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

R v Tomlinson, Silk and Falkner [1832] NSWSupC 59

shop lifting - sentencing discretion, doubt about conviction

Supreme Court of New South Wales

Forbes C.J., 3 September 1832

Source: Sydney Herald, 6 September 1832[1 ]


Monday. - The following prisoners had sentence passed upon them this morning by the Chief Justice.

John Tomlinson, John Silk, and Hugh Falkner, were placed at the bar to receive the sentence of the Court for shop lifting.  The Chief Justice observed that this was certainly a case which had not been substantiated very clearly.  The case was one of that description which, if fully proved, he should have thought it his duty to have visited with exemplary punishment.  There were, however, some doubts entertained, whether the case was one of premeditated design, or whether one alone was concerned in it; the property, handkerchiefs five in number, was constructively found in possession of silk.  As to the case of Falkner, several affidavits had been put in, to show there might have been a mistake as to him; but the Court could not admit affidavits after conviction; they would, however, be laid before the proper quarter, for them to say whether a mistake might not have been made as to the identity of one of them.  Under all the circumstances of the case, the Court thought it advisable to pass upon them a lenient sentence, which was, that they should be each worked in irons on the public roads for the space of twelve months.



[1 ] See also Sydney Gazette, 4 September 1832; Australian, 7 September 1832.  For the trial, see Sydney Herald, 3 September 1832; Sydney Gazette, 28 August 1832.

Published by the Division of Law, Macquarie University