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

R v Farrell, Dingle and Woodward (1831) 1 Legge 5; (1831) NSW Sel Cas (Dowling) 136; [1831] NSWSupC 44

felony attaint - convict evidence - appeals, Privy Council - appeals, criminal cases - sentencing discretion, disagreement among judges - death recorded - reception of English law - Legge's Reports

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 27 and 28 June 1831

Source: Sydney Herald, 11 July 1831[1 ]

George Farrel, James Dingle, and Thomas Woodward, were then put to the bar to receive sentence; the two former for the bank robbery; and the latter for receiving part of the property.[2 ]

Mr. S. Stephen moved in arrest of judgment, on the ground that the principle evidence, Blackstone, was incompetent, he being a convict attaint, for an offence committed within the Colony.

Messrs. Therry and Foster followed on the same side.

Tuesday, June 28. - The Judges took their seats this morning to give decisions on the various points of law raised on the former day, in behalf of the prisoners brought up for judgment.

Farrel, Dingle, and Woodward, having been put at the bar, Dr. Wardell, on behalf of the prosecutor, observed to the Court, that he understood several objections had been taken as to the competency of the witness Blackstone, this point he thought the learned Judge had overruled at the time of trial; he felt the danger of the maxim ex necessitate rei, but he saw no danger in this case, it was only in unison with many decisions in this Court.

He felt surprised the question had been mooted, as the Court on a former case in its wisdom, had decided that persons were competent witnesses as well those convicted in this Colony as in England.

Mr. Wentworth on the same side, would make a few observations on another objection which had been taken to Woodward's having been indicted as an acessary instead of receiver; he would rely upon the authority in Archbold, where it was clear a receiver could be indicted in that manner, it was the usual mode, and the only one when indicted with principals.  On the settled form in the books, he contended he had been properly indicted.

Messrs. Foster, Stephens, and Therry appeared for the defendants.

The prisoners were remanded, that the Court might have the full opportunity of considering the points raised.


Forbes C.J., Stephen and Dowling JJ, 23 July 1831

Source: Sydney Gazette, 26 July 1831

The prisoners, Farrell and Dingle, were indicted at the last Criminal Sessions, as principals in the first and second degree, for breaking and entering the dwelling-house of Thomas McVitie, Esq. at Sydney, and stealing therein above the value of £5; and the prisoner, Woodward, for receiving part of the property, knowing it to have been stolen.  At the trial before Mr. Justice Dowling, an objection was taken to the competency of the principal witness, an approver, on the ground of his being a convict attaint, for an offence committed in this colony, and not having received a pardon.  The learned Judge over-ruled the objection, and directed the trial to proceed, leaving it open to the  prisoners' counsel to moot the point at another stage of the proceeding, should it become necessary. - The Jury found the prisoners guilty.  On a subsequent day, they were brought up to receive sentence, when the objection to the approver's testimony was again raised by Mr. Stephen, for Farrell, Mr. Therry, for Dingle, and Mr. Foster, for Woodward.

As, in the arguments on the case of the O'Briens and O'Haras, on Walmsley's pardon, we have already published Mr. Therry's argument on the incompetency of witnesses who are convict attaint, and as Mr. Foster's speech embraces fully the whole question, we shall merely give the substance of that gentleman's address to the Court.

Mr. Foster - In this case I appear on behalf of the prisoner, Woodward; and as he is now called upon to show cause why sentence should not be passed upon him, I, as his Counsel, have to submit that he is entitled to be dismissed from that bar, not only without punishment, but without any imputation on his character, he having been, as I contend with deference, but, at the same time, with the utmost confidence, unjustly convicted.  It has been admitted on all hands, that, by the law of England, the witness Blaxstone,[3 ] was incompetent, inasmuch, as was stated by one of your Honors, such a man is justly considered to be regardless of all laws, human or Divine.  But then, it is said that, in this Colony, such a man must be admitted, of necessity.  Necessity is at all times an odious plea: but, your Honors, I contend that there is no more necessity for admitting such a witness here, than exists in England.  I certainly do feel considerable diffidence in contending against what has been termed a solemn decision of this Court [in Rex v. Gardiner and Yems]; but as I appear here in defence of one whose character and liberty are at stake, I feel bound to press upon the attention of the Court those reasons which appear to me conclusive against the admission of such testimony.  It has been urged that, in nine cases out of ten, there would be a denial of justice, if the evidence of such men were to be rejected.  In point of practice, has it ever been known that a person convicted in England has been held to be incompetent?  In such a case the objection could not be taken; because the only means of disqualifying such a witness would be by the production of the record of his conviction, which in the Colony cannot be obtained:  So far, then, as respects the competency of the great majority of the population, an objection to their competence to give evidence could not be maintained.  Where, then, lies the danger of maintaining the principle for which I contend;- namely, that a capital convict, under an unsatisfied sentence for an offence committed within the Colony, is not a competent witness in a case affecting the lives or liberty of free men?  How do Courts in England deal with such odious pleas!  They do not legislate in this way: they say, if such pleas are properly pleaded before us we are bound to give effect to them; though they do all they can so prevent their being made available, they will not step out of their way, and depart from their province as Judges and become legislators, on the ground of emergency or necessity.  I ask no more of this Court.  What is the supposed necessity for putting a twice-convicted felon in the box, whose evidence, I contend, is no more necessary in this Colony than it would be in England?  Was it ever dreamt of in England, that a Judge, because a prisoner might escape, would violate the principles of the Constitution?  Such a case never could, never did occur, or it would have been heard of before the Parliament of England.  But, supposing a case should occur, in which it should become absolutely necessary to admit the testimony of such a man, is this Court to violate one of the first principles of the Constitution!  No: let the crown, as it has the power to do, make him a competent witness, by giving him a pardon?  How constantly does it happen that the crown does so?  Every thing may be effected, without imposing on this Court the character of legislators.  I contend, however, not only that there is no necessity, but that it is extremely inexpedient to make such a man a competent witness.  Suppose one or more such persons, out of malice, or with a view of being relieved from the punishment to which they were sentenced for their crimes, or of even being detained in Sydney, were to prefer a charge against any individual, and declare themselves ready to substantiate it on oath, if the Court hold that such men are competent witnesses, it is very questionable if a magistrate would not be bound to act upon their information.  The accused party would be put upon his trial, and such scoundrels as I have supposed placed in the box to give testimony against him.  Once admit them to be competent witnesses, and there is no means of shaking their character; the accused cannot, perhaps, contradict them, and he becomes the victim of a nefarious conspiracy.  But supposing he should not be convicted, what means of redress has he?  Can he proceed against such men for a malicious prosecution? can he prosecute them criminally for perjury? what further punishment can be inflicted on such men?  I trust your Honors will see the dreadful state of things to which such a decision might lead.  But I contend that, be the admission of such men to give evidence, ever so expedient or necessary, that it is not in the power of this or any other British Court to admit their testimony without the sanction of the Legislature; and, after giving the subject the most anxious consideration both by day and night, and anticipating all that can, by possibility, be urged on the other side, I come to the conclusion that the power vested in this Court, of declaring what laws shall or shall not be applicable to the Colony, cannot apply to questions affecting the lives of men, or be permitted to alter the common law of England.  That power, I contend, is merely to determine whether laws which have grown up with the growth of society, shall be applicable to an infant colony, and cannot interfere with that common right of protection from personal injury to which Englishmen, in a British Colony, are entitled.  This Court might just as well increase the punishment affixed to any particular crime, merely on the ground that it was prevalent here, as to take upon itself to repeal a part of the common law of England.  Previously to the repeal of the Act allowing benefit of clergy in certain cases, could your Honors, on the mere ground of expediency, disallow the privilege conferred by that Act?  Unquestionably not: neither, I contend, can you alter any of the rules of evidence which are necessary to be adhered to before a party can be convicted of any crime.  However much this Court may have power to deviate from statutes, for the mere internal regulation of the Colony, I contend that it has no power whatever to deviate from the rules of evidence, and allow parties to be convicted upon testimony which the law will not admit, and upon a strict adherence to which rules the security of Englishmen mainly depends.  If there be a necessity for such a departure from one of the fundamental principles of the common law, have we not a local legislature? and why has it not been applied to?  Why should this Court take upon itself the character of a legislative body?  But, your Honors, to show the feeling of the Council upon this subject, I need only to refer to the Act of the 10th Geo. 4, No. 8, with regard to Juries in this Colony, which expressly provides that no person convicted in the Colony, shall be eligible to serve as a Juror; and it is laid down by Blaxstone, that persons liable to be challenged as Jurors, propter delictum, are not competent witnesses, inasmuch as they shall not be suffered to inform that Jury with whom they are unfit to associate.  Although I feel the question to be one of the greatest moment in this Colony, still I am satisfied, if the admission of such persons, as competent witnesses, be necessary, that this Court has not power to legislate on the subject.  The law has clearly incapacitated them; and your Honors set here to declare what the laws are, not to make new ones.  There is also another point, of a technical nature, which applies to the case of the prisoner, Woodward.  He has been indicted and tried on this information as an accessary; and although Peel's Act enables the prosecutor to try a receiver, either for a substantive felony or as an accessary, still, I contend, if he be tried as an accessary, that all the rules with regard to accessaries must be followed.  Now, Woodward was tried as an accessory to Dingle and Farrell; and it was requisite, before he could be convicted, not only that the guilt of the principals should be established, but that he should be proved as an accessary to one or both of them.  In this case, however, the evidence went to shew that Woodward knew nothing whatever, at the time he is stated to have received the notes in question, that the robbery had been committed by Dingle and Farrell; so that, if he be an accessary at all, he is an accessary to the approver Blaxstone.  It is a principle of law, that a party indicted as an accessary to several, may be convicted as an accessary to one, and shall not be liable to be tried over again.  But, in this case, if Woodward had been acquitted as an accessary to Dingle and Farrell, he would still be liable to be indicted as an accessary to Blaxstone; - a fact which, of itself, shows how improperly he has been convicted.  There is also another point: it was clearly shown in evidence, that the notes charged to have been stolen, could not be considered as notes within the meaning of Peel's Act, namely, as so many promissory notes due and unsatisfied to the prosecutors.  But then, it has been stated, that, in another count of the information, they are laid as so many pieces of paper; but they are not laid to be of any value, as, upon reference to all precedents, I find they should have been on the fact of the information.

The learned Judges, after consulting together for some time, directed the prisoners to be remanded.

The prisoners were again brought up on a subsequent day, and on their being placed at the bar,

Dr. Wardell stated, he had been just informed, that, on a former day, a question had been mooted, with respect to the competency of the principal witness in this case, on the ground of his being a convict attaint, for an offence committed in this Colony.  This objection, said the learned Counsel, was taken on the trial, and, as I understood, over-ruled, in consonance with a previous decision of this Court, on an occasion when it was settled, that, although in England, such a person would clearly be incompetent, still, from necessity, considering the circumstances and condition of the Colony, and looking at the character of its population, he must be admitted here.  It is certainly, at times, dangerous to admit the principle, ex necessitate; but I do feel that, on this occasion, as on any other of a like nature, that the danger does not exist; and that, in fact, the principle itself not only holds good, but ought to be upheld in every point of view.  It is nothing more than acting in consonance with prior decisions of this Court; and it appears to me a mere fanciful distinction, to say that he who has been once convicted, shall be a competent witness, but that a second conviction shall render him incompetent.  What is in the objection?  The laws of England say, that he who is convicted of certain offences shall be incompetent as a witness.  But that law refers to a totally different state of society from that in which we live; and what are laws but a set of rules adapted to the circumstances and condition of a people?  The law of England is only in force here, so far as it is applicable to the Colony; and I put it to the Court whether a law which, to a certain extent, would interdict the prosecution of offenders, can be held to be applicable here?  A distinction has been endeavoured to be shown between a penal settlement and this Colony; but, I contend, that is assuming a position which is not proved; for I doubt whether the proportion of free persons to prisoners, is less at a penal settlement than in any other part of the country.  Therefore, after all, it is the same at a penal settlement as here.  Then, how, I ask, does the distinction arrive?  How can it be said, that a necessity exists there, and yet that it does not exist here?  It is a mere use of words without any real soundness of argument.  Either we must consider persons situated as the approver in this case competent witnesses, or we must adopt it as a principle that no crime can be taken cognizance of, unless committed in the presence of free persons, or of persons convicted in England.  We must either set out with one rule or the other; and, if we do create a distinction between one part of the Colony and another, we, to a great extent, put an interdict on the administration of justice.  It would, in fact, be bringing the proceedings of a Court of Justice into ridicule.  If the principle for which I contend, be a departure from the strict law of England, it is a departure bottomed on necessity arising out of the state of things here.  Upon these grounds, therefore, I submit the evidence of the witness in this case was properly admitted.

Mr. Wentworth briefly followed on the same side, and also in reply to the particular objections taken by Mr. Foster in the case of the prisoner, Woodward.

Mr. Stephen, in reply, contended that the clause in the New South Wales Act, empowering the Judges to declare what laws shall, or shall not be applicable to the Colony, applied solely to the statute law.  The question here was, whether the Court had power to dispense with the principle of the common law of the land.  The rules of evidence were founded in common sense and expediency; and he (Mr. Stephen) did not conceive upon what principle the Court could alter a rule of evidence.  If they possessed the power in cases of life and death, they also possessed it in a case involving a right of property.  The rule of law never had been broken down in England for any such reason as that of expediency; neither, he contended, had such evidence ever been admitted in this Colony, because, if it had, the point would, most decidedly, have been mooted.  He admitted that it might be expedient to extend the plea of necessity to penal settlements, where all the parties were similarly situated.  That reason, however, could not exist here; or, if it did, it was the duty of the Legislature to have provided for it; and their not having done so, furnished the strongest argument against the admission of any such testimony.  The question was of the most vital importance: it affected the lives, liberty, and property of the people, and was not hastily to be got rid of.  If the Court possessed a power of dispensing with law, ex necessitate, at all events, he contended, they could not exercise it in this case, to the destruction of every thing dear to public liberty.

Mr. Therry said, after the powerful address of Mr. Foster on a former day - an address which must have carried conviction to the minds of all who heard it - it was unnecessary for him to offer any thing in addition to what had been already stated.  He should, therefore, merely reply to two points urged on the other side, with respect to the necessity for admitting such testimony.  There was either a general or a particular necessity.  If there was a general necessity, why not apply to the local Legislature to pass an Act, breaking down the common law right?  If a particular necessity, a power was vested in the Governor to grant a pardon.


Source: Sydney Gazette, 28 July 1831

Rex v. Farrell, Dingle, and Woodward.

(Continued from our last.)

Mr. Foster said, after the arguments which had been addressed to the Court on the other side, he felt the more confirmed  in his former opinion, that the testimony of this witness had been improperly received; because he was quite satisfied, that the talent and ingenuity of the learned gentlemen opposed to him, would, if their cause were good, have furnished them with much stronger grounds of opposition than any which had been addressed to the Court this day.  Instances, he admitted, might be urged in which a necessity would seem to exist for receiving such testimony; but when the reasons adduced in support of them came to be sifted, he was convinced it would be seen that no such necessity existed here any more than in England.  He was surprised to hear it stated on the other side, that three-fourths of the population would be excluded from giving evidence in a court of justice, if the position for which he contended were upheld; because, in point of practice, it was well known that no objection could be taken to the competency of a witness, without producing the record of his conviction: the objection, therefore, with respect to the expediency, could only relate to parties convicted here.  It had been said that such a case never could occur in the mother country.  He (Mr. F,) said it could; because it was well known that numerous convicts were detained on board the hulks in England; but, if they were, they were also constantly watched by persons who must be witnesses to any crime committed by the convicts under their superintendence.  If a particular case should arise at a penal settlement, and supposing no other witnesses than the convicts could be obtained, had not the crown a power to grant a pardon to one or more of them, and thus restore their competency?  Such an instance, however, was not very likely to occur, because the convicts at penal settlements were superintended by free persons, some of whom must, of necessity, be witnesses to any outrages committed by them.  But suppose it did occur was there not a remedy at hand, without casting upon the Court the necessity of violating the first principles of justice, and laying down a law which would place the character, property, and even life itself, of every man in society at the mercy of wretches like this witness, without the slightest means of redress being open to their intended victims, if they were so fortunate as to escape the snare which might be laid for them?  Therefore, even looking at the case as one of mere expediency instead of one of overwhelming necessity, there was not the shadow of a reason why the Court should depart from the law of England, and hold that a witness like this was competent.  Looking at it as a mere point of expediency, and addressing a Legislative Assembly - for to the Legislature only, be contended, could such arguments be addressed - the reasons against admitting such a class of witnesses would greatly overbalance any reasons which could be adduced in favour of their admission.  But he denied the power of the Court altogether to admit such persons as witnesses; for, although the New South Wales Act did give a power to the Judges of declaring what laws are or are not applicable to the Colony, that power certainly did not extend over the whole administration of justice.  If the Court could put a witness into the box who was held by law to have no regard to an oath, it could also go to the length of convicting a party without any testimony at all.  The Act of Parliament merely applied to laws which have grown up with the growth of the Mother Country, and which may or may not be introduced into the Colony, as its circumstances and condition will admit.  Supposing, however, that the Court had the power which was claimed for them in this case, surely they would not exercise it without an overwhelming necessity, and where was that necessity here?  It was in the power of the local legislature to pass a law which would adapt this rule of evidence to particular circumstances.  It had been urged that they had not power to pass laws repugnant to the law of England; but at any rate they had power to repeal the common law of England, so far as to admit the testimony of such persons as this witness, or least as to derive the benefit of their testimony in certain cases, and do away with the strong objection to the general principal of admitting them at all times.  He was satisfied the Court would see that this was a most momentous question, and that it would not, without the most overwhelming necessity, degrade the character of the Colony, by deciding that such men were competent witnesses.  The learned Counsel also repeated the objections taken by him, on a former day, to the conviction of the prisoner Woodward.

The learned Judges, after consulting together for some time, said they would consider of the point, and, in the mean, time, directed the prisoners to be remanded, and brought up on a future day.



In Banco.

George Farrell, James Dingle, and Thomas Woodward were this day brought up for sentence.

THE CHIEF JUSTICE.[4 ] - Prisoners at the bar. - You are placed there to receive the judgment of the Court.  This was a case of burglary.  The information charge you, George Farrell, and you, James Dingle, as principals in the first and second degree; and you, Thomas Woodward, as an accessory after the fact.  From the notes His Honor Mr. Justice Dowling, before whom you were tried, it appears that your case underwent the most laborious consideration; and, with respect to the conclusion at which the Jury arrived, upon the facts detailed in evidence against you, I have now nothing to offer.  At the trial, it appears that one William Blaxstone was put into the box, as a witness for the prosecution; it was admitted that he was an accomplice - he was objected to on the ground of his being a convict attaint, under an unsatisfied sentence for an offence committed in this Colony - his person was identified, and the record of his conviction, and the judgment upon it, proved.  The presiding Judge, however, overruled the objection, and admitted him to be sworn and examined as a witness; - his evidence went to the Jury, but the question of his admissibility was saved for the future consideration of the Court, and was subsequently argued by your Counsel.  The only question raised in the case is, ``Whether such a persons, proved to be an attainted felon, and his person identified in the witness-box, could be admitted as a competent legal witness, in this Colony? because, out of this Colony, no such question could have been raised.  It is my misfortune to entertain a different opinion on this point from that of my learned brethren on the Bench; and it is with pain, therefore, that I am called upon to express the grounds upon which that opinion rests, as well as the regret which I cannot but feel, that any difference of opinion should prevail upon a question of such vital importance.  The necessity of the case, however, has been thought to require that this question should be raised, and I must not shrink from the performance of a public duty, in stating my opinion upon the point, however I lament that it is at variance with the opinions entertained by my learned coadjutors.  The question, then, and the only question - I repeat, is, ``Whether, in this Colony, there be a local law, or custom having the force of law, which will warrant such a direct departure from the law of the parent state, as to justify the admission of such a witness, in this Colony?"  The rule of law is too clear for argument, that an attainted felon cannot be sworn as a witness; and I will refer to the case of the King against Gully [1st Lench C, L. p. 98], not so much to establish practice of the Courts in the mother country to reject such testimony, as a matter of course, and as showing the tenacity of the Judges in upholding that principle of law which, I apprehend, in the present case, goes to the exclusion of this witness. - ``At the Old Bailey, in July Session 1773, Patrick Murphy and three others were indicted before Mr. Serjeant Glynn, Recorder, present Mr. Justice Willes, for a highway robbery on Kenneth Mackenzie, Esq., Earl of Seaford.  The principal witness was one William Gully, an accomplice; to whose competency to give evidence Mr. Silvester objected, upon the ground of his being a convict under sentence of death; to prove which, he produced the record of his conviction in December Session 1772, and a witness to identify his person.  Mr. Lucas, Counsel for the prosecution, produced the King's Sign Manual, under which the prisoner had been discharged, on his giving security to appear and plead the next general pardon that should come out.  But the Court said, the objection was incontrovertible; for nothing less than a pardon under the great seal can restore the competency of a witness, and it was impossible for the Court judicially to take notice of His Majesty's intention to pardon, which is the extent of what the Sign Manual has signified.  It was determined in the case of the Earl of Warwick, that if a man be convicted of felony that is within clergy, and pray his clergy, and it is allowed, but the burning in the hand is respited, and there is a warrant for his pardon, that he cannot be a witness until it has passed the great seal, and he has produced and pleaded it sub pede sigilli; for as it is for his benefit, it is presumed to be in his custody, and it would be error to grant him the benefit of it until it has been allowed; but letters under the King's Sign Manual cannot be pleaded as a pardon.  The prisoner was accordingly acquitted.""- As I have already observed, I merely refer to this case, to shew the clear principle upon which the Courts in the mother country proceed, and that, had this witness been produced in an English Court, the record of his conviction and judgment upon it proved, and his person identified, that it would be a matter of course to reject him.  Is there, then, in this Colony, any thing which would warrant such a departure from the law of England, as to sanction the admission of a witness like this?  To determine this most delicate and important question, we must look to the spirit of the law of England, and satisfy ourselves whether the rule of law which excludes witnesses, propter delictum, be merely a rule positivi juris, admitting of a total deviation, without injury to the abstract principles of justice? - or, whether it be a rule founded in reason, and only admitting of a deviation, upon grounds of extreme necessity, and not sanctioning a departure any further than such necessity will justify.  That I apprehend to be the sole point of determination in this case.  In order to determine it, we must touch upon the principle, how far circumstances of necessity will at all admit of a departure from an established principle of law, or whether such departure, if it be admitted, should not be limitted [sic] down to cases of such extreme and overwhelming necessity, that a total failure of justice must be the consequence of a strict adherence to it.  The text law on this subject is thus briefly laid down in Blackstone's Commentaries:- ``All witnesses of whatsoever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of a suit.  Infamous persons are such as may be challenged as Jurors, propter delictum, and therefore never shall be admitted to give evidence to inform that Jury, with whom they were too scandalous to associate."  This is the text law, as it is to be found in all writers on the principles of the English law.  The grounds and reasons on which it is founded, are well expressed by that great lawyer,Lord Chief Baron Gilbert, who, in his work on evidence, says - ``Every plain and honest man, affirming the truth of any matter under the sanction of an oath, is entitled to faith and credit; so that, under such attestation, the fact is understood to be fully proved.  But when a man is convicted of falsity and other crimes against the common principles of honesty and humanity, his oath is of no weight, because he hath not the credit of a witness, and there is a greater presumption against him, than there can be in his behalf.  For the presumption is benign and humane to every man produced as a witness, that he will not falsify or prevaricate, in matters of such importance; but where a man is a notorious and public criminal, this presumption fails him: and from thenceforth he is rather to be intended as a man profligate and abandoned, than one under the sentiments and conviction of those principles which teach probity and veracity; and consequently the producing such a man is ineffectual, because the credit of his is overbalanced by the stain of his iniquity."  It were unnecessary to multiply authorities: all the writers, from Bracton and Fleta, down to Blackstoneand the latest authorities of the present day, will be found to lay down the same principle in the same words.  It is coeval with the administration of justice in the English Courts - it is laid in the foundations of the Constitution.  It is declared by Magna Charta, that no free man shall be interrupted in his person or his property, except by the judgment of his peers or by the law of the land.  The same objection which would exclude a tainted Juror from the panel, would exclude a tainted witness from the box.  The principle is not peculiar to the laws of England: it is to be found throughout the written laws of the Romans, and has been incorporated into the municipal code of every civilized state in Europe.  In the Digest, under the title ``De testibus," the following description of persons are excluded from giving testimony by the Julian law, de vi: - ``Qui judicio publico damnatus erit; qui vincuiis custodiave publica erit."  I have made these references to the Roman civil law, not as authorities for the law itself, but to shew the general assent of mankind to the principle upon which it is founded, and to strengthen the conclusion at which I have arrived, that the rule of evidence which excludes infamous witnesses, is a fundamental rule of law, founded in universal principles, and therefore not to be departed from except in cases of extreme necessity.  Wherever the law has obtained the semblance of science, a rule has been adopted with respect to the admission of witnesses; and if, independently of any other argument, we attentively consider the effect which evidence must necessarily have upon the administration of justice; the reliance that is placed on witnesses; that all judicial decisions depend upon their testimony; that there is not a right of which a man may not be deprived by false swearing; that property, reputation, life itself depend upon the evidence a witness may give; that the most grievous, fatal, and irremediable mischief may be introduced into the administration of human affairs; that the very sanctuaries of justice, the safeguards of the state, may be perverted to the ruin and extinction of all they were created to protect, we cannot but feel the full force of the reasons for regulating the admission of evidence, and allow that the law which goes to admit or reject the testimony of witnesses, is necessarily a fundamental law, and is so interwoven with the whole fabric of justice, as never to be departed from, except in cases of over-whelming necessity.  The law of England provides in two ways for the elicitation of truth: it excludes infamous persons as witnesses: and it binds such as it admits, by the solemn sanction of an oath, fortified by the penal consequences of false swearing.  These are the two bulwarks which the law has raised up for the protection of the subject; and I repeat, therefore, that out of this Colony, this question could not have been raised.  The law of England presumes an infamous person to be regardless of an oath; - and what penalties can reach a man under sentence of death?  Both obligations, in a case like this, fall to the ground, and the protections of the law become a nullity.  Such is the law in England.

I anticipate a powerful argument, drawn from the necessity of the case; that this being a penal Colony, ex necessitatete, a different rule must prevail here, and that we must admit testimony which would not admit in England.  Before, however, I proceed to examine the law of necessity, as applied to this case, I will dispose of an argument raised under the provisions of the 9th Geo. 4, c. 84, which is supposed to give the Supreme Court of this Colony a discretion to adopt only so much of the England law as it can apply.  Before the passing of this statute, it was laid down in all the authorities, and confirmed by the ruling of the King, in Council, that wherever a new Colony is settled by British subjects, the laws of the parent country become the laws of the place, so far as they are, or may be made applicable to its circumstances and condition.  The New South Wales Act does not introduce a new principle.  It is recognised in the old common law of the Colonies, and is laid down in Blackstone, vol. 1, 107, that, ``if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately there in force," with the restrictions therein set forth.  The laws of England are declared by the Act for settling the succession to the throne, to be the birth-right of the subject.  Let an Englishman go where he will, and settle a new country, he carries with him all the laws which are applicable to his condition.  What laws do or do not apply, must necessarily be left to the local authorities to determine, always subject to an appeal to the King in Council.  Now, this principle is affirmed in the Act referred to, and is carried no farther.  There is a wide distinction between not applying a particular rule of law, and creating a new and a different rule - between legislating and expounding.  I apprehend, therefore, that the Act of the 9th Geo. 4, is merely declaratory of what the law was before, which directs that so much of the statute and common law shall be, as can be applied.  With respect to the statute law, an important point has thus been gained.  It is laid down by Blackstone, that, when a Colony is settled, the statute law - that is, Acts of Parliament passed subsequently, are no longer applicable, unless it be specially named therein; and many cases have been determined upon a decision of the King in Council on this point, so far back as 1761.  But the9th Geo. 4. c. 84, enacts that the Courts here shall apply all the statutes of England, and also the common law, as the law of the Colony, up to the passing of that Act; and then goes on to direct that, wherever any doubt shall arise as to the applicability to the Colony of any law, the Judges of the Supreme Court shall declare what laws do or do not apply.  Now, it is contended, that under this statute (9th Geo. 4) there is a positive recognition of the power of this Court to apply the law only so far as circumstances will admit; and that it may, therefore, dispense with so much of the law of England as relates to the exclusion of witnesses propte[r] delictum.  That, however, is not the way in which I construe the Act.  Where we can apply the law, we are to apply it: the Act is, as I apprehend, merely declaratory; it only places the Court on the same footing in which it stood previous to that enactment; - namely, of admitting or rejecting - of declaring what laws do or do not apply - between which and creating a new law, I draw a broad line of distinction.  This case, therefore, must depend upon necessity; and, as I have already observed, I am aware that I shall be met by a powerful argument deduced from the character of the Colony and of its population.  This certainly is a penal Colony; and when first settled, by far the greater portion of its inhabitants were transported offenders convicted in England, of what would be considered ``infamous crimes."  Now, it will be at once seen, that such persons, by the law of England, could not be admitted as witnesses; but then there is here a formal mode of getting rid of the rule of evidence which would exclude them in England, in the necessity of producing the record of conviction, and the impossibility of producing it.  But, I apprehend, a wider ground may be taken, from the necessity of the case, which required that by far the greater portion of the inhabitants of the Colony should not be rejected as witnesses.  Here, certainly, was a necessity which warranted a departure from the strict rule of law arising out of the difference between the actual situation of such persons here and in England.  In England, persons so convicted are placed in confinement, or sent into exile, and no longer form members of the community at large; but, in New South Wales, they are liberated on arrival, and are admitted to certain qualified rights - they are no longer in vinculis, but the actors or witnesses in nine cases out of ten that come before a Court of Justice.  To exclude such persons, therefore, would be to shut out of Court nine-tenths of the witnesses to every ordinary transaction which might become the subject of judicial investigation.  These persons, therefore, differing from any other class of persons in England. must be admitted to give evidence here, ex necessitate.  This view of the subject is also borne out by analogy to the law of England itself.  I put the case of a person indicted under that statute of Henry the Seventh for forcible abduction and marrying a woman against her will.  In such a case the general principle would seem to prevail, that a wife is not a competent witness against her husband; but the Court overruled the objection, and, from necessity admitted a departure from the law of England [4 Hawk. P. C. 432.]  So also in Lord Audley's case, which, though objected to as unlawful, still the better opinion appears to be, that in such cases, to uphold the general principle would operate as a denial of justice, as it would be impossible to punish offenders, if the only person who could given evidence in the case were to be excluded.  In these cases, therefore, I perceive an analogy to the principle which induced the Courts here to admit transported felons to give evidence, from necessity.  But necessity is the exception, not the rule - it is to be construed strictissimi juris, and not extended beyond the exigency which requires it.  I put it broadly, then, how far does that case bear out the present?  Is there any analogy whatever between them?  This Colony, though penal as a Colony, is alsopenitentiary as a Colony.  It was considered by the Legislature, that by removing the class of persons who are sent out here from the scene of their crimes and the contagion of their associates, they might be restored to a new course of life and character.  They are not like persons enduring a sentence in England: they are, in fact, set at liberty, depending upon their good conduct, to earn a future character and station in society.  Such a population differs materially from persons enduring sentence in the Mother Country.  Is, then, a person so situated - at large in the Colony - to be regarded in the same light as if the same person should commit fresh crimes of the deepest dye, and receive sentence of death?  What was the situation of the witness in this case?  Originally a transported felon from the mother country, he is not only convicted of a capital offence in this Colony, and receives sentence of death, but also comes into the box a self-convicted accomplice in the very crimes of which he charges the prisoners against whom he is called to give evidence!  Is there not a broad and tangible difference between such a case, and that of a transported population from the mother country?  His accumulated crimes render his testimony valueless - the sanction of an oath of no force - and the punishment of perjury cannot reach him: all the safeguards of the law consequently fail.  Is cumulative crime nothing? is attaint upon attaint nothing? is there no point where the law of the civilized world can come into operation - where the Court must stop?  Is the principle of the English law - the law of all moralized states, entirely inapplicable? has it no locus standi in this Court?  If this witness be competent and his testimony admissible, I cannot discover any tangible, sound distinction between this case and that of a felon brought from the condemned cells, or even the gibbet itself, to give evidence against he free inhabitants of this Colony.  If there be, where is the distinction? - let it be stated, and I will immediately put a case just short of it, and distinguished only by such thin and impalpable shades of difference, so dependant upon the mere opinion of the Judge, that it will be seen the distinction is not founded in any fixed principle, and that the issues of life and death may, and must depend upon what may be termed the discretion, but what, in the spirit of the English law, would be the mere will of the Judge.  Between these extreme cases, and those of the ordinary prisoners transported to the Colony, there is this clear and palpable difference: the former stand doubly and trebly convicted - they are deeper stained with infamy by their conviction, - they are removed from society, by confinement or transportation, - they are not the daily witnesses of transactions in ordinary life, - they are out of the reach of the penal consequences of perjury.  The latter, on the other hand, are no longer in vinculis, - they are restored, sub modo, to society, - they are engaged in the ordinary business of the Colony, - they are upon their good behaviour, and are within the means of punishment, if they be guilty of perjury.  Beyond the claim of necessity and the practice of the Colony to admit these men to be witnesses, it becomes difficult, if not impossible, to draw any tangible line, or fix any definite rule.  If we decide that witnesses like the man, Blaxstone, are to be admitted, we at once rule, as a general principle, that the law of England, propter delictum, under no circumstances, can be applied here, and raise up a most frightful responsibility in the bosom of the Judges; because I do not know where we are to stop, if it be held that no man can be objected to as a witness, even though he have received sentence of death, and the gibbet waited for him.  Upon the principle of necessity, therefore, allowing the necessity in certain cases, I trace a wide and practical difference between admitting the transported population as witnesses, and admitting persons convicted again in this Colony, of capital crimes, and under an unpardoned sentence of death.  Then, with regard to the argument respecting the practice of the Court, which is said to have been to admit such persons as witnesses, I do not think that it can be established.  On the contrary, there is no case within my recollection or research, in which the production of the record of conviction for a capital felony and judgment of death, and consequent attainder, has not excluded the witness, excepting only in cases of crimes committed at our penal settlements, where, by analogy to the rule of necessity, as applied to the inhabitants at large in this Colony, the convicts are admitted ex necessitate, without reference to their secondary convictions.  These are excepted cases - they are, in fact, sui generis - standing alone, and depending u[p]on the peculiar character of the settlements in which they occur.  In the course of my experience, many cases have arisen in which Colonial pardons have been given to restore competency.  In the case of the King against Dwyer and others, tried on the 30th of March 1825, a witness named Edward Power was put into the box, and his competency objected to on the ground of his being a convict attaint; - the record of his conviction was proved, and his person identified.  In answer to the objection, the Counsel for the Crown produced the Governor's pardon being conditional, did not restore his competency as a witness, and the prosecution was abandoned.  The case was tried before me, and I do not cite it as an authority, but to show that the argument drawn from the practice of the Court cannot be sustained.  But there was another case that came before the Court almost at the same time with the one now under consideration, I allude to the case of the King against Walmsley - a case perfectly parrallell [sic] in principle to this Walmsley was a convict attaint and an accomplice; - an objection was taken to his competency to give evidence, and a pardon was put into his hand.  Now, where was the necessity for a pardon in that case, which did not exist in this?  Why was Walmsley pardoned to re-exist in this?  Why was Walmsley pardoned to restore his competency, and Blaxstone not?  Where is the keeping between the two cases in principle? where in practice?  There was a way of restoring this man's competency to give testimony - he might have been pardoned.  By the law of England, a pardon restores the competency of a witness.  I am not now called upon to go into the reason of that law, though, doubtless, if it were investigated, the reason would be found sufficient.  This witness might have been pardoned, and there was therefore no such overwhelming necessity cast upon the Court, as should induce the Court to depart from the law of the land, and hold that a man civiliter mortuus - a thrice convicted felon, twice by the laws of his country, and once by himself - is a competent witness.  I would also observe, that this colony, by an influx of free inhabitants and the gradual emancipation of a large proportion of the original prison population, has considerably changed its character since its first formation; and, although this circumstance is not a reason why we should hold shifting and fluctuating doctrines, still it is a prudent and wise argument why we should not extend its penal character, but assimilate it as far as possible to the mother country; and unless it can be shown that the invariable practice has been to admit such testimony, that now is not the time to extend the principle to cases, to which it has not been extended before.  I do not feel myself at liberty to travel out of the point reserved, namely, the competency of the witness to give evidence, by entering into the peculiar circumstances of this case - the nature of the crime, or the credibility of the testimony given by the witness.  I object to his competency, upon what I apprehend to be principles too strong for this to get over.  It is not legitimate to look at the particular circumstances of this or of any other case: what is the law of evidence in this case to-day, must be that of any other case to-morrow.  I am, therefore, compelled to come to the conclusion, that the only legitimate way of restoring this man's competency, was by giving him a pardon, as had been done in the case of Walmsley, and not cast upon the Court the necessity of departing from what I consider a fundamental law of the land, and not a mere canon of evidence, by ruling that all men are competent witnesses, without reference the infamy of their lives, or however steeped in crime they may come forth.  We do not sit here to legislate, but to administer the law at we find it.  If the law require amendment or adaptation, it must be done by the makers of the laws, and not by the expounders of the laws.  If a necessity should be supposed to exist here, for departing from a principle which has obtained the universal assent of civilized mankind, the Legislature is the only proper power to remedy the law and adapt it to the exigencies of the Colony.  But, sitting here as a Judge, to administer the law, not as a legislator to declare what shall be law, I feel bound, however I regret to differ from my learned colleagues on the Bench, to state the conclusion at which I have arrived, namely, that the testimony of this man was improperly received, and that I should be departing most unwarrantably from the law of England, if I held him to be a competent witness in this case.  I am therefore of opinion that the motion of Counsel should be granted.

(To be continued.)


Source: Sydney Gazette, 30 July 1831


In Banco.

Rex v. Farrell, Dingle, and Woodard.

(Continued from our last.)

MR. JUSTICE DOWLING. - It is the misfortune of His Honor Mr. Justice Stephen and myself to differ in opinion with His Honor the Chief Justice on this occasion.  Our regret is the more poignant, considering the serious consequences likely to follow our judgment, as it respects the fate of the prisoners at the bar.  Having, however, made up our minds as to the course of duty, which we fell ourselves called upon to pursue, after many days, - nay nights, of painful deliberation, we cannot shrink from the discharge of it, disagreeable as it certainly is to us not to defer to the opinion of the able and learned person who occupies the chief seat in this Court.  Being thus formed, and acting under the solemn obligation cast upon us by our office, I think it would ill becomes us to abstain from promulgating our opinion, under a conscientious conviction of its rectitude, notwithstanding its opposition to the view taken of the case by our enlightened colleague.  If a silent dissent upon such a subject could, with propriety, be observed, we would gladly have availed ourselves of that course, but considering the streneous [sic] and public manner in which this matter was discussed, we feel ourselves called upon openly to state the grounds of our decision.  As it has fallen to my lot to minute down some of the reasons upon which our opinion is formed, I shall, with the concurrence of my venerable and learned brother, and indeed at his request, take precedence of him in expressing our united sentiments; he, however, reserving to himself the right of adding afterwards, what he may think I have omitted in further illustration of the subject.

This case was argued on the 28th June, 1831, with great zeal, ability, and learning.  No man called upon to administer the anxious and sacred duties of a Judge, can be indifferent to the advantages resulting from the assistance of an intelligent and independent bar, in the discussion of all matters of doubt or difficulty presented to his consideration and judgement.  These advantages the Court has had on the present occasion, and has fully availed itself of them, in applying its mind to the resolution it is called upon to form on the several points submitted for determination.

The material question arising in the case is, whether a convict attainted of a capital felony, committed within the territory of New South Wales, but whose sentence has been commuted by the Governor to transportation for fourteen years to a penal settlement, can, before the expiration of his commuted punishment be received as a competent witness in a court of justice within this Colony, without a pardon of the offence of which he has been attainted.

Before I state the grounds of the opinion which I entertain upon this important question, it may be convenient, though perhaps unnecesssary [sic], to bring under review - first, the peculiar circumstances of the case, in which the question arises.

First, it is matter of history, that until within the last ten years, New South Wales has, with few exceptions, been exclusively dedicated by the Crown, to the reception and detention as a place of punishment, and reforming of offenders against the laws of the empire.  To all intents and purposes it has been treated and regarded as an extensive gaol, and most, if not all, the laws and regulations for its government have been founded on that footing.  In no sense of the word has it been, nor can it have been considered as a free Settlement and Colony of Englishmen.  In this respect it has been in the lowest grade in which a society of English subjects could be placed to form a community, and differed from every other Colony under the dominion of the British Crown.  Admitting, on the authority of Salkeld, 411 and 666, and 2 P. Williams, 75 - ``That if an uninhabited country be discovered and planted by Englishmen, all the laws then in being, which are the birth-right of every subject, are immediately there in force."  Still I apprehend this doctrine could not be reasonably construed to extend to a community of English subjects, not voluntarily settling as free emigrants in a newly discovered country, but brought thither as a place of punishment and exile, in consequence of their having violated those very laws under which they had been previously protected as a matter of birth-right.  In such a state of society, I apprehend the general municipal laws of England could not have been administered, and that no laws could be applied to them but such as are equally applicable to all persons in the like degraded situation, whether confined within the walls of a gaol, or allowed to move within certain prescribed bounds under the restraints of penal discipline, namely, those that had the effect of protecting them against unlawful violence, or unnecessary coercion.

Any other laws or regulations applicable to them must have reference to their peculiar condition, and to the necessities of the place in which they were inhabiting, arising from the gradual emancipation of individuals from penal restraint.  It is very true that within the last ten years, the territory of New South Wales has been thrown open for, and encouragement given to, the surplus free population of the mother country, to emigrate to our shores; and it is no less true (and it is a subject of the warmest gratulation) that the general character of this settlement has been progressively ameliorated by the decided reformation of a large proportion of its original inhabitants, but more especially in the almost universal correctness and morality of their progeny; but still New South Wales retains its prominent character as a place of penal transportation.  A vast majority of its inhabitants have been or are still subjected to those legal disabilities consequent upon the crimes committed in the mother country.  Notwithstanding the auspicious aspect which the settlement has assumed during the period to which I have alluded, it is not to be denied that it has not yet attained that rank which places it on an equal footing in political and municipal government with any other Colony of the British Crown.  It continues the receptacle of those criminals who have subjected themselves to the just severities of the law in their native land, hundred of whom are annually transported to our shores.  As a general proposition, therefore, it is not true that the laws of England are, or can be applied universally in this country, laying aside the infancy of the settlement, and adverting solely to the peculiarly anomalous character of its society.  If any doubt could be entertained of this, it must be removed at once by a reference to the New South Wales Act, 9 . c. 83, almost every provision of which has in view the peculiarity of the Colony since the foundation.  Even the 24th section, relied upon so much in argument, demonstrates this; for although it enacts ``that all laws and statutes" (which I take to comprehend the common as well as the statute laws) ``in force within the realm of England at the time of the passing of this Act [not being inconsistent herewith, or with any charters or letters patent or order in council which may be issued in pursuance hereof] sholl [sic] be applied in the administration of justice in the Courts of New South Wales," yet it is with tnis [sic] limitation, ``so far as the same can be applied within the Colony:" which is a clear recognition of the isolated character of the Colony when contrasted with any other British settlement.  It is very true that it is enacted by the same clause, that as often as any case shall arise as to the application of any such laws in the Colony, the Governor, with the advice of the Legislative Council, shall by ordinances declare whether such laws shall be deemed to extend to the Colony &c., but still it is the duty, in the mean time and before such ordinances are passed, of the Supreme Court, as often as any such doubts shall arise upon the trial of any information or action, to adjudge and decide as to the application of any such laws in the Colony.  This however clearly applies to the common law as well as the statute laws of England, as may be collected from the very first paragraph of the clause which speaks of ``all laws and statutes" in force within the realm of England.  It therefore gives us in express terms, the power, nay it imposes on us the duty of determining the applicability of any of the laws of England, whether common or statutable to this Colony.

In endeavouring to apply even some of the fundamental principles of the common law of England, the Judges of this Court have constantly found themselves obstructed by local difficulties and peculiarities, arising from the character of the inhabitants and the relations produced in the intercourse of a society so compounded.  They have been compelled to lay down principles, and adopt resolutions, which would perhaps startle a lawyer in Westminster Hall, but which they have been driven to resort to in order to meet the exigences [sic] of society, and adopt the principles of British law as far as they were practicable, consistently with the heterogeneous state of the community.  A very anxious and responsible duty has thus been cast upon the Judges of this Court.  They could have been well pleased, if it were practicable by legislative authority, to declare beforehand what rules and maxims of the common law of England were and what were not applicable to the territory of New South Wales: but as such a legislative declaration might be productive of the greatest inconvenience the Legislature has been pleased to leave a wide discretion to the Judges, to mould the principles and rules of the common law, to the actual state of society, to which the Jurisdiction of this Court extends.  The utmost that the Legislature could have done would have been to provide as many rules and regulations as would embrace the greater number of cases likely to occur, and then trust after all, to the authority of the Judges, acting upon the spirit of the law, for the settlement of such as could not be decided according to its letter.  In this country an infinite number of questions have arisen, and are still likely to arise from the practical application of the general principles of English law, to the varied and incongruous transactions of human life.  A very responsible power certainly, is vested in the Judges in this respect, but the Legislature having reposed it in us, I confidently trust that those who are called upon to exercise it, will do so, soundly, considerably, and with a conscientious desire, honestly and uprightly to acquit themselves of the sacred trust thus confided.  I have made these general observations as to the peculiarity of this Colony, for the purpose of pointing out how evidently it differs not only from the transcendent condition of the parent state, but from every other British settlement in parts beyond seas, and to note how difficult, nay, impracticable, it is to act upon every maxim of British law with the same strictness, consistency, and inviolability that is observable in the mother country and its other dependencies.  The canons of evidence, as part of the common law of England, for the like reasons to which I have alluded, are no less subject to modifications and departures in the practical administration of justice in our Courts than are the principles and maxims of the general unwritten laws of the Empire.  This branch of the common law is founded rather upon the local usages and Rules of Practice of the Courts, and the dicta of Judges delivered from time to time in the practical administration of justice, than upon general settled customs and usages which have become fixed in the minds and consciences of all men as the result of a right sense and perception of natural justice, which is the foundation of what is emphatically called the common law.  These Rules of Practice have even in the Courts of the mother country, varied from time to time according to circumstances, and are perpetually subject to changes, like all judicial resolutions, according to exigencies not originally foreseen.  In forming such resolutions, the Judges cannot reasonably be said to assume to themselves the power of legislation in the latitude which was urged in the course of the argument in this case.  The Rules of Evidence which the Judges are compelled to resort to in the practical execution of the laws, are only the means by which the laws themselves are carried into effect.  In one sense, they may be said to legislate, for not only every Rule which they law down, but every judgment or decision of the Court may be said to be a laws as far as it goes; that is, a precedent for the decision and illustration of every subsequent analagous [sic] case that may be brought under consideration.  In no other sense does a court of justice legislate or depart from its province in this respect; and I persuade myself that the Judges of this Court will never presume to arrogate to themselves the constitutional province of the Legislature.  For my own part I utterly disclaim and repudiate such an idea.  I confine myself, and hope ever shall do, to the bounds prescribed by the wisdom of the Legislature for the guidance and government of my conduct in the administration of those committed to this Court for execution.  The power of prescribing Rules of Practice is incident to every Court of Record.  This power is expressly given to this Court by the Statute 9. Geo. 4. c. 83. s. 16. which authorizes the Judges to make rules and regulations, touching the practice of the Court, and all other matters and things whatsoever for the conduct of business in the Court as may be adapted to the circumstances and conditions of the Colony.  But independent of this power, which contemplates written rules and orders, I apprehend that the Court, as a consequence of their jurisdiction as a Supreme Court of Record, would of necessity, have the power of determining what rules of evidence adopted in the Courts of the Mother Country are applicable in the practical administration of justice, in a community so dissimilar in its elements from the free and untainted country, from which this settlement derives its origin.  Having thus premised these few observations as to the peculiar character of this country, I shall now shortly advert to the circumstances of the case in which we are called upon, to determine the principal question submitted to our decision.

In the month of September 1828, a deep laid scheme was formed by more than one person to plunder the Bank of Australia.  The plan was executed with a degree of cunning, contrivance, and perseverance, scarcely paralelled [sic] in the history of human villainy.  After entering a main sewer the depredators burrowed under ground, and made their way through walls many feet in thickness, and after working several days, at length succeeded in breaking into the coffers of the Bank, from which they carried off upwards of £12,000 in notes and cash.  The notes found their way into the hands of many suspected persons, and the Bank from the difficulty of affixing guilt upon the holders paid many of them to a large amount, although conscious that they were stolen.  The parties who were the actors in the felony contrived to keep their secret, after every effort by reward and vigilance had been used to bring them to justice, until a disclosure was made a very short time since by a man named William Blackstone, a prisoner of the crown, who since the Bank robbery had been convicted in this Court, and had judgment of death recorded against him for a capital felony, but which judgment had been commuted by His Excellency the Governor to fourteen years transportation to the penal settlement of Norfolk Island.  This man having been brought back to Sydney as a witness in some transaction arising in the Island, (being suspected of having participated in the Bank robbery) at first refused to make any communication on the subject, but at length confessed that he and other persons actually committed the robbery, and amongst other individuals whom he implicated were the prisoners Farrell and Dingle as principals, and the other prisoner Woodward as a receiver of part of the stolen property to the amount of £1000.  Upon his information these persons were apprehended, and on their trial Blackstone was produced as a witness, and in several material parts of his evidence he was confirmed by other testimony of unimpeachable character, and the Jury, after a very long and elaborate trial, which occupied ten hours, found all the prisoners - Guilty.

Under these circumstances the question arises, whether this man could be received as a competent witness in the Courts of this country without a pardon of his Colonial offences.  The objection to his competency is, that judgement of death having been recorded against him he is civiliter mortuus, and and [sic] though possessing natural vitality, he is to be regarded in the eye of the law, as actually dead.  This it was urged was the inflexible principle of the common law of England, and invariably acted upon with respect to such persons in the administration of justice in the mother country.  The authorities cited were 3 Blac. Coms 370, where it is said, ``Infamous persons are such as may be challenged as Jurors propter delictum; and therefore never shall be admitted to give evidence to inform that Jury with whom they were too scandalous to associate."  This position clearly applies to the disability of an infamous person from sitting on a Jury, not to his competency as a witness.  From a Text Book of authority on the law of evidence this passage was cited.  ``If two or more persons are accomplices, one who is not indicted may be a witness against the others.  So he may even after conviction, if judgment has not passed against him; for it is not the conviction, but the judgment that creates the disability."  Nay, according to Hawkins P. C. B. 2. c. 46. s. 108. it was urged, that it had been even doubted how far the King's pardon would remove the disability of such a witness.  Again in Gully's case, 1 Leach crown cases 94. a witness who had been convicted of felony was rejected though he produced letters under the King's sign manual upon which a pardon would have passed the Great Seal.

There is no doubt that these maxims are in full force and virtue in the Courts of the mother country, and there is as little doubt that all the Judges would in England abide by them as inflexible.  But the question is, whether we, the Judges of the Supreme Court of New South Wales, sitting under the authority of an Act of Parliament creating a peculiar Court for the administration of justice in a penal Colony 16,000 miles distant from the parent state, can rigidly adhere, and act upon maxims which have grown up in the long course of time, and perhaps have become inveterate in an old and settled country, so remotely different from the country in which we are living.  By the express directions of Parliament we are required not to create a new law, but to adjudge and decide whether this even if it be a fundamental part of the law of England) is applicable to the state and condition of this Colony.  God forbid! that the Judges of this Court should ever manifest a disposition to evade or frustrate any merciful spirit in any part of the criminal code of England - a code which it may be admitted is sufficiently terrific in its denunciations against evil doers.  We should approach with dismay the attempt to violate any immutable principle of justice, felt in the heart, and approved by the reason of all mankind; but is the admission of such a man as a witness repugnant to any thing but a dry canon of evidence, which peculiarly obtains validity in a country so diametrically opposite in its character, its inhabitants, its institutions, to that in which we are living?  It is not disputed, that but for the fact of judgment of death being recorded against this man, though pronounced guilty by a Jury of his country, he would have been a competent witness.  The objection, therefore, resolves itself into one more of technicality than substance.  The omnipotence of a pardon under the great seal might restore the man to testimonial vitality; but he would still remain the same infamous and worthless villain: his moral turpitude and baseness, his incredibility as an unconfirmed accomplice would not be thereby purged.  Circumstanced therefore as we are, surrounded by a population unhappily too prone, in many instances, from early predilections, to the commission of enormous crimes, and armed as we are with such extensive powers by the wisdom of Parliament, we are imperatively called upon, however repugnant the duty may be to men nurtured in a devout reverence for every principle of British law, to adapt the rules of evidence to the practical administration of justice in this settlement.  I feel with full force, and have a just sense of, the danger of admitting the doctrine of expediency and necessity in the administration of the laws; but the welfare of society, the due administration of justice, which is the great bond of the social compact, require in many cases, that this doctrine should be resorted to.  Why is it, that even in the mother country, informers and accomplices are admitted as competent witnesses in a court of justice?  Not that this class of infamous persons are favourites of the law, but that the safety of the State, and the welfare of civilized society require that they should be used as instruments to bring enormous crimes to light.  Such persons are received as witnesses ex necessitate, and because without them the greatest offences against society must go unpunished.  The Judges of the mother country have confessedly gone to this extent (following, indeed, the principle the of the Roman law itself), and no reasonable man, having in view the office and utility of a court of justice, can impugn the soundness of the application of the doctrine of expediency and necessity to this extent.  We are now called upon to go a step farther, and combat with a canon of evidence which is in its spirit, technical, and goes to disqualify a man, from being a witness, not because he may have been convicted by a jury of his country, of crimes the most abhorent from human nature, but because he has gone through the form of having judgment of death recorded against him, and has had his life spared through the mercy of the Crown, on condition of being transported to a penal settlement for 14 years, the term of transportation not being yet expired.  I own that regarding it as a naked proposition, my mind is not free from difficulty and anxiety (imbued as it is with the prejudices of an education acquired in Westminster Hall), when called upon to get over even the slightest matter of form where the life of a man is concerned; but constituted as this Court is, - called upon as the Judges to administer justice in a country so peculiarly circumstanced, we must approach the duty thus cast upon us, and discharge it firmly according to the dictates of our consciences, and a just consideration of the call upon us for the conservation of the lives and property of our fellow-subjects.

In determining this question, my mind has been relieved by the consideration of the long, though perhaps silent usage which has obtained in the Courts in this country upon the subject, and of the seriously inconvenient consequences likely to flow from giving effect to such an objection.  If the maxim upon which the objection is founded, be inflexible, and cannot be allowed to yield to expediency or necessity under any circumstances, it would go to disqualify every felon convict transported to this country, whose sentence happened to be unexpired - that is, about three-fourths of the population would be excluded from the witness box, nay put out of the protection of the law, against personal violence and oppression.  It is admitted, that in practice, such persons are not disqualified, and are every day admitted in the ordinary course of justice, nay, even in cases of life and death.  Why are they admitted?  Only because of the difficulty and delay in procuring from the mother country, certified copies of the record of conviction and judgment; this, however, does not get rid of the principle of the objection; it is only inconvenience, expediency, and necessity, thatstifle it, for if the Court could bring itself to tolerate the delay of procuring certified copies of the record of conviction and judgment of every person of this class, the Court would be fettered and hampered by the English canon of evidence in such cases.  But after all, is it not a simulation of the understanding, to resort to such a reason for admitting the testimony of such persons?  Is it not notorious that these persons have been transported as felon convicts, as appears by the Indents under which they are brought out, treated as such, and submitting as such, in consequence of the record of their conviction and judgment being to be found upon the files of the Court in which they have been tried.  The recent case of Hogan v. Hely, was decided on this principle, the Court having held that the Indent being equivalent to a warrant of execution, was conclusive, presumptive evidence, until the contrary was proved, of a valid, subsisting conviction remaining of record in the Courts of the mother country.  Admitting, however, that it were practicable to transmit with every transported felon from the United Kingdom, a certified copy of the record of his or her conviction and judgement, still, I apprehend we should, from necessity, be found in the practical administration of justice, and in the exercise of the powers delegated to us, to resort to a canon of evidence adapted to our own community, and disregard an objection which would be fatal to the competency of such witnesses in the Courts of the mother country.  Since the foundation of the Colony, now 43 years, such persons have been universally admitted as witnesses, notwithstanding the notoriety of their degraded state, and despite the practicablility, however inconvenient it might be, of procuring from home official documents to prove their incompetency; but then it is said, that there is a distinction between a person convicted of felony in the Colony, and transported from Great Britain to New South Wales; for, as it was urged, a penal settlement is as to this settlement, what this settlement is to the mother country.  I confess, my mind has not been able to understand or grapple with such a distinction.  There may be more facility in gaining access to the record of conviction and judgment of a felon in the Colony, than in procuring it from England, but is the tenacity of an objection which affects the life of man, to be measured by time and place?  If the objection be good in the case of a felon convicted in New South Wales, it must be equally good in the case of a convicted felon transported hither from the mother country.  The only difference is, that there would be more difficulty and delay in obtaining the necessary proofs to sustain the objection in the latter, than in the former case.  According to the argument, this man stands precisely in the same situation with a capital convict transported to New South Wales from England, under a commutation of his sentence of death; if so, why should this one be rejected and the other admitted as a competent witness?  The only reason that can be assigned is, that which I have already pointed out, - merely the delay necessary to procure the copy of the record and judgment against the English convict.

It has been broadly admitted, that with respect to offences committed in the penal dependencies of this Colony, the numerous felons transported thither, though convicted in the Colony, are competent witnesses, because of the necessity of receiving their testimony.  It appears to me that this concession goes the whole length of the doctrine upon which the Court is constrained to overrule the objection.  Can the difference of place vary a principle, which if, in the abstract, it is sound, legal, and inflexible, must be so every where?  If such a man as this be a competent witness to give evidence of a transaction arising at a penal settlement, I cannot comprehend why he should not be equally competent in a case occurring in Sydney.  Are the lives and personal safety of the unhappy men who may be transported to these penal settlements less the objects of care and solicitude, than the lives and personal safety of the rest of God's creatures placed under the dominion of British laws?  The life of man is above all price; and surely if the objection be good, and cannot be got over where the life of a freeman is in jeopardy, it must be equally good in the case of a felon enduring a secondary sentence of transportation, - unless, indeed, it be contended that the latter is wholly out of the protection of the law against personal injury, and that arbitrary violence may do as it lists with his life and limbs, - a doctrine which no man, whose mind is imbued with the commonest notions of humanity, can tolerate.  It is assumed that all the inhabitants of the penal settlements are transported felons from this part of the Colony - that they stand on an equal footing with each other, and consequently are competent witnesses to prove all crimes there committed.  The fact upon which this important concession is made, is, I believe, not true to the extent alleged.  It is notorious that there are many unfortunate men in the settlenent [sic] of Norfolk Island, who who [sic] have been transported thither direct from England without touching our shores; and it is no less true, that if His Majesty, by the advice of his Privy Council, thinks proper, he is empowered by law to direct any number of felon convicts to be transported direct to that or any other penal settlement.  But without alluding to this class of persons, it is within the knowledge of every body that there is a considerable civil and military establishment there, consisting of a large number of free subjects of the Crown.  Cases have frequently arisen, in the different penal settlements in which it has been found necessary to resort to the testimony of persons under what are called secondary sentences, in order to the due investigation of justice.  They have been received without objection: and, as far as I know of the history of the Colony, the practice of receiving such witnesses has become inveterate on the principle of necessity.  Without appealling to the experience of my learned brethren, I can venture to say, from my own personal knowledge, during the very laborious share of judicial business that has fallen to my lot during the three years that I have been here, that I have tried at least ten capital cases arising in the different penal settlements, where most of the witnesses, if not all, were transports under unexpired colonial sentences for felony.  In these cases it never occurred to any body even to suggest that such persons were incompetent.  The only case in which I personally know the objection to have been raised was in that of Rex v. Gardener and Yems, tried before His Honor the Chief Justice.  There the offence was committed at Port Macquarie, and all the witnesses were capital felons who had been transported to that settlement, and whose commuted sentences were unexpired.  The objection was afterwards fully debated and considered, and the whole Court came to the unanimous resolution that their testimony was admissible upon grounds of long usage and necessity.  The propriety of the decision has not been impugned.  On the contrary, it has been conceded that that case was well decided for the reasons there given; but the distinction which I have already noticed, has been urged, namely, that as that was a case arising at a penal settlement, it cannot govern a case arising at Sydney, more especially on the trial of persons who happen to have become free by the expiration of their original terms of transportation from their native land.  Now, whether the persons under trial be free or bondsmen, I apprehend that circumstance cannot affect the principle on which the person tendered as a witness is incompetent.  If it be absolutely necessary to resort to impure and infamous witnesses in any case in order to bring to light the deepest crimes committed in secrecy, and under the cover of an artful and daring combination, it can make no difference whether the persons accused be free men or still labouring under the disabilities of a subsisting state of penal discipline.  The place in which the offence, or the person by whom it is committed, does not affect the question now under consideration, one way or the other, so long as both are within the jurisdiction of this Court.  But even if there were precedents wanting for the admission of such witnesses as these on the trial of free persons, there is a memorable one of very recent date which must be fresh in the recollection of every body.  On the 9th of October, 1829, a gentleman of military rank, who had been Commandant at Norfolk Island, was tried in this Court for alleged wilful murder in that settlement.  On that occasion, no less than three transports to that Island for capital felonies committed in this part of the Colony, whose commuted sentences were unexpired, were examined as witnesses against the prisoner.  The prisoner was ably defended by one of the most intelligent practitioners in this Court, but it never occurred to his quick apprehension to object to the competency of such witnesses.  They were received as a matter of course, without any doubt or difficulty.  At that time, certainly, the case of Rex v. Gardener andYems had been decided; the judgment of the Court there having been delivered on the 6th of April previously, and probably the reason why the objection was not again taken, was because that decision was considered conclusive, even in a case where the party accused happened to be a free subject of the crown.  This I take to be a cogent precedent, if individual cases were wanting, to govern our decision.  On Monday, the 11th July instant, an unhappy man named Macmanus was executed for cutting and maiming a fellow prisoner at Morton Bay.  The material witnesses were capital convicts labouring under secondary sentences.  There was executed on Monday, the 18th instant, another unhappy man named Welch, for a like offence, committed at Norfolk Island, and in his case all the witnesses were fellow prisoners, suffering under commuted sentences of transportation for capital felonies in this Colony.  From my own judicial knowledge, I could name, if it were necessary, several other cases of the like kind.

To be concluded in our next.)


Source: Sydney Gazette, 2 August 1831


In Banco.

Rex v. Farrell, Dingle, and Woodward.

(Concluded from our last.)

But then it was suggested that there was a course open for making this man a competent witness, namely, that of obtaining for him the Governor's pardon, if his testimony was essential to the ends of justice, and consequently, that it would be carrying the doctrine of necessity father than this case required.  For more abundant caution such a course might certainly have been adopted; but I apprehend it was unnecessary.  If the Governor's pardon was necessary in his case, it must be equally necessary in all other cases in which the testimony of such a person is required for the purposes of justice.  The penal settlements are the receptacles for the worst criminals - men who have been over and over again convicted of offences against the laws of the land, and are in general utterly irreclaimable.  Many atrocious crimes are committed amongst them.  Will it be contended that such individuals of this class of persons who happen to be present at, or knew something of, the murder of one of their fellow-prisoners, committed perhaps by a free man, and consequently become material and necessary witnesses, for the defence as well as for the crown, and without whose testimony justice cannot be duly administered, must receive a pardon of their Colonial offences in order to render them competent, and this without any meritorious reason on their part?  Must the worst of men be again turned loose upon that society, of which their crimes have rendered them unworthy members, merely because their testimony happens to become necessary in the due administration of justice?  It is a melancholy feature in the history of such settlements, that the degraded inhabitants often hatch or get up crimes solely for the purpose of a short trip to Sydney, and be thus relieved for a time from the dismal irksomeness of penal discipline.  Cases of this description have been frequently brought before this Court.  From my own judicial knowledge I can certify that when in the box as witnesses some of those men have unsaid that which they were known to have sworn to before the local authorities, and upon the supposed credibility of which they have been transmitted to Sydney at an enormous expense to the crown.  If it were essential to their competency, that they should be pardoned (and I see no reason why they should not, if the canon of evidence relied upon, be inflexible) where would there be an end of the frauds committed on the mercy of the crown?  Such a doctrine would be holding out a tempting bounty to these desperate men to incite to the commission of the most flagrant crimes, in order thereby to obtain a pardon as a price for their becoming witnesses.  But supposing it were practicable, and the interests of justice required that such an extraordinary course of proceeding should be adopted, what guarantry [sic] would there be, that men so long indifferent to the dictates of honesty, morality, and the commonest ties of society, would become the witnesses of truth, or regard the solemn sanctity of an oath?  But the mischief of this doctrine would not be confined in its effects to penal settlements.  There are hundreds of crown prisoners annually convicted of felonies before this Court, - the Quarter Sessions, and before the summary jurisdiction of the Colony, who are set to work in irons on the public roads.  These men often become material and necessary witnesses, whilst suffering their secondary punishments, and therefore, if the canon of evidence alluded to be rigidly acted upon in this Colony, as part of the common law of England, these persons must all be pardoned to restore their competency, notwithstanding their personal unworthiness and moral turpitude.  The ordinary stream of justice must be stopped before every tribunal in the Colony, innumerable crimes must go unpunished, and desperate men may set the laws of the country at defiance, unless the competency of such witnesses be restored by pardon.  If a pardon to such men could purge them of their moral baseness, restore them to a just sense of their duty as good citizens, and render them worthy members of society, there would be a meritorious consideration for such an interposition of the Royal clemency; but when it is obvious that they would still retain the same habits of worthless depravity, and the like disregard as before, of the restraints of civilized life, the reason of granting such a boon could be founded only upon deference to a mere matter of form.  It may be that in other instances, pardons have been given to restore competency, but this may have been from prudential reasons, - from merit in the persons receiving the pardon, or for other causes to which I am at present a stranger.  In the case of Rex v. Dwyer, tried before His Honor the Chief Justice in 1824, and mainly relied upon in argument, the principal reason why the convict Power was rejected, was that the pardon granted him by the Crown being conditional, and the condition not performed, it was considered insufficient to restore competency.  The point now under consideration, though suggested, was not the subject of solemn deliberation and judgment.  At that time the Supreme Court had not its present numerical strength, at least, and though I will yield to no man in unfeigned admiration of the distinguished talents, great learning, and perspicacious mind of my honored and venerated colleague next me, yet I persuade myself, that if that case had been presented to his consideration, in the way in which this case has been submitted to us, he would, at least, have pronounced a solemn judgment upon the point, in order that if any doubt existed of the applicability of this canon of evidence relied upon to this Colony, the legislature might have interposed to remove it, and have spared us the painful duty, after the lapse of seven years, of differing with him, upon a point of such vital importance to the administration of justice in this Colony.  I grant that there may be extreme cases to which it would be too shocking to carry the doctrine on which our decision must be founded.  For instance, in the case of a convict actually doomed to death, and taken to the place of execution; it could not be tolerated that such a man might be brought from the foot of the gibbet, and placed in the witness box to give evidence.  This man's recorded judgement of death has been commuted to transportation for a limited time.  He stands precisely on the same footing with a convict felon, transported from England to New South Wales.  Against him the door of hope is not closed.  He has still some motives for living, and he may yet be restored to society, purged by repentance of a previously mis-spent life.

It was asked in the course of argument why then it was thought necessary to grant a pardon toWalmsley, a witness on the recent trials of the last session, in order to restore his competency?  That, certainly, was an extreme case, and falling under the class to which I have alluded.  He had been convicted of two capital felonies, sentence of death had been passed upon him, the warrant for his execution signed, and a day fixed for carrying the dreadful penalty of the law into effect.  On the very morning when it was expected he should be launched into eternity, he was reprieved by His Excellency the Governor, in consequence of some disclosures which he had made respecting a long catalogue of atrocious crimes, in which he, and other person were concerned.  The extremity of this man's case may have suggested to the Executive Authority the seemliness and propriety of granting him a pardon, in order to cure any objection to him as witness, in consequence of the late perilous state in which he had been placed.  This, it may be said, is a very arbitrary distinction, depending entirely upon the discretion of the Judge; for that, if the principal is good in any case, it must be so in all cases where judgment of death is recorded, no matter whether the sentence is to be carried into effect, or commuted to a minor punishment.  I apprehend it is no more arbitrary than any other discretionary power vested by law in a Judge, which is to be exercised soundly and considerately with reference to the circumstances of the case.  There are many rules rigidly right, which it would violate the dictates of nature, and offend the honest prejudices of mankind to enforce.  Cases may arise, and do often arise in practice, where a court of justice is induced upon these considerations to depart from the rigid rule.  A parent may be called as a witness against a child, and vice versâ, but in cases of life and death, it with the most painful reluctance that such evidence is ever resorted to, and never if it can possibly be avoided; and this upon the principle to which I have adverted.

Another argument was strongly pressed upon us, which if it is of any validity seems to me to tell rather in favour than against the reasonableness of the evidence which we feel ourselves, with some embarrasment [sic], compelled to lay down.  It is said, that if we receive such a man as this as a competent witness, we shall degrade the character of the Colony.  I venture, however, with some confidence, to hope that no dictum of this Court, which is not opposed to right reason, or to the immutable principles of truth and justice, will have the effect of either degrading or exalting the character of this part of the King's dominions.  The resolution which we are compelled to form, in holding that a canon of evidence in force in New South Wales, results from a painful consideration of the exclusive character of the Colony itself; and I rather pursuade [sic] myself that the good sense of the community in which we live, will go along with us in the reasonableness and justice of our determination, even if it were opposed to our legal powers of adjudication.  By this resolution another safeguard will be thrown around the property and the lives of a all well disposed members of society.  Guilty and desperate men, engaging with others in nefarious crimes, will be taught that the mouths of their infamous companions will not be closed against them by an objection in its form technical, and that the arm of justice is long and strong enough to reach them, through means not repugnant to the dictates of common sense, or opposed to the spirit of British law.

It may be that a case precisely like this, in the circumstance that this man was an accomplice in the very crime, with which he was called, as a witness, to fix other persons, has never arisen before.  This distinction cannot, in my judgement, affect the principle of the objection; for it must, if sound and not to be invaded as an essential maxim of the common law of England, be equally applicable in all cases where the witness is a convicted felon, whether convicted at home or in the colony.  Difficulties like these must, I apprehend, have been foreseen by the legislature at the time of erecting this Court for the administration of justice, in a country where such an objection might every hour be raised to the competency of three-fourths of its population; and the omission to legislate upon such a vital subject, reasonably implies that the legislature intended to leave the rules necessary to the execution of the laws, to the judgment and determination of the Judges in the practical administration of justice.

I cannot conceive any real evil likely to arise from resorting to this resolution.  This man was tendered as an accomplice in the very crime with which the prisoners were charged.  He was notoriously an infamous and worthless wretch.  His moral degradation could not be much enhanced by the fact of his having judgment of death recorded against him, after his confession of being concerned in the villainy of the transaction alluded to.  As an accomplice the Jury were called upon to deal with him in like manner as with all other accomplices, namely, to disbelieve him altogether, and treat him as no witness at all, unless he were satisfactorily confirmed in some material part or parts of his story by unimpeachable testimony.  Never, in the course of my experience, did I see such a witness comport himself with so much consistency, accuracy, and credibility; for six or seven hours he was in the witness box, and stood the brunt of three successive most acute cross-examinations by the prisoners' respective Counsel; he was unshaken in any part of his statement.  In several material circumstances mentioned by him he was confirmed by unquestionable testimony, and the Jury drew such a conclusion from the evidence as every unprejudiced man who heard the trial must equally have formed.  Great confidence must be reposed in the discretion and discernment of Juries when called upon to deal with the testimony of such a witness, and I doubt not that whether the present Jury system shall continue, or be succeeded by another more analogous to that of the mother country in criminal cases, the administration of justice may be safely committed to their hands in the province of weighing human testimony and determining upon the guilt or innocence of their fellow creatures.

Great stress was laid on the wording of the 24th section 9 Geo. IV. cap. 83, and particular weight was attached to the words ``so far the same (the laws and statutes of England) can be applied within the said Colonies."  Now, reading the word can, as importing what is possible to be done, still we would be driven to the consideration of all the circumstancs [sic] under which the power of administering the laws of England is to be exercised.  We can, and it is possible for us, to enforce this very objection against every transported felon from Great Britain to New South Wales, tendered as a witness, by only postponing the trial in every case until a copy of his conviction and judgment can be obtained from home; but would this be acting upon the spirit of the statute under which we are sitting?  I apprehend it would not.  Other cases might be put in which this power of extending the common law of England might possibly be exercised, which it is unnecessary now to mention but which would in practice operate as a denial of justice in many cases, and utterly defeat the end and object of the legislature in framing a statute for the peculiar government and municipal regulation of this distant settlement.

After an anxious review of the whole of this case, it appears to me that we cannot, in the discharge of our public duty, but come to the conclusion that this man was a competent witness.  Such a resolution, I repeat, is but a rule of practice of our Court - formed in keeping with the authority given us by Parliament - flowing out of the necessities and contingencies arising in the due administration of justice in this peculiar settlement.  I have shewn that it is not opposed to the spirit of British law, though it may be to a rigid, even a fundamental Rule of Practice in the mother country, - that it is conformable to the long-settled usages of the Colony itself since its foundation, - that it is not repugnant to common sense, right reason, and humanity, - that it is agreeable to numerous precedents. - that it is in keeping with the interests of civilived [sic] society, in protecting it against the grievous outrages of lawless men, committing crimes in secret, and by artful combination violating the rights of property and invading the peaceful dwellings of well-disposed citizens, - and, lastly, I have shewn that by the authority of Parliament we are directed to adjudge and decide as to the application of the common law of England to the circumstances and condition of the Colony.  Assuming that there were any overwhelming repugnancy in this resolution to the spirit of British law, and that we were obstructed by the wise and constitutional maxim that Judges cannot make law, what remedy would there be for the evil?  The Legislative Council of this Colony are, by the 22d section of the New South Wales Act, sub modo, restrained from passing laws which are repugnant to the laws of England; but even if they were to pass laws so repugnant, notwithstanding the protest of the Judges, they would still be of validity until His Majesty's pleasure should be made known.  But I deny that this resolution is repugnant to the spirit of the British law; and I also deny that we are legislating in the sense attributed to this proceeding in the course of argument.  We are performing a public duty imperative on us by the great Legislative Council of the Empire itself.  The Courts of the mother country admit, as matter of mere practice, the testimony of infamous and worthless men in consequence of the absolute necessity of resorting to their evidence for the welfare of society in the detection of enormous crimes.  Spies, informers, and accomplices are there used as mechanical instruments to set the law itself in motion.  It is true they have hitherto stopped short in the case of a man against whom judgment of death may have been recorded.  But a state of society may possibly, though not probably, arise even in England, which may induce the Judges, from reasons of expediency and necessity, to retrace their steps and remodel a Rule of Evidence which is but the creature of the Courts, and not depending upon any enactment of the legislature.  The extraordinary and peculiar state of this country compels us not only to act in obedience to the law, and determine whether this Rule of Practice, even though it be fundamental, be or be not applicable to this Colony, but to follow up the principle of necessity and expediency, by going a step farther than the venerable Judges of England.  We are not originating a principle which is unknown to the common law.  We are but following it up, and giving it more force and vigour in asserting the dispensation of justice in cases which would otherwise be beyond her reach.  As a rule of practice, and as part of the machinery by which the stream of justice is kept in a continuous course for the sustentation of the laws themselves, I entertain no doubt that we have authority - that as humble ministers at the altar of justice, we are bound to maintain her sacred rights - nay, that we should stultify ourselves if we hesitated to hold that this man was a competent witness.  In latter times, the Judges of England have strongly inclined to evade objections going to the competency of witnesses, on the score of infamy, wisely deeming it the safest course and the most consistent with common sense and reason, and more consonant with the interests of the justice, to let their testimony go with all its brands of infamy to the Jury, for them to judge of its credibility.  On this broad principle all difficulty on my mind is removed.  Let the doors of justice be thrown open to all men short of a person in the extreme case to which I have alluded, whom it may be practicable to admit, in order that those who are to execute the laws may have the benefit, as much as is worth, of any human testimony which may develop truth, and give vigour to the arm of justice.

If after this exposition of the opinion entertained by my brother Stephen and myself, the local legislature shall deem it expedient to remove all doubts upon the subject by passing an ordinance, be it so, and no time should be lost.  I shall, of course, bow with the utmost deference to its wisdom.  We, the majority of the Judges of the Supreme Court, are however but conscientiously discharging our duty in declaring, in pursuance of our general powers as Judges of a Court of record - first, that this canon evidence, is matter of practice, adopted to the practical administration of justice in this Colony; and, secondly, regarding it as a fundamental principle of the common law, that from our judicial knowledge of this country, it is not as yet adapted to the state and condition of a Colony, which still retains its original predominating character as a penal settlement of the mother country.

I have thus elaborately, though I fear imperfectly, gone through this subject, not from any doubt or difficulty which I entertained at the trial, for I overruled the objection; but the point having been saved at the earnest entreaty of the prisoners' Counsel, and afterwards sustained with an unusual degree of earnestness, zeal, and learning (which were doubtless exerted from great confidence in its tenebility), I have thought it my duty to state at large some of the reasons on which I am of opinion that William Blackstone was a competent witness on the trial of the prisoners.

With respect to the other objections taken in argument, they apply solely to the case of the prisonerThomas Woodward.  The opinion of the Judges on these points is unanimous.  The first objection is, that there was no proof at the trial that he knew that the notes which he was charged with receiving, were, in fact, stolen by the prisoners Farrell and Dingle.  Certainly if that were the charge which he was called upon to answer, some proof must have been brought forward to infect him with a knowledge of that fact; but upon looking at the record, no such allegation is contained in the indictment.  It charges the prisoners Farrell and Dingle, the one as the principal felon with stealing, and the other as an accessary before the fact of stealing; and then it goes on the chargeWoodward with receiving part of the stolen property, not with a guilty knowledge that it had been stolen by the prisoners previously named, but with a knowledge generally that the part of the property which he had received, was in fact stolen.  It first specifies the portion of the property, and describes it as being ``part and parcel of the promissory notes, and goods and chattels aforesaid, so as aforesaid feloniously stolen, taken, and carried away;" and then proceeds to charge the receiving and scienter by Woodward, ``feloniously did receive and have, he the said Thomas Woodward then and there well knowing the said promissory notes, and goods and chattels last aforesaid, to have been feloniously stolen, taken, and carried away," against the statute.  There is nothing here to charge the prisoner with a guilty knowledge that the notes had been stolen byFarrel and Dingle, or by any other person by name.  It is a general charge that he received the notes, with a guilty knowledge that they had been n fact stolen.  If the charge had been that he received the notes, well knowing that they had been stolen ``as aforesaid," then those latter words might have tied the prosecutor up to proof of the fact, that he actually knew the persons by whom they had been stolen.  But those words are omitted in this part of the indictment.  It is a simple allegation that the notes stolen ``as aforesaid" he did receive and have, knowing them to have been stolen, but not charging him with a knowledge of the manner in which they had been stolen, or of the persons by whom they were stolen.  If the indictment contained such allegations they might be utterly incapable of proof.- Suppose the indictment charged him with receiving the notes, with a guilty knowledge that they had been stolen ``by a person or persons to the Attorney General unknown," then he must have been acquitted, because the stealers were in fact known.  It appears to me that this indictment is well framed, and certainly is agreeable to the precedents used in practice in the Courts at home in like cases.  The objection is ingenious enough, but I think it is wholly untenable.  It is no less an offence within the statute whether the receiver did or did not know by whom the goods were stolen, and if this proof were required it would be impossible, in many cases, to reach a receiver; for it is notorious that stolen property very frequently passes from hand to hand, and it may be that the last receiver is wholly ignorant of the manner in which, and the persons by whom it is stolen, although his conduct may betoken a guilty knowledge that is has been feloniously stolen by somebody.  On these grounds I am clearly of opinion that we cannot give effect to the objection.

The remaining objection is more of a technical nature, but in my opinion it is equally untenable.  In one part of the indictment against Woodward, the property stolen is described as ``promissory notes," of a certain value respectively, and in another they are described as ``three hundred pieces of paper of the value of £30."  Assuming that as promissory notes they are of no value, because taken from the Banking-house, and consequently as to the Banking Company, they cannot be said to be ``unpaid and unsatisfied," still it is said, that if they are of any value as so many pieces of paper, it was incumbent on the framer of the indictment to describe them as so many pieces of ``engraved paper, or printed paper," for non constat that as mere bits of paper they are of any value whatever.  I apprehend it is for the Jury to determine upon the evidence, whether, as pieces of paper simply, they were of any value.  Now, it was sworn on the trial, that, as mere waste paper, these notes were worth at least one penny, which is quite sufficient to shew that they were the subject of larceny.  It appears to me, however, that if they were of any value at all, it was quite unnecessary to describe the sort of paper, or set forth any adjunct of the thing itself.  In charging a larcenous taking of a piece of woollen cloth, or a silk handkerchief, it would be rather a novelty if the pleader were required to set forth the colour of the cloth, or the pattern of the handkerchief.  It appears to me that there is quite sufficient certainty in describing these notes as so many pieces of paper, value so much, in contradiction to any other matter which may be the subject of a felonious larceny, or felonious receiving.

Mr. Justice Stephen briefly expressed his perfect concurrence in the judgment delivered by Mr. Justice Dowling.

Mr. Foster here rose, and stated that at the request of his learned colleagues, as well as on his own behalf, he was desirous of stating that neither he nor they had admitted that the 24th section of the New South Wales Act empowered the Judges of the Supreme Court to alter the common law; that section applied to the statute law in the administration of justice in the Colony.

Mr. Justice Stephen said, that in his opinion the section applied alike to the common law and statute law, and gave the Judges of the Supreme Court a discretion in the application of both.

Mr. Foster said that might be the opinion of His Honor, but it was one to which he was desirous it should be understood that his learned friend and himself did not assent.  He (Mr. Foster) had now to apply to the Court for permission to appeal to the King in Council from the decision to which the Court had just come.  He therefore hoped that the Court would not now proceed to pass sentence on the prisoners, but afford an opportunity of instituting the appeal.  He was willing to enter into any recognizances that may be required for the prosecution of the appeal.  This request was the more reasonable on account of the division of opinion on the Bench on this most important point.

Mr. S. Stephen and Mr. Therry severally stated, that their original impression of this case was so strongly confirmed by the powerful and commanding arguments of His Honor the Chief Justice, in support of the same view of it, that they earnestly hoped the Court would permit the appeal now prayed for.  They were willing to enter into any recognizances the Court might appoint, on behalf of their respective clients.

The Chief Justice said, that this application came unexpectedly upon the Court.  They would consider of it.

Mr. Justice Stephen wished to know if there was any precedent for such a course as that now suggested.

Mr. Foster replied, that in all matters criminal as well as civil, an appeal lay from the Colonies to the King in Council.

Mr. Justice Stephen said he did not know of any similar instance.  He should like to hear of some case in point.

Mr. Therry replied, that that celebrated case of Missionary Smith was one in point.  He had been sentenced to death for abetting an insurrection in Demerara; there was an appeal to the King in Council from that decision; the King's pardon of Mr. Smith was obtained in consequence of that appeal; though, unfortunately, Mr. Smith did not live to enjoy the benefit of it, as he died in prison before the pardon arrived in Demerara.

Mr. Justice Stephen - Mr. Smith was tried by a court martial; and the appeal in that case was on the ground of the incompetency of the tribunal that tried him.

Mr. Therry - That was only one ground of the appeal - there were three grounds of appeal in that instance.  First, the impropriety of the tribunal; secondly, the incorrectness of its mode of acting; and thirdly, the violence of the sentence.  In the present case no appeal could be made on the ground of the impropriety of the tribunal, for the Court was clearly competent to exercise the power; the appeal, therefore, should be on one of the other two grounds.

The Court consulted together for a few minutes; after which

Mr. Justice Dowling addressed the prisoners to the following effect:- The novel application which has been made by the learned Counsel who have just addressed us, to suspend the judgment of the Court until an appeal to the King in Council against our decision has been determined, being wholly unsupported by any authority, there is nothing to restrain us from proceeding to pass judgment.  But even supposing such an appeal would lie in a case of  felony, we must at all events perfect the record of our proceedings by awarding judgement as the law directs in your several cases.  Independently of this necessary duty cast upon us, I cannot conceive any advantage which could be derived from such an appeal, even if our decision could be considered erroneous.  All that could be transmitted would be the record of the proceedings, which, if perfect on the face of it, would not disclose the grounds of our decision on the point now brought under judgment.  There would be nothing, therefore, upon which the King in Council could adjudicate as an appellate tribunal.  It is a long settled rule, that no writ of error lies upon a judgment in cases of felony, but even if it did, a writ of error, at common law, would not operate as a stay of execution.  No provision has been made in the New South Wales Act for an appeal to the King in Council in criminal cases.  In civil cases, to a certain money amount in dispute, there is a provision for that purpose, and a mode pointed out for transmitting the record and evidence to the appellate jurisdiction.  It remains, therefore, for the Court to award such judgment as the peculiar circumstances in which a majority of the judges are been placed, may be satisfactory, rather to propriety than to a strict sense of the duty which we owe to public justice and laws of the land.  Of your moral guilty of the nefarious crimes of which you have been severally convicted, no reasonable person can entertain a shadow of doubt.  After consulting with my learned brethren as to the course now to be pursued, I concur with them in thinking, that out of deference to the dissenting opinion of His Honor the Chief Justice as to the legal competency of William Blackstone, the most considerate step to take is, not to pass sentence of death upon you George Farrell and James Dingle, and award execution accordingly, but to order judgement of death to be recorded only.  This course is taken, not from any misgivings of the majority of the Judges as to the legality of your conviction, but from a semely deference to the conscientious doubts entertained by the Chief Justice in a case of life and death.  The Judges of this Court have no direct means of consulting with, or referring to the venerable Judge of England upon any legal point of doubt or difficulty, and as it would be too painful to cast upon two out of three Judges the onerous responsibility of directing the law to be carried into effect, by a forfeiture of life, we have come to the resolution that justice will, under all the circumstances of the case, be satisfied in the manner I have mentioned; and therefore this Court doth accordingly award, order, and direct, that judgment of death be recorded against you George Farrell and James Dingle.  Though human life may be spared in this instance for the reasons I have suggested, I trust that some steps will be taken hereafter to prevent the recurrence of an objection so detrimental to the interests of public justice.  With respect to you, Thomas Woodward, all the Judges unanimously concur in thinking, that as your life is not in jeopardy by the objection taken on your behalf in common with your fellow prisoners, the aggravated circumstances of your case, notwithstanding the character given you by a number of most respectable persons, are such as compel them, in the discharge of their duty to the public, to award the extremest punishment authorized by law in the case of receivers of stolen goods.  The Court therefore doth order and adjudge, that for the offence of which you have been convicted, you be transported to such penal settlement as His Excellency the Governor shall direct and appoint, for the term of fourteen years.[5 ]


[1 ] See also Sydney Gazette, 30 June 1831; and Australian, 19 July 1833.

This is one of the few cases in the Forbes years to be reported in Legge's Reports: (1831) 1 Legge 5.  Legge compiled his Reports in the 1890s, in this case from the report of the case published in the Sydney Gazette.  Legge excluded much of the argument of counsel which is contained in theGazette and which is published here.

Justice Dowling accepted the authenticity of the Gazette's version of the case, which he pasted into his Proceedings of the Supreme Court, Vol. 56, Archives Office of New South Wales, 2/3239, p. 158.  It also appears in his Select Cases, where he recorded the principle as follows (Dowling,Select Cases, Archives Office of N.S.W., 2/3466, p. 73): "A Capital convict against whom judgment of death has been recorded but whose sentence has been commuted to transportation for 14 years to a penal settlement is a competent witness as a competent accomplice upon the trial of persons charged with a felony."

On 14 August 1834, Forbes C.J. and Dowling J. wrote to McLeay, the Colonial Secretary in response to his request on 8 August 1834 for a copy of the rules as to appeals to the King in Council.  They replied that: ``we have the honor to inform you that by the Act of Parliament [in margin, 9 Geo 4 c 83 s 15] for the administration of Justice in this Colony, His Majesty is authorised by Charter or Order in council to allow appeals from the Judgments or decrees of the Supreme Court to his Majesty in Council in such manner within such time, and subject to such rules regulations and limitations, as His Majesty shall appoint and prescribe.  We have further to inform you that no such Charter or order in Council has been made since the passing of the Act of Parliament, and we are not aware of any rules or  regulations for appealing from the decisions of the Supreme Court of this Colony to His Majesty in Council."  Source: Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 382.  See also Australian, 24 June 1834.

For commentary on this important case, see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 200, 500, 503, 507, 528.

[2 ]According to the Sydney Herald, 13 June 1831 and Sydney Gazette, 14 June 1831, the three were tried and convicted on 10 June 1831. Farrell's offence was stealing in a dwelling house, whereas Dingle was found guilty of being present, aiding and abetting, and Woodward of receiving the property.  The property concerned included a vast quantity of money and banknotes.

The Gazette reported the trial at length.  It noted the following exchange at the beginning:

"Dr. Wardell having stated the case to the Jury, proceeded to call William Blaxtone, whom the learned Counsel introduced to the Court as an accomplice.

"Mr. Stephen, on behalf of the prisoner Farrel, objected to the competency of the witness, he being at present under an unsatisfied sentence of transportation, for a capital felony committed in this Colony, and for which judgment of death had been recorded against him.

"Mr. Therry, for the prisoner Dingle, and Mr. Foster, for Woodward, supported the objection raised by Mr. Stephen.

"The learned Judge overruled the objection on the authority of the case of the King against James Gardiner and James Yems, wherein the same point had been raised, and after hearing argument on both sides, had been overruled by the full Court; the Judges deciding, from the reason of the thing, arising out of the state of society here, that persons under sentence for offences committed in this Colony were competent witnesses.

"Mr. Therry hoped his Honor would give himself and his learned colleagues an opportunity of mooting the question once more, in another stage of the proceedings, should it be thought necessary.

"Mr. Justice Dowling - Certainly, Mr. Therry, you may raise it as often as you please."

The Gazette also reported that Wardell, Wentworth, Moore and Rowe acted for the prosecution in the trial, and Stephen, Therry and Foster for the defence.

See also R. v. Smith, 1831; and R. v. O'Brien, 1831.

[3 ] Blackstone was again before the court in 1833, when he, Curran and McGrath were found guilty of stealing from a warehouse: Sydney Herald, 4 February 1833.  Blackstone was sentence to transportation for life, because he was an old offender: Sydney Herald, 23 February 1833;Sydney Gazette, 28 February 1833.

[4 ] The Legge's Reports version of the report begins here.

[5 ] On 7 June 1833, the Australian reported that the three were rumoured to be about to receive pardons.  A petition had been forwarded to the governor, the second in 12 months.  The newspaper argued that their conviction was contrary to the fundamental principles of British law.  It also noted that Blackstone had since been convicted of a capital felony and again transported to Norfolk Island for life.  The question to be asked, said the Australian, was whether the colony was governed by the laws of England or "whether it is in the breasts of Judges to apply them or not according to their views of expediency."  The same newspaper reported on 27 September 1833, that the judges were due to report on the case, and that the recent appointment of Burton J. to the bench swung the court against the legality of the conviction.  It expected a pardon from the governor. 

On 1 November 1833, the Australian pressed again for a quick consideration of the case, on the ground that the convictions were based on the inadmissible evidence of an attainted convict.  See also Australian, 18 and 22 November 1833.  The Australian was still concerned on 20 January 1834 that the three continued to linger at Norfolk Island.  It reported on 7 March 1834, that the petition was unsuccessful, the judges having declared that the convictions were correctly made.

See also R. v. McCabe, 1833; and see Sydney Herald, 25 July 1831.

Published by the Division of Law, Macquarie University