R. v. Wood

Supreme Court of Van Diemen's Land
Pedder C.J., 13 June 1828
Source: Tasmanian, 20 June 1828

John Wood was indicted for receiving 120lbs. of flour value 12s. and a bag value 2s. the goods and chattels of Mr. H. Morrisbey knowing them to be stolen; there was a second count charging him with having stolen the property. The Solicitor General conducted the prosecution, and Mr. Gellibrand and Mr. Rowlands the defence.
Before going into evidence, Mr Gellibrand moved that all witnesses should be ordered out of court, to which the Solicitor General immediately acquiesced, intimating that he understood there would be some hard swearing in the case on both sides.
The record of the conviction of Thomas Anglim for stealing the 120lbs. of flour, was given in evidence, and several witnesses called, one of whom however proved that it was 120lbs. meal. Here the case seemed nearly closed, but it was reserved for the consideration of the Jury, whether the indictment was correct in describing the article in question. A man named Painter swore, that he saw Anglim put the bag into his (Anglim's) cart, and that no person was near; the next witness swore that he saw Anglim lift the sack, but he believed him to have been assisted by another person. Ann Smith, (who had cohabited with Anglim) swore, that Wood brought the bag containing the flour to her house, on the evening of the 13th September and took it away on the 14th September as being his property, and that it was never opened while in her house; Joseph Barry was called to prove that Wood employed him to carry the flour, but he said he believed it was Anglim who employed him, although it was otherwise stated in his deposition before the Magistrates. The Judge said, that after such conduct on the part of the witness he should not permit that freedom of cross-examination for the defence as he otherwise would have done. Mr. Gellibrand rose and said that after the observation just made by the Court, he should not cross-examine the witness at all. A man named Kennedy was called to corroborate Ann Smith's evidence, upon which he refined, stating that the bag was opened, and he had tasted the flour, which was fine bright flour and not meal. On cross-examination it appeared that he had sued the prisoner in the Court of Requests for wages, and had been defeated. Two witnesses were called for the defence, and the Jury retired at half past five o'clock; in the course of half an hour they intimated to the Court that they were not likely to agree, between seven and eight the Court received further intimation to the same effect. The Chief Justice retired to his house; the Jury remained locked up till ten o'clock Saturday morning, when they came into Court, and stated through their foreman, that they could not nor were ever likely to agree. Six of them had agreed on Friday evening, and there was only one who held out.[1] The Judge said he was sorry, but could not discharge them; the Counsel were in attendance on Saturday until near 3 o'clock, when the Jury returned a verdict. Not Guilty.

Notes

[1] At this time, criminal trials in the Supreme Court of Van Diemen's Land were held before a panel of seven military and naval officers. See (1823) 4 Geo. 4 c. 96, s. 4.