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

R v McCabe [1833] NSWSupC 106

convict evidence

Supreme Court of New South Wales

Burton J., 21 November 1833

Source: Australian, 22 November 1833[ 1]

That important question, the admissibility of convicts attaint to give evidence, has been formally brought under the consideration of Judge Burton.  On the trial of McCabe yesterday in the Supreme Court, for forgery, a man named Harris was tendered on the part of the prosecution.  Mr. Keith objected to him, on the ground of his being a convict attaint, under a commuted sentence of transportation for life.  Mr. Justice Burton said, that his legal opinion was, that such testimony was inadmissible.  But he was aware that his question had already been brought before the Court and decided; that, therefore, the decision given by the Judges collectively, was binding, on his private opinion; that he had entertained this view of the case on his arrival in the Colony, but shortly after, having some doubts on a very important trial, the King v. McIntyre, he requested to sec [sic] the notes, and grounds of argument, of his brother Judges; that he thought the arguments of the Chief Justice unanswcrable, [sic] in which he perfectly coincided, and indeed went further; that as to the doctrine of expediency, it cut two ways; that if the testimony of such persons were indispensible, it might also lead a man who should be put in the witness box, with his chains around him, to say any thing to get them off.  That if the Crown wished to bring a man, suffering under sentence, forward as a witness, it was quite competent to the Crown to grant him a legal pardon, and thereby remove the objections to his testimony, and relieve him from those considerations which would otherwise be likely to weigh with him.  He repeated, therefore, that in his opinion, the law of the Colony was against receiving such testimony; but as the Judges had entertained a contrary opinion, he must act upon it until it should be reversed by competent authority, or some legislative enactment made upon the subject.  He would, however, take a note of the objection, and bring it again under the consideration of his brother Judges.

After the opinion thus judiciously expressed by the learned Judge, what is to prevent the case of Woodward, Dingle, and Farrell being reported upon, and justice administered.  Setting every thing like humanity or compassion aside, we say that justice demands an examination of their case, and that speedily.  The laws should be as prompt to redress wrong, as to punish guilt - and if those in whose hands this sacred administration is deposited, should erringly misapply them, let them not go on it error, but hasten to raise up those whom they have unjustly cast down.  We repeat therefore that justice that sublime and comprehensive principle on which all governments are formed (or ought to be) and all laws made, being in favor of the men alluded to, we hope it will no longer be withheld from them.



[1 ] The Sydney Herald and Sydney Gazette did not report this trial. The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2409, vol. 6, p. 189.  See also R. v. Farrell, Dingle and Woodward, 1831.

In R. v. Kennedy, Sydney Gazette, 14 August 1832, Dowling J. said that in a very memorable case the Court held that prisoners under sentence for felony could give evidence "for as much as it might be worth".

Published by the Division of Law, Macquarie University