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

R v Burn [1833] NSWSupC 34

highway robbery - Bathurst - onus of proof in capital cases - death recorded

Supreme Court of New South Wales

Burton J., 21 May 1833

Source: Sydney Herald, 23 May 1833[1 ]

John Burn was indicted for a highway robbery, in plundering a dray belonging to Mr. Suttor, and putting the driver in bodily fear, at Bathurst, on the 6th November, 1832.

This case was before the Court last sessions, when four parties were convicted chiefly on the evidence of a man Thompson, hut-keeper to the Bathurst Hospital.  The prisoner was now brought to trial on the same evidence.  The robbery of the dray having been clearly proved, the man Thompson swore that the prisoner, in company with the other men, were seen by him in the hut blacking their faces, and that they went away disguised, but whether the prisoner himself was at the robbery he would not swear.

Judge Burton, in putting the case to the Jury, made the following remarks:-  This case involved the life or death of a fellow creature, and required their most serious attention; he did not say that because he thought they did not pay the same attention to every case that came before them, but because it was necessary to scrutinize the evidence of men who were criminals; or who not having been criminals, yet, by mixing with them, might be influenced in their details.  The evidence of one man, by law, was sufficient for a Jury, if they believed it, to convict upon; but when it was the evidence of a man, who came before them tainted, it required a Jury to pause before they would pronounce a verdict that would subject a fellow creature to the forfeiture of his life.  The evidence in this case rested upon the credit they gave to Thompson; if they were satisfied that his statement was corroborated, they would find the prisoner guilty; if they were not satisfied with it, they would pronounce him not guilty; and if they had a doubt upon their minds, they would give the prisoner the benefit of it.  The Jury found the prisoner guilty, and having been called up for judgment, his Honor ordered judgment of death to be recorded against him.



[1 ] See also Australian, 24 May 1833, stating that the trial took place on the non-existent Tuesday 18 May 1833.  The Sydney Gazette frequently mistook dates in this way, and the Australian more rarely.

Published by the Division of Law, Macquarie University