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

R. v. Wood [1838] NSWSupC 9

confession, admissibility of - Australian Agricultural Company

Supreme Court of New South Wales

Dowling C.J., 3 February 1838

Source: Sydney Herald, 5 February, 1838[ 1]

Saturday, Feb. 3rd, - Before the Chief Justice and a Military Jury.

Edward Wood was indicted for breaking into the warehouse of the Australian Agriculture Company at Gloucester, on the 25th October, and stealing therefrom sundry articles.

The Company's store was broken open by three men, who, in company with a fourth man who advised the committal of the robbery, were taken into custody by a constable told him that it would be better for him to tell the truth, upon which Wood confessed to the robbery, and shewed the constable where the property was "planted."  Before the Magistrate at Dungog, Wood confirmed this statement, and the three men Harridan, Lampshaw, and Armstrong, were committed for trial.  The trial came on on Friday before Mr. Justice Willis, when Wood entirely denied the statement he had made.  Upon this the prisoners were acquitted, and the Attorney-General determined upon prosecuting Wood for the robbery.  The statement made to the constable and the magistrate having been proved, his Honor held that if a person makes a confession, in the hopes of being admitted King's evidence, and afterwards refuses to give evidence, whatever confessions or statements he may have made can be taken as evidence against him.  Guilty.[ 2]

 

Dowling C.J., Burton and Willis JJ, 21 February 1838

Source: Sydney Gazette, 27 February 1838[ 3]

 

Edward Wood, convicted of breaking into a warehouse.  The Chief Justice said that through the lenity of the Crown the prisoner had been originally admitted an approver, and as he was a new hand in the Colony had promised not to prosecute him on condition of his giving evidence against his accomplices, which he agreed to do.  On his way through the different gaols however, he had suffered himself to be persuaded out of his resolution and when the trial came on refused to give evidence.  He was then put on his own trial and tried by a Jury who convicted him upon his own confession.  The Judges on consideration of the circumstances of the case as he was a newcomer and had probably been misled by older ad more experienced the thieves, did not consider it a case for exemplary punishment and he was only sentenced to be worked in irons for three years.

 

Notes

[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 146, State Records of New South Wales, 2/3331, p. 31.

[ 2]See also Sydney Gazette, 6 February 1838, which recording the following: ``his Honor would inform the jury, that if no promise were held out, nor any undue influence used to make him confess to the robbery, any statement made by the prisoner could be taken as evidence against him, and it was on his own confession that he now put him on trial".  After the evidence, it recorded the following: ``His Honor told the jury that the prisoner having made certain statements with the hope and intention of turning approver against his accomplices, and having afterwards refused to give evidence against them his former statement could be taken as evidence against himself."

The Australian, 6 February 1838 recorded the following: ``the Chief Justice remarking, that he should consult with his brother judges as to whether the inducement to confess his guilt, held out to the prisoner by Constable Conway, ought to invalidate the confession".

[ 3]See also Sydney Herald, 26 February 1838; Australian, 27 February 1838.

Published by the Division of Law, Macquarie University