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

R. v. Clarke, Goodyear and others [1837] NSWSupC 52

bushranging, highway robbery, approver, evidence of - receiving stolen goods

Supreme Court of New South Wales

Burton J., 9 August 1837

Source: Australian, 11 August 1837[1 ]

Before Mr Justice Burton, and a Civil Jury.

James Clarke, and John Goodyear were indicted for assaulting and putting in fear on the Kings highway, at Deep Creek near Bungadore, on the 24th May last, one Joseph Levi; and stealing from him sundry articles of slop clothing, blankets, &c. his property.  John Kettle was charged with being an accessary before the fact to the said felony, by having at Molonglo, on the 20th May last, invited commanded and hired the said Clarke and Goodyear to commit the said felony.  James Whalan and Michael Jones were indicted as accessaries after the fact, by having received comforted, and maintained the said Clarke and Goodyear, well knowing they had committed the said felony.  And Edward Thorpe, Ann Farrel alias Thorpe, and Henry Clayton were charged with feloniously receiving from the said Clarke and Goodyear, portions of the said property, well knowing them to have been stolen.  The facts of this case rested for proof against the principals, entirely on the evidence of an accomplice named Ryan, one of the men who a few years since was improperly convicted of the murder of Mr. McIntyre; and it appeared from his testimony, that himself and several others among whom was Clarke, had perpetrated various highway robberies, in the neighbourhood of Bungadore, and among them the subject of the present indictment.  The learned Judge did not call upon Goodyear for his defence, there being no case made out against him.  With respect to Clarke, proof of his guilt rested entirely on the evidence of Ryan; and he would at once say, that although it was competent for a Jury to convict upon the unsupported evidence of an approver, he for one would never advise a Jury to do so, especially in a colony like this.  He would instance the case of Ryan himself, who with others were convicted of murder on the unsupported evidence of an avowed accomplice, and ordered to be executed, when it was afterwards discovered that the witness himself was not within one hundred miles of the place, when the deed was committed.  This circumstance occurred immediately upon His Honors arrival in the Colony, and he was so horrified at it, that it made him receive such testimony with great doubt for the future.  Against the other prisoners there were some slight corroborations of Ryans evidence, but by no means of a very strong nature.  His Honor thought  that Whalan and Jones stood more in the light of receivers, than of harbourers and maintainers, if the Jury was satisfied with the evidence, such as it was.  The Jury after an hour's consideration acquitted all the prisoners, who received a suitable admonition from the learned Judge, by telling them, that they owed their escape to that bad man, Ryan's, evidence not being believed.  All the prisoners were discharged, except Clayton against whom there was another information on the files of the Court and he was remanded; and Clarke who was a convict illegally at large, was ordered by the Court to be forwarded to his district to be dealt with on that charge.

Notes

[ 1] This case was also recorded in Burton, Notes of Criminal Cases, vol. 31, State Records of New South Wales, 2/2431, p. 158, Burton noting that the defendants were ``bond", that is, convicts, at the time of the trial.

For other receiving cases, see R. v. Cartwright, Dowling, Select Cases, Vol. 7, State Records of New South Wales, 2/3465, p. 83; Sydney Gazette, 6 February 1836; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2423, vol. 22, p. 168; and see R. v. Monaghan, Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465, p. 81; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2423, vol. 22, p. 126.

Published by the Division of Law, Macquarie University