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

R v Toole (1831) NSW Sel Cas (Dowling) 338; [1831] NSWSupC 82

indictments, error in - receiving stolen goods - criminal procedure

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 19 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[1 ]

[p. 117] [A prisoner was convicted and received Judgment for feloniously receiving stolen goods the property of WC. no proof being given of the Christian name of the [p. 118] person to whom the goods belonged.]

[p. 117]

Saturday 19th November 1831

Coram Forbes CJ

Stephen J

Dowling J

Rex v Toole

The prisoner was tried before Forbes CJ. for feloniously receiving a watch the goods of one William Clements well knowing the same to have been feloniously stolen by John Walmsley & John Donoghue on 1st Sept 1829.[2 ]  The principal witness was Walmsley an accomplice who proved the fact of the Robbery on the person of a Mr Clements.  The case for the Crown was [p. 118] closed without any proof the Christian name of the person robbed, who had in fact been murdered by Donoghue in the wild bush.  The prisoners counsel then submitted, that there ought to be an acquittal, but the Judge held that under the circumstances of the case, in the absence of any proof that the name of the person robbed was not William Clements   The Jury might presume the name to be correctly stated, on the principle that here there was certainty to a common intent, in the case where the true name of the owner was not of the essence of the offence.  The prisoner was convicted but the point was saved.

The Prisoner being now brought up for judgment Rowe renewed the objection.

[p. 119]  Stephen J.  I am of opinion that the conviction was right.  The essence of the offence is that he had received the watch knowing it to have been stolen not that he knew the property to have belonged to one William Clements.  In such cases as these there is not the same strictness of proof as to ownership as in larceny, burglary, arson, robbery, or larceny in the dwelling house.  Whether the watch was the property of William Clement or of any other person is no material part of the offence charged against the prisoner.

Dowling J.  I find from the Judges report that the witness says that the Clements mentioned in the Indictment is the same Clements whose watch was stolen by Donoghue and afterwards received by the prisoner, with knowledge on his part that it was Clements watch.  The ownership of the property in an indictment of this kind is not material to be [p. 120] proved, though necessary to be stated there are many things required in form which need not be proved in Evidence where the matter stated is not material to the legal offence.  I think there was here abundant proof from which the Jury might have drawn the conclusion that William Clements was the owner of the property.  There are many cases where it is impossible to prove the true names of a party robbed or murdered.  There was here certainty to a common intent and proof to a common intent upon  matter wholly immaterial to the offence.  I therefore think the conviction right.

Forbes CJ.  I see no reason for altering my opinion which I delivered at the trial.

The prisoner was sentenced to 14 years Transportation.[3 ]


[1 ] See also Sydney Herald, 21 November 1831.

[2 ] See Sydney Herald, 7 November 1831.

[3 ] On the sentence, see also Sydney Gazette, 22 November 1831; Australian, 25 November 1831.

Published by the Division of Law, Macquarie University