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

R. v. Scott

stealing , criminal, procedure, duplicity

Supreme Court of New South Wales, Port Phillip

Willis J., 18 June 1841

Source: Port Phillip Patriot, 20 June 1841

Charles Scott, late of Geelong, labourer, was indicted for killing a sheep, the property of William Roadnight, with intent to steal the carcass. A second count charged the prisoner with stealing a dead sheep, value one pound, at Geelong, on the 10 th of April, 1841.

Messrs. Brewster and Barry defended the prisoner.

Mr. Barry, after the jury had been charged, objected to the information. The learned gentleman observed, in the absence of his leader, Mr. Brewster, he would respectfully submit to his Honor that the Crown Prosecutor in this case be put to his election, there being two specific charges mentioned in the information requiring different modes of proof, and it being laid down that in an indictment for felony, which actually embraces charges of offences essentially distinct, the Court would in its discretion quash the indictment altogether, or, if such joinder is only discovered after the jury is charged, will compel the Crown Prosecutor to elect upon which charge he will proceed upon. The learned gentleman then read the law of the case in support of his argument.

The Crown Prosecutor replied that the first count was laid under the statute of the 7 th & 8 th , Geo. IV., but the second count was at common law: if his Honor considered he was bound under the circumstances to make his election, he would try the prisoner on the last count.

Judge Willis.---I think you must make your election, and in my opinion you have made the proper election to try the prisoner, as much difficulty would be found in proving the first count to the information.

The case then proceeded.---From the evidence of the prosecutor, it appeared that he was a very extensive sheep holder, and that he kept a small flock of sheep for the use of his establishment on the 6 th April last, in consequence of information he received, he went towards Tilly's paddock, where the sheep were usually kept, when close to a hut, near the stone-quarry, he met the prisoner with a sheep upon his shoulders, assisted by a man named Boucher; the sheep had been bitten on the thigh by a dog, and was then fresh stuck, bleeding and warm; prosecutor asked prisoner what he was going to do with the sheep; he replied, "that he was going to take it home, as he had found it dead;" this was about eleven o'clock in the forenoon; prosecutor could positively swear to the sheep, by its bearing his brand and he had no doubt as to the prisoner's identity; the prisoner on being taxed with stealing the sheep, put it down, and left it; the prosecutor immediately proceeded to the police-office at Geelong, obtained a warrant and the prisoner was apprehended.

This was the case for the prosecution.

Mr. Brewster addressed the jury for the prisoners, and attempted to throw discredit on the prosecutor's testimony, in support of which he would put in the deposition taken at Geelong, in support of his observations.

Lieutenant Addis, R.N. one of the magistrates before whom the depositions were taken, proved the signature of the prosecutor to them; they were then read by the Deputy-Registrar, and strictly corroborated the present testimony of the wetness.

Judge Willis.---Mr. Brewster, where is the contradiction in the prosecutor's depositions taken at Geelong, and in his evidence here to-day; counsel must not make such assertions against witnesses be they who they may, without proving them; and I now call upon you to prove your assertion, that the prosecutor's evidence is not worthy of credit. The depositions completely bear out the evidence he has given here to-day, and your observations must have their effect on the jury.

Mr. Brewster attempted to make some observation in reply.

Judge Willis---Mr. Brewster, are you to have the control of this court or am I? because if so my attendance here will be useless.

On the part of the prisoner an alibi was attempted to be set up, and two witnesses were called, named Thomas Spyers and Cornelius M'Mahon, to support the defence. Their testimony was of such a prevaricating nature that the attempt was a complete failure.

His Honor summed up the case, and the jury without the least hesitation found the prisoner guilty.

The prisoner was then brought up for judgment. His honor, in passing sentence, said, the alibi attempted to be set up as a defence had very properly failed. It was very fortunate for the prisoner that the first count had been abandoned. The stealing the carcass of a dead sheep was an offence very easily committed in this country, and in order to put down this offence, if possible, he should pass upon him the extreme sentence the law awarded, which was that he be transported for seven years.

The two witnesses, Spyers and M'Mahon, were, on the motion of the Crown Prosecutor, brought up before the Court for gross prevarication, and, after being severely reprimanded by the learned judge for false swearing, were sentenced to three months imprisonment in Her Majesty's gaol at Melbourne.

His Honor observed that he was of opinion Mr. Roadnight left the court without the slightest impeachment on his truth, honour, or integrity; and he knew nothing of him before he came into court.

Published by the Division of Law, Macquarie University