Excellency derives that power.  To have been efficacious, the pardon should have been granted in the name of the King, whereas it is really granted in the name of the Governor.  Every delegated authority from the King, must be exercised in the name of the King; and I contend, therefore, that this objection is, of itself, fatal to the instrument presented to the Court.  But there is also another objection, to which I have alluded, - namely, that if the pardon were complete in all other respects, still there being no attainder recited, but merely that the party had been tried and convicted, it would be void on that ground alone.  [HawkinsP. C. b 2 c 37 ยง 8.]  Again, with respect to the approver's competency, I would urge upon the Court the practice which prevails in England, not to admit an accomplaice as King's evidence, if it appears that he is charged with any other felonies than that on the trial of which he is to be a witness.  [Carrington and Payne's Crown Law, p. 62]  Now, it is remarkable, in the pardon granted to the approver in this case, that it is limited to two offences for which he had been tried and found guilty; and it must be within the cognizance of the judges who tried the cases of the prisoners at the bar, that Walmsley stood before them self-convicted of numerous felonies.

Mr. Justice Dowling. - In the case tried before me, Mr. Therry, I expressly told the witness that he was not bound to answer questions relating to any other felonies than those for which he was pardoned.  I also told him if he confessed to a felony before me, I should feel it my duty to order him into the dock to be tried.

Mr. Therry - However, your Honors, I contend, first, that the provisions of the Act of  Parliament not having been complied with, the pardon must be viewed as conditional; secondly, if the Governor has the power to pardon, that it is a delegated power, and must be exercised in the name of the King; and, thirdly, that no attainder being set forth  in the instrument purporting to be a pardon, it is informal and void.  Upon these grounds, I submit that the evidence of the approver was improperly admitted.

Mr. Williams briefly followed on the same side.

The Chief Justice asked if there were any other cases in which a question as to the  admissability of an approver was to be raised?

Mr. Foster replied, that in the case of the parties convicted of the Bank robbery, a question would be raised respecting the competency to give evidence of a convict attaint, convicted in the colony, who had not received a pardon.

The Court intimated its desire to hear the arguments in that case, in order that they might at once come to a consideration of the whole matter; and, in the meantime, directed the prisoners at the bar to be remanded.

Forbes C.J., Stephen and Dowling JJ, 28 June 1831

Source: Sydney Gazette, 30 June 1831

Thomas Simms, Michael O'Brien, Mary O'Brien, James O'Hara, Mary Ann O'Hara, John O'Hara, and Mary O'Hara, convicted of receiving stolen property, were then called up for judgment.

Mr. Therry asked if the Court thought it necessary that he should recapitulate the objections raised by him in this case.

The Court said it had fully considered the whole of the case, and was prepared to dispose of it.

The prisoners having been placed at the bar, the

Chief Justice addressed them to the following effect:- Before His Honor Mr. Justice  Stephen proceeds to pass sentence in this case, I will briefly state the grounds upon which the Court overrules the objections raised against the judgment about to be pronounced.  Two objections have been urged in this case - one to the authority and form of the pardon granted to the witness, Walmsley, the other to the character of the testimony itself.  With respect to the first point, namely, the authority upon which the pardon is granted, and the form in which it is worded, I shall shortly observe, that the reference made to the New South Wales Act, which requires that all remissions or pardons granted by the Governor shall be confirmed by His Majesty, and provides that, in the mean time, they shall merely have the effect of sign-manual pardons, has relation only to the Governor's Commission under the 30th Geo. III c. 47, which is a standing Commission, utterly distinct from his general Commission as the King's Representative in this Colony.  The Governor of New South Wales has two distinct and separate powers: one under his Commission in pursuance of the 30th Geo. III., and the other under his general Commission, as Governor, over local offences.  It is well known, that when convicts were first transported to this Colony, it was thought expedient to invest the Governor with power to pardon offences committed in England; and, as it was supposed that the King could not delegate that prerogative, it was found necessary to resort to an Act of Parliament - the 30th Geo. III., under which a Commission issued empowering the Governors of this Colony to pardon offences which, before the passing of that Act, could only be pardoned under the great seal.  Now the New South Wales Acts - 4th Geo. IV. c. 96, and 9th Geo. IV. c. 83, both refer to the 30th Geo. III., and place a limit on the power of the Governor, by providing that all instruments by which he shall pardon or remit the sentences of offenders convicted in the Mother Country, shall, in future be transmitted for his Majesty's approval, to be signified through the Secretary of State.  This portion of the law, therefore, clearly relates to crimes committed and judgments passed in England.  Independently, however, of the power so derived from the Crown, there is a power given to the Governor of this, in common with the Governors of all other British Colonies, of dispensing that part of the administration of justice which consists in mercy.  He is invested with a power to exercise the prerogative of mercy, limited only in the cases of treason and murder - which are excepted, rather as a matter of direction, until the King's pleasure be known: but with respect to all subordinate offences, committed within his own jurisdiction, he has, unquestionably, the power to pardon.  The pardon exhibited yesterday before the Court was to that effect, and I apprehend the Governor's power to grant it is indisputable.  With respect to the particular objection, that the pardon is not issued in the name of the King.  I can only say that I have had occasion several times, to see pardons exhibited before this Court, and that they always ran in the same form.  I am not prepared to say that I see any objection to the form so exercised, and am of opinion that this point is therefore untenable.  Then, as to the omissions of the judgment and attainder, it appears to me that this instrument conveys a sufficient body of facts to have all the effect of a pardon to the extent to which it goes.  It has also been urged in argument, that the approver, being charged with other offences besides that on the trial of which he was tendered as a witness, was not competent to give evidence.  But, I apprehend, there is a material distinction between a party being charged with offences, and his talking freely, when in the witness box, of crimes which he has committed on other occasions.  Certainly that could not destroy his competency, although it might affect his credit.  Upon the whole of the case, therefore, we are of opinion that no ground has been shown upon which we can stay the sentence which the Court feels itself bound to pass upon the prisoners, for the offences of which they have been severally convicted.

Mr. Justice Stephen then pronounced the judgement of the Court, and sentenced the prisoners to be severally transported to such penal settlement as His Excellency the Governor may direct and appoint, for the term of fourteen years.


[1 ] This report was pasted into Dowling, Proceedings of the Supreme Court, Vol. 56, Archives Office of New South Wales, 2/3239, p. 169.

Justice Dowling summarised the principle in this case as follows (Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 74): "The Governor of New South Wales has a right to grant a pardon for an offence committed in this territory without being subject to the condition of the kings approbation except for Treason and murder.  A pardon Granted in pursuance of this however need not run in the name of the King nor need it set out the Judgment and attainder, so as to make the person to whom it is granted an incompetent witness."  See also Sydney Herald, 20 June 1831.

Published by the Division of Law, Macquarie University