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

R. v. Godfrey and Asker [1834] NSWSupC 93

stealing, sheep - receiving stolen goods - sentencing discretion - approver, evidence by

Supreme Court of New South Wales

Forbes C.J., 27 August 1834

Source: Sydney Herald, 28 August 1834[ 1]

John Godfrey and James Asker, convicted of receiving stolen sheep, on being put to the bar, and the usual question being put as to what they had to urge, in arrest of judgment, the prisoner Godfrey entered into a long statement pointing out the discrepancies in the evidence of the approver Dalton, and accounting for the circumstance of the sheep found in his flock, and claimed by Mr. Cox, by the probability of his Shepherd's having having lost an equal number of his flock, and anxious to replace them by others rather than pay for them, which he would have to do; he had obtained them in the best manner he could, and having access to his, the prisoner's brand; he had branded them in order to render the substitution complete.  His Honor, after a patient hearing of the prisoner's statement, replied, that he had been tried by a Jury of his country, who, after a patient trial, which occupied the whole of a day, had pronounced him guilty of the offence with which he stood charged: if the witness Dalton had sworn that which was not true, he alone would have to account for his guilt to Almighty God, and there was no doubt, that sooner or later he would be overtaken by a righteous justice.[2 ] His Honour observed, that there had always existed in his mind a deep impression that receivers of stolen property were infinitely more culpable than the thieves themselves, as inciting and holding up temptations to the commission of crime; and if he were to search for a case in illustration of the fact, the case before him furnished the most ample support.  It was, indeed, self-evident that had there been no such person as the prisoner, whose circumstances and general means rendered him capable of evading the suspicion of being concerned in such an offence, the theft would not have been committed, and he would take this opportunity of stating that the executive had come to the determination, to such an extent had the crime of sheep and cattle-stealing been carried, never to admit of the slightest mitigation of the punishment which the law had assigned to the offence, and he hoped that the example of the prisoner, a man possessing numerous flocks of sheep, who had laid the foundation of a Princely fortune, but who had, by his propensity for dishonest practices, swept all away for ever, would deter others from such courses.  His Honour then passed sentence of fourteen years transportation to a Penal Settlement, on both the prisoners.



[1 ]See also Sydney Gazette, 28 August

 On 7 August 1834, Godfrey, Asker and Patrick Aylmer were tried and acquitted of stealing sheep.  Chief Justice Forbes said that the thief appeared to have been Dalton, and that the prisoners at the bar could only have been tried as receivers: Australian, 8 August 1834; Sydney Gazette, 9 August 1834.  They were then remanded to take trial as receivers.  On 9 August 1834, Godfrey and Asker were tried and convicted on the evidence of James Dalton, the approver: Australian, 12 August 1834; Sydney Gazette, 12 August 1834.  Dalton ``being a free man" was later brought before the Supreme Court and discharged by proclamation: Australian, 19 August 1834; and see Sydney Gazette, 19 August 1834.

In deciding where to send those who were sentenced to transportation, Governor Bourke took into account whether the prisoner had previously been a convict: see correspondence with the judges, Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 383.

[2 ] According to the Sydney Gazette, 28 August 1834, Forbes C.J. also said here that even throwing out the consideration of Dalton's evidence, there was still a very strong case of guilt made out against the prisoners.

Published by the Division of Law, Macquarie University