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

R v. Squires and McCourt, 1837

evidence, affirmation - oath of witness - stealing from dwelling house

Supreme Court of New South Wales

Dowling A.C.J., 3 November 1837

Source: Sydney Herald, 6 November 1837[ 1]

John Squires and John McCourt were indicted for stealing sundry articles from the dwelling-house of Samuel Terry, at Brickley Park, on the 10th August, 1836, one Thomas Windsor being therein put in bodily fear.

Thomas Windsor, a young man twenty-one years of age, stated, that he was taking care of a hut belonging to one of Mr. Terry's sheep stations, when it was entered by three men, who tied him to a post in the hut, and rifled it of a considerable quantity of property.

In cross-examination, this witness said that he had never been inside of a church; had never heard nor said a pray; and did not know the nature of an oath.  Under these circumstances, His Honor could not take his evidence, and the prisoners were acquitted.

 

Notes

[1 ] See also Australian, 7 November 1837; Sydney Gazette, 7 November 1837; Dowling, Proceedings of the Supreme Court, Vol. 144, State Records of New South Wales, 2/3329, p. 68.

The three judges of the Supreme Court (Dowling C.J., Burton and Willis JJ) wrote to Governor Gipps on 29 May 1838, arguing that the statute 54 Geo. 3 c. 15 (as continued by 5 & 6 Wm 4 c. 62) should be repealed or modified.  It provided for evidence to be taken in England over New South Wales debt recovery cases.  The judges were concerned both with evidence on affirmation and with the impossibility of cross-examination.  Their strongest sentence was ``The substitution of a mere declaration for an affidavit by statute 5 & 6 Wm 4 c 62 we consider so great an innovation upon the fundamental principles of law as to induce us most strenuously to urge its repeal". (Source: Chief Justice's Letter Book 1836-1843, State Records of New South Wales, 4/6652, pp 75-78.)

Published by the Division of Law, Macquarie University