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

R v Harris and Piesnell [1832] NSWSupC 87

felony attaint - approver, evidence by - stealing

Supreme Court of New South Wales

Stephen J., 7 November 1832

Source: Sydney Gazette, 10 November 1832[1 ]


Thomas Harris, and Thomas Piesnell, were indicted, the former the feloniously stealing and carrying and carrying away, on the 27th of August last, at O'Connell Plains, 18 bushels of wheat, of the value of £5, the property of James Hoare; and the latter with, feloniously receiving the same, well knowing it to bare been stolen.

The Attorney General in opening, addressed the jury at some length upon the law of the case about to be brought before them. The principal witness was an approver, and the learned gentleman contended for the competency and expediency of taking the evidence of such persons, as, in many instances, the only means of obtaining the ends of justice, and bringing other guilty persons to punishment.

James Morrison examined by Mr. Moore - At the latter end of August last, I was an assigned servant to the prisoner, Thomas Piesnell; the other prisoner was also an assigned servant to him at that time; we lived at O'Connell Plains, twelve miles from Bathurst; I know Mr. James Hoare, of O'Connell Plains; he lived about 300 rods from Piesnell's; on the night of Monday, the 27th, I and Harris went over to Mr. Hoare's barn, Harris got on my shoulders, and slipped out the stick that fastened the barn door, which he forced open sufficiently to get his arm in; the stick then fell on the inside, and the barn door opened; we both went in, and found a large quantity of wheat on the floor, of which we took a sample in our hands to the light to ascertain whether it was clean or dirty; we then closed the door, and returned home, where we went to the back window and enquired if master was in bed, on which he got up; we asked him for some bags; he enquired for what purpose we wanted them; we told him we had opened Mr. Hoare's barn; he knew before that we were to go there; he then gave us four bags, one of which was marked J E; we went with two: of the bags to the barn, leaving the other two alongside the river; we each brought about a bushel and a half of the wheat from the barn, and put it in those two bags that we left at the river; we returned again to the barn for more; and in this way filled the two bags at the river; these were about 300 rods from the barn, and about 20 rods from my master's place; we next carried the wheat to our master's in six journies, taking about eighteen bushels altogether; my master filled the four bags full, and shot the rest on the floor; he kept a reckoning of the quantity we brought each journey; he chalked it on the door with a piece of charcoal; I afterwards accompanied constables Dawson and Watson to my master's place, and saw there twelve bushels of his own wheat clean, some dirty of his own also, and ten bushels of Mr. Hoare's.

Cross-examined by Mr. Therry - I don't think I have done any thing amiss; I came out to this country for a house-robbery; I never committed highway robbory [sic]; I am for life.

Mr. Therry here took an objection to this witness's testimony on account of his being a convict, and therefore civiliter mortuus, for which reason his evidence could not be taken against Thomas Piesnell, a free subject,

By the Court. - Piesnell came out to this country a prisoner.

Judge Stephen - Then I shall receive this witness's evidence.[*]

Mr. Therry - The prisoner Piesnell came here for seven years, not for life, as the witness; and I maintain that at the end of that seven years, he became clothed with all the rights of a free subject, the same as if he had never been a convict, but the witness is a convict for life. Mr. Therry then cited in support of his argument, the 9th Geo. IV. ch. 32, sec 3.

The Attorney General. argued in reply, that the setion [sic] of the Act cited, although it established the rights of such subjects as received a pardon or satisfied the law by servitude, did not say one word against the competency of a convict to give evidence. The learned Judge said the question now raised by Mr. Therry, had been already repeatedly decided by the Court against him, and the trial must proceed; but he would reserve a note of the objection.

Mr. Therry was about to proceed with the cross-examination, when the prisoner said he first wished to speak a word to the judge in private. The learned judge however declined the audience, and the cross-examination proceeded. I may be a house breaker, a thorough-bred scoundrel, and a Belfast highwayman; it was not the love of honesty brought me here; I was once a weaver, but I thought housebreaking a better trade; I think I have heard of one who might match me in villainy; Piesnell would receive all I could steal, and give me nothing afterwards; I told a long story yesterday, but the jury would not believe it, though I spoke the truth; my fellow servant and I stole a quantity of wheat from John Hearne; there is one man in Bathurst from whom I never stole any thing, and is Captain Raine; my reason for giving evidence against my master, is because he charged me with stealing a pound; as long as I get a master who will encourage me to go thieving, I will thieve for him, but not for any body else; I was a thorough-bred thief before I came to this colony; I stole this wheat on the 27th of August, and I gave information to the to the magistrates on the 5th of September; I should not have said any thing about it, if my had paid me for it; I never made any mention of it till my master and I quarrelled; my master never threatened to turn me in on account of the pound; I never said to any person that my master threatened to turn me in, but I would turn him in and lag him; my master and I had a quarrel in the public house in Bathurst; he charged me with stealing a pound, and I gave him eighteen shillings; I never in the presence of any man put my fingers across and swore I would lag my master right or wrong; If I had done so I should consider myself a very great villain, but as it is, I think I done nothing but what is right.

Mr. Therry - I don't think that the Attorney-General's speech, to bolster up your evidence, will avail much to day. You may go down now.

Michael Clark examined by the Attorney-General - I am servant to Mr. Hoare, of O'Connell Plains; on the morning of the 28th of August I found my master's barn door open; two men had been cleaning wheat there the day before, where there was twenty bushels then, but now there were not more than four; I went and told my master that the barn door was opened, and also the men who had been thrashing ; the latter immediately got up and went with me to the barn; we went and traced some foot marks across a newly-ploughed field of Mr. Hassall's; beyond which we picked up some wheat; on the ground, which, on being compared with that left in the barn, was the same kind; we traced the wheat on to the river side; the wheat might not have been the same as my master lost, but I think it was.

Cross-examined by Mr. Therry - I know the prisoner, Piesnell; he has both wheat and maize of his own; he has a wife and family of his own, and I look upon him as an honest hard-working man; the Fish River parts my master and Piesnell's farm; there are about a dozen other settlers on the other side of the river, as well as Piesnell; there was no suspicion of him at the time; we did not follow the trace of the wheat beyond the river; I don't know much about the last witness, Morrison; I heard his evidence yesterday, but I know nothing of him.

Thomas Evans examined by Mr. Moore - I was thrashing some wheat for Mr. James Hassall, at Hoare's place, in August last ; I missed some wheat on the 28th of August; there should have been about six-and-twenty bushels, dirt and all, and there was only seven bushels and a peck left ; we saw some wheat near the river side; Mr. Godfrey and Mr. Hoare had been washing forty or fifty bushels there.

Cross-examined by Mr. Therry - Every person washes their wheat there; Mr. Hoare himself had been washing some of the very same wheat there; one grain of wheat is very like another, but I am a poor judge of it; I have known Piesnell these seven or eight years, and I never knew any thing of him but that he was a hard working, honest, industrious man.

Thomas Coggerty examined by the Attorney-General - I worked for Mr. Hassall, at Hoare's, in August last; I had some thrashing and cleaning of wheat to do; we cleaned some on the Monday, and on the Tuesday morning some of it was missed; I secured the barn at night, and in the morning a good deal of it missed.

Cross-examined by Mr. Therry - I could not identify the wheat afterwards if I saw it; Mr. Hoare was washing some wheat at the river just before; he and Mr. Godfrey, and others, were in the habit of doing so; I have known Piesnell ever since I have been in the country; he was a hard working, industrious, honest man, and always considered to be the hardest working man in that neighbourhood.

Thomas Hoare examined by Mr. Moore - I reside at O'Connell Plains; Evans and Doggerty were employed in thrashing wheat at my place in August last; I was informed one morning of my barn having been thrown open ; I went there, but not knowing who was there overnight, cannot tell whether any had been taken, although it looked scattered about; the thrashers told me that some had been had been taken, [sic] so I took a sample in my hand, and traced some footsteps across the corner of a paddock to the road, where I found some which appeared like mine.

Cross-examined by Mr. Therry - I do not recollect having washed any wheat at the river about that time; there are various settlers on the other side of the river; Piesnell grows some wheat himself; some wheat which had been taken out of Piesnell's house was shown me at the Bathurst Court, and it was like mine; if Piesnell sowed the same sort of wheat he would be likely to have crops like mine; I always found Piesnell to be a hard working, industrious man.

Coggerty re-called, and examined by Mr. Therry - The wheat I saw in the Court-house at Bathurst seemed to be of a lighter description than that stole.

Isaac Watson examined by the Attorney-General - I am chief constable at Bathurst; on the 6th September I received a warrant, and on the 7th searched the house of Thomas Piesnell; I found about forty bushels of wheat there, the greater part of which Morrison told belonged to Mr. Hoare; I saw some marks on the door, to the number of eighteen; I took some samples of the wheat on the examination at Bathurst, and sealed them up; these are they; two of them are samples of what Morrison said was Mr. Hoare's and Mr. Hassals wheat, and the other off Piesnell's own thrashing floor.

Cross-examined by Mr. Therry - This is all that worthy weight, Mr. Morrison, told me; Piesnell afforded me every facility to search, and claimed it as his own; I always considered Piesnell to be a very hard working, industrious man; I know Morrison a little, and have no good opinion of him; there was no disguise about the wheat; it was quite open; if I had been told by one man, who acknowledged himself a noted housebreaker - who had robbed from right to left - who could not point out a greater villain in the country than himself - who declared he would never throw away a chance of committing a robbery when he could - one thing, and told by a respectable, hard working man, the father of a family, another, I would, of course, believe the latter.

George Davison examined by Mr. Moore - This witness, who was the other constable employed to search Piesnell's house, corroborated the last witness's testimony.

Cross-examined by Mr. Therry - I met Morrison and his master at Mills' public-house; Piesnell wanted to give him in charge, to turn him in; I heard his master charge him with stealing a pound from him ; his master afterwards agreed to take him back again, and Morrison then required to stay in my charge; I don't known [sic] any thing of Morrison.

Mr. Hoare re-called, and examined by the Attorney-General - I took particular notice of the sample of Mr. Hassall's wheat that was left in the barn after the robbery; there are two sorts of wheat in this sample I now hold in my hand.

By Mr. Therry - I could not swear this is the same wheat.

Coggerty re-called by Mr. Therry - I think this sample is of a lighter description than that I thrashed for Mr. Hassall.

This was the case for the Crown.

On the part of the defence Mr. Therry called

William Hassall - I know Morrison; on the day he was going to Bathurst he said, at my place, that his master was going to turn him in for stealing a pound, but he would turn him in, for, right or wrong, he would lag him.

Cross-examined by Mr. Moore - I live near O'Connell Plains; I call myse'f [sic] a shoemaker, and rent some ground; I may know one Jane Everett; I don't know where she lives; my wife had some dealings with her; I believe she put my wife to bed twice; I am not aware of any of her bags having ever been at my house; I never lent a bag with the letters J. E. on it to any body, not do I recollect having ever seen such letters on a bag; I never lent a bag to Piesnell, or either of his servants, in August, to my knowledge.

Thomas Foley examined by Mr. Therry - I recollect hearing a quarrel at Batthurst [sic] between Piesnell and Morrison; the former told me he was going to turn Morrison into Government, because he had robbed him of a pound note, and Morrison immediately put his fingers across each other, and declared, by the cross of Christ, that, if he turned him in, he woul [sic] lag him, and, if he could not do it right, he would wrong.

The Attorney-General cross-examined this witness sharply, but could not succeed in shaking his testimony.

Mr. Therry here closed the defence.

Dawson re-called by the Attorney-General - I saw the last witness, Foley, one of the party, at Mills's; he had been drinking, but was not drunk.

His Honor commented at some length on the objection of Mr. Therry, and was about to recapitulate the evidence, when the foreman of the jury intimated that it would be unnecessary to trouble His Honor so far, as they had a perfect recollection of the whole. They retired for about a quarter of an hour, at the end of which they returned into court with a verdict of not guilty; and both prisoners were discharged by proclamation.



[1 ] See also Sydney Herald, 8 November 1832; Australian, 23 November 1832.

The law concerning approvers was also in issue in R. v. Hopkins and LongSydney Gazette, 7 August 1834.  The Gazette said that Forbes C.J. ``cited from the text book the law as relating to the admissibility of the evidence of the accomplices, in which it was laid down that where the statement of an approver is corroborated in any material particular by other unimpeached testimony, it may be acted upon; because if it were necessary to have the whole testimony of an accomplice confirmed, there would be no necessity for receiving his evidence at all."

[*] [Note in original:] This is certainly a novel view of the law, ED.

Published by the Division of Law, Macquarie University