[crime suppression society - Bathurst - stealing, sheep - evidence, hostile witness - criminal procedure, calling witnesses]

R. v. Halloran and Waldron

Supreme Court of New South Wales

Forbes C.J., 5 August 1834

Source: Sydney Gazette, 7 August 1834[1]

(Before the Chief Justice and a Jury of Civil Inhabitants.)

John Halloran and Patrick Waldron, were indicted for stealing at Stoney Creek, near Bathurst, on the 10th June last, 50 ewes, 50 lambs, and 50 sheep, the property of Captain Piper; and William Hopkins, William Long, and Richard Sutton, stood charged with feloniously receiving the same, well knowing them to have been stolen.  Dr. Wardell, who with Mr. Wentworth, was retained to conduct the prosecution at the instance of the Bathurst Association for the suppression of Cattle stealing, stated the case to the jury.  Counsel for the prisoners Halloran and Waldreon, Messrs. Sydney Stephen, and T.D. Rowe; the others were undefended.  An application was made to the court on the part of the prisoner Waldron, to postpone the trial, on the ground that two material witnesses in his behalf, for whose attendance two subpoenas had been duly issued out of the office of the Supreme Court, were not in attendance.  It seemed that Waldron, on being warned for trial, gave into the office of the Crown Solicitor, the names of two persons who he required in his defence, and subpoenas were forwarded to the Bench of Magistrates to be served on them.  One of the parties, who was represented as being an assigned servant[2] on the estate of Colonel Wall, refused to give his attendance unless his expences [sic] were paid, and the other from some cause which did not appear, had not been served with the process, although he was personally known by the chief constable of the district.  The court did not think there were sufficient grounds shewn for postponing the trial; the crown had done all that was required of it by usage, in forwarding the subpoenas for the witnesses, and it could not enforce their attendance or pay their expences [sic].  The case then proceeded, and was in substance as follows: - The prisoners Halloran and Waldron, tended a flock of sheep in the neighbourhood of Bathurst, said to belong to the former.  Sometime in the commencement of the present year, the neighbouring flock of Captain Piper was plundered of nearly a hundred maiden ewes, which Halloran and Waldron were stated to have brought to the station of Captain Wall, at Mary's Lane in the same vicinity, and exchanged for a similar number of Colonel Wall's sheep, with the connivance of that gentleman's servants, the prisoners Hopkins, Long, and Sutton, who received one shilling per head for effecting the exchange.  From this complicated larceny, the prisoners stood charged with two distinct felonies, merely exchanging their relative situations as principals and accessaries.  Proof of the case rested mainly on the evidence of Jasper Miles, another assigned servant of Colonel Wall's, who in the month of February, overheard a conversation between the prisoners, respecting an exchange of sheep, and in May following was told by the prisoner Hopkins, the particulars of that exchange.  Miles was at this time in charge of one of Colonel Wall's flocks, and it was from the circumstance of his observing a very considerable number of cropt-eared sheep (a customary mark of disfiguration) among them, added to his suspicions of the conversation he had previously heard among the prisoners, that he questioned Hopkins on the subject, and was made acquainted with the manner in which they came into the flock.  The witness Miles deposed, that the conversation between the prisoners to which he alluded, was conducted in so low a tone of voice as to be scarcely audible, and that he could only hear that they spoke on the subject of an exchange of sheep, without being able to distinguish the precise nature of the bargain; and on being repeatedly questioned as to whether he had not sworn differently on the subject on a previous occasion, and whether he had not before sworn to a distinct conversation between the parties at that time; he denied it most positively, upon which the learned counsel for the prosecution handed up for the information of the court, three several depositions made by the witness before the Bathurst Bench of Magistrates, and upon the apparent variation between them, and the evidence now given, claimed the privilege of treating Miles as an adverse witness.  He, however, persisted in his statement, and after the case (which took up the whole of the day) had been gone through, the jury viewing his as discreditable testimony, acquitted all the prisoners.[3]

Notes

[1] See also Australian, 8 August 1834.

[2] Convict, assigned to work for a private person.

[3] The Australian, 8 August 1834, notes that the prisoners were then ``remanded to take their trial for a similar offence."