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

R v Smith [1831] NSWSupC 36

receiving stolen goods - Prospect - approver, evidence of - felony attaint - convict evidence - pardon - self incrimination, privilege against

Supreme Court of New South Wales

Stephen J., 15 June 1831

Source: Sydney Gazette, 18 June 1831[1 ]

John Smith stood indicted for receiving one black velvet waistcoat, the property of Mr. Francis Mowatt, before feloniously stolen by one John Walmsley and one William Webber, he, the said John Smith, well knowing the same to have been stolen, at Prospect, on the 7th of December last.

John Walmsley, an approver examined - I have known the prisoner for two years; he resided on the Richmond road, near Prospect; shortly before Christmas last, at night, I went to his residence, and saw a man named William Bradley there; Smith was then at a farm a little distance off, and I sent Bradley for him; when he came he recognized me directly; and said ``Walmsley is this you?  You are a very lucky man in reigning so long;" we had some rum together; while we were drinking, I told Smith that Webber was in the bush at hand, and he desired me to go and bring him in; I went accordingly, but Webber refused to come as there were strangers in the house; I returned back alone, and while I was in the house I gave Smith a black velvet waistcoat, which I told him I had taken from Mr. Mowatt, on the Liverpool road; when I went to Smith's I was armed with a brace of pistols and a fowling-piece; I remained in the house all night, and went away about day-break in the morning.

Mr. Therry, of Counsel for the prisoner, who, under a supposition that the trial would not come on to-day, was not present at the commencement, here came forward, and, addressing the witness, asked,

``Who are you?  Are you Walmsley?"

A. - Yes.

Q. - Oh! you were sentenced to be hanged, were you not?

A.- Yes.

Mr. Therry - Your Honor, I object to this man's testimony altogether.  He is under sentence of death, and, I contend, incapable of giving evidence in this Court.  I call upon Mr. Gurner to produce the record of his conviction.

Mr. Gurner, Chief Clerk of the Supreme Court, read the records of John Walmsley's conviction for housebreaking and highway-robbery, for which crimes sentence of death was passed upon him on the 12th of January last.  Mr. Gurner, however, did not identify the witness as the individual referred to in the records.

Mr. Francies Mowatt deposed that he was present when John Walmsley, now before the Court, was convicted and sentenced to death for housebreaking and highway-robbery, in January last.

Mr. Moore, in answer to the objection, handed to the Court His Excellency the Governor's unconditional pardon for the crimes of which the witness, John Walmsley, had been convicted.

Mr. Therry requested that the pardon might be read.

Mr. Gurner read the pardon which, after the usual preliminary matter, recited that His Excellency the Governor, by virtue of the powers delegated to him by commission from His Majesty, and in consideration of some favourable circumstances which had been made to appear to him, had granted a free and unconditional pardon to John Walmsley, for the crimes of which he had been so convicted.

Mr. Therry, in a very elaborate and ingenious argument, contended, assuming the Governor to have power to grant pardons - a power which great constitutional lawyers had doubted the King's authority to delegate - that the instrument before the Court could only be received as a conditionalpardon, and did not restore the recipient to his competency as a witness.  The learned counsel, in support of his argument, cited a case tried in the Supreme Court of this Colony, before the Chief Justice, in the year 1825, wherein His Honour held that the Governor's conditional pardon to a capital convict - the condition being unfulfilled - did not restore the party to his competency as a witness; and under those circumstances, rejected the testimony of an approver.  He (Mr. Therry) admitted that, the case he referred to was so far different from that before the Court, inasmuch as,there the pardon was expressly conditional; here it purported to be absolute and unconditional.  Still, he contended, that the pardon just read could not be looked upon as unconditional: that it could not take effect until allowed by the Secretary of State in England, and therefore depended upon a contingency.

Mr. Moore admitted that the Act of Parliament required the allowance of the Secretary of State for all pardons granted by the Governor; but the Act also provided that, until such pardons were either ratified or disallowed by the authorities at home, they should have full force and effect within the Colony.

Mr. Therry contended that the only effect which such an instrument could have, or which the Act of Parliament cited by Mr. Moore intended it should have, was that of a sign manual pardon, which merely freed the holder from personal restraint, but did not restore his civil rights, until ratified under the great seal.

Mr. Rowe followed on the same side, and contended, on the wording of the instrument purporting to be a pardon, that the two crimes therein referred to did not, as they ought, clearly appear to be the crimes set forth in the records of conviction read to the Court.  Non constat that those were the crimes for which the Governor's pardon - admitting it to be valid - had been extended.  The pardon was for the crimes of which the witness had been ``so convicted:" they ought to have been specially recited in the instrument.  The learned gentleman also argued in support of the distinction taken by Mr. Therry between sign manual and great seal pardons.

Mr. Justice Stephen overruled the objection, leaving it to the prisoner's counsel to take the opinion of the Court upon it at another stage of the proceeding, should it become necessary.  It was clear that His Majesty had a right to delegate his power to pardon to the Governors of the colonies, and he had done so, in all cases except those of treason and murder.  In the case cited by Mr. Therry, of which His Honor had no knowledge, but which he presumed was correctly reported, it was evident that the Chief Justice had decided against the competency of the witness, upon the ground that the pardon was conditional, and that the condition was unfulfilled.  Here the pardon was free from condition: it was absolute; and being so, as at present advised, he held that, by it, the witness was rendered competent.

Mr. Moore then proceeded with the examination of the witness, who said - I told the prisoner where I got the waistcoat; William Webber was with me when I robbed mr. Mowatt; we robbed him a long while before Christmas, on the Liverpool-road, about two miles on this side of the toll-bar; he was travelling with his servant, in a gig; we took from him a gold watch, a brace of pistols, two Spanish dollars, and a quantity of wearing apparel, among which was the silk-velvet waistcoat which I gave to the prisoner; when we were committing the robbery, Webber got into the gig, to see what money and property Mr. Mowatt had.

Cross-examined by Mr. Therry - How many murders have you committed these two years past?

A.-  Not one.

Q.-  Not one?

A.-   No, not one.

Mr. Moore here interposed, and submitted to the Court that such questions were improper, and ought not to be allowed to be put.

Mr. Therry and Mr. Rowe severally contended that they had a right to put what questions they pleased to the witness although he might refuse, if he thought proper, to answer such as would criminate or degrade him.

The learned Judge admitted the right to put the questions, but said he should feel it his duty to caution the witness against giving answers which might criminate himself.

Cross-examination continued - Did you ever hear of a Mr. Clements?

A.-  Yes.

Q.-  What became of him?

A.-  He was shot, on the Coal-river road, by a man who was along with me.

Q.-  What did you and your companion do with the gun you took from him, after he was shot?  Where did you plant it?

A.-  We took no gun from him; it was a pistol.

Q.-  Had you possession of that pistol afterwards?

The Court intimated to the witness that he was not bound to answer the question.

Q.-  Well, did you leave it at Major Antill's farm when you ran away?

A.-  I'll not answer that.

No, you'll not say any more about Mr. Clements.  How many highway robberies have you committed within these two years?

A.-  I can't tell.

Q.-  Are they so many that you can't tell the number?  Come, speak out, as you did to Mr. Mowatt in the gig.  Answer, Sir.

A.-  I'll not answer that.

Q.-  Well, will you let us know how many you have broken into in the day time?

A.-  No.

Q.Come I'll put it in a shorter manner to you.  Will you tell us, you witness of truth to-day, what crime in the whole catalogue of crimes is there that you have not committed?

Mr. Justice Stephen - The question is one which his Father Confessor might put, but not such as this Court has a right to ask.

Mr. Therry - I assure your Honor, if he goes there he'll be put hard duty [laughter]. - Come, Sir, I want to give you your choice: think of the table of sins as His Honor has just reminded you, and inform us what crime you have not committed? - What, you won't answer?  Do you think, now, that there is on the face of God's earth a greater villain than yourself?

A.-  I'll not answer that.

Q.-  Have you any doubt of there being a greater reprobate on earth than yourself?

A.-  I'll not answer that unless His Honor bids me.

Q.-  No, you'll not answer that.  Well, Mr. Walmsley, will you let us know how long you were in the bush.  There's no harm in being in the bush, you know, though I should not like to meet you there after this day's conversation.  Come, enlighten us on that subject.

A.-  I'll not answer unless directed by His Honor.

Mr. Justice Stephen - I see no objection to your answering the question.  There is no harm in being in the bush: you may have been working there.  If you understand the question to have reference to any robberies committed there, you are not obliged to answer it.

Mr. Therry - Oh! I am satisfied to take the answer in that way.  -  How long have you been working in the bush!

A.-  Nearly three years.

Q.-  You had a fine time of it, working in the woods, with your tools, - a gun and a brace of double-barrelled pistols.  Different sorts of work, eh?

A.-  I'll not answer that.

Q.-  No, you'll not answer that either.  Well, how long had you known your late friend, Donohoe?  Will you answer that?  Did you know such a man at all?

A.-  I'll not answer that either.

Q.-  Well, will you tell us what you were sent out here for?

A.-  Housebreaking, but only on suspicion.  I had death recorded against me.

Q.-  Oh! of course only on suspicion - an honest man like you!  Will you swear it was only on suspicion, and that you were not guilty of the crime for which you sent out?

A.-  I'll not swear any thing about it.

Q.-  Do you swear it was only on suspicion you were sent out here?

A.-  I was found guilty of housebreaking, and sent out here.

Q.-  Were you sentenced to death on that occasion?

A.-  I do not know my sentence:  I believe it was death recorded.

Q.-  Yes, and you were lagged for life; - is'nt that it?

A.-  I believe so.

Q.-  Were you not sentenced to be hanged in this colony?  I don't care a fig whether you answer the question or not, because we have better evidence of that fact than yours.

A.-  I was.

Q.-  Now, I ask you whether you gave any information before sentence was passed upon you, or was it not after, to save your own neck?

A.--- It was after.

Mr. Therry - Really, your Honor, with such a fellow as this in the witness-box, I think it better to reserve any further questions I may have to put to him, until I see what other evidence will be called to support this case.

Mr. Francis Mowwatt was then called, and detailed the circumstances of the robbery committed on him by Walmsley and Webber, on the Liverpool road.  Among the property taken from him was a black silk-velvet waistcoat; witness refused to take it off when oredered to strip by the robbers, upon which Webber tore it from his person.

This was the case for the prosecution.

Mr. Rowe submitted, in point of law, that the information could not be supported.  The waistcoat which the prisoner was charged to have feloniously received was laid as the property of Francis Mowatt.  Now, it was a well-established principle of law, that where a receiver was indicted for having stolen property in his possession, the owner of which was known, that the proof must support the allegation in the indictment.  In the present case the waist-coat was laid as having been stolen from one Francis Mowatt, whereas there was no evidence of that fact, the last witness having merely been placed in the box as Mr. Mowatt, and his Christian name never asked by the Crown Officer.

Mr. Moore said he had asked the Christian name of the witness.

Mr. Rowe  pledged himself, and was ready to give evidence to that effect, on oath, that no such question was asked.

Mr. Justice Stephen asked whether, when there was an assertion by one learned gentleman, and a denial by the other, it was not competent for the Court to put the question to the witness?

Mr. Rowe said, not after the case was closed.

The learned Judge said the Court had the power to put a question at any stage of the trial.  His Honor then called back the witness, who stated his name to be Francis Mowatt, but that he had not been asked that question when under examination by the Crown Officer.

Mr. Rowe protested against the admissibility of the evidence, and requested His Honor to take a note of the objection. 

John Walmsley was then re-called and further cross-examined by Mr. Therry.

Well, have you been thinking of some of those questions I put to you, and will you answer them now?

A.-  No.

Q.-  When was it you first went to the prisoner, about the transaction of which you have been telling us?

A.-  A little before Christmas last; in harvest time.

Q.-  Do you know the day of the week, or what month it was in?

A.-  No; I only remember that it was a short time before Christmas.

Q.-  Had you any working implements with you then?

A.-  Yes.

Q.-  That is, you had a gun and a brace of pistols?

A.-  Yes.

Q.-  It was during your ``reign" in the bush?

A.-  Yes.

Q.-  Was Donohoe with you?

A.-  Not at that time.

Q.-  People were generally very civil to you when they met you with your working tools.  They would give and take just as you pleased!  Now would it not be very dangerous for a person to refuse to do any thing you asked, during your reign in the bush - I mean while you were working there with two pistols and a gun?

A.-  I'll not answer that.

Q.-  You remember Mr. Mowatt's robbery?

A.-  Yes.

Q.-  You recollect when you pulled off his boots on the Liverpool road?  -  Do you?  -  Come, answer, yes or no?

A.-  It was not me.

Q.-  Oh! you held him while some one else did; was that it?

A.-  No.

Q.-  Have you a very good opinion of yourself.

A.-  Not very.

Q.-  Now, I ask you, would you hang a dog, on the testimony of such a reprobate as yourself?  -  Would you now?  -  Come, answer that, and let us know the degree of opinion you entertain of yourself?

A.-  I shan't answer you that.

Then, Sir, I believe your opinion of yourself to be precisely that which every one else has of you.  You may go down.

Mr. Therry submitted that there was no case for the jury, the testimony of the approver not being corroborated in the most trifling circumstance as far as the prisoner was concerned.

The learned judge said he would leave the case to the jury, upon the evidence.  They might convict upon the unsupported testimony of an accomplice, if they believed it, although the judges would always advise them to look narrowly at such evidence.

His Honor then summed up, and the jury, after retiring for a short time, returned a verdict of Not Guilty, which was received with evident satisfaction by a very crowded auditory.


[1 ] On the point of law, see also R. v. Farrell, Dingle and Woodward, 1831; R. v. O'Brien, 1831.

Published by the Division of Law, Macquarie University