[stealing - felony attaint - convict evidence]

R. v. Watts

Supreme Court of Van Diemen's Land

Pedder C.J., 6 May 1834

Source: Colonist, 13 May 1834[1]

Edward Watts, charged with feloniously stealing a silk handkerchief in the street, some evening, from a sailor, who was being conveyed to the watch-house by the constables. In this case, the evidence of the constable, who apprehended the prisoner on the same evening the robbery had been committed, was only one which affected him. Upon which His Honor observed to the Jury, that the Law of England did not allow the evidence of persons under conviction, but the law stood necessarily different in this Colony, where such persons were rendered qualified by Act of Parliament; yet his Honor observed, that the evidence of a single convict, even as the law purported in this Colony, ought to be received with extreme caution, unless corroborated by some very strong circumstances. This did not appear to be the case at present and the constable might very probably have been actuated by some vindictive motives, as the prisoner had previously refused to aid and assist in securing the drunken sailor, when requested so to do. His Honor thought the prisoner entitled to an acquittal.

The Jury, however, brought back a verdict of Guilty.

His Honor then addressed the prisoner, stating that he had avoided prejudicing the minds of the Jury, by referring to his former character and career, which had been idle and abandoned, and he would take care that for some time to come at least, he should have no opportunity of spending his time amongst prostitutes and debauchery. Sentence 7 years transportation.

6 May 1834

Source: Colonial Times, 13 May 1834

            Edward Watts was charged with stealing, on the 8th April, one handkerchief, value 2s., the property of John Campbell.

            Only two witnesses were examined in this case - the prosecutor and a constable. The prosecutor proved the identity of the handkerchief, and the constable proved the taking it from between the prisoner’s hands.

            His Honor then addressed the Jury, and, in the course of his address, made some very important observations, relative to the admissibility of certain descriptions of evidence. The principal evidence in this case was that of a prisoner constable, whom the law of England would not recognize as evidence at all, but in this Colony we were compelled to do so, yet it was the duty of the prosecutors to bring forward all the evidence corroborative of such as might be in their power. In this case another constable might have been produced, who would probably have supported the testimony of the witness they had heard; and, on the contrary, it is possible that his evidence might have been altogether negatived by the testimony of the other constable. It appeared too that the prisoner had given the constable some cause of offence, in not assisting him, when called upon, to apprehend a drunken man; and, therefore, it was very easy for the constable to have got up this case, for the purpose of ruining the prisoner. The prosecutor clearly knew little or nothing of the matter - indeed, he had considerable difficulty in identifying his property a t all; under these circumstances he thought it behoved the Jury to be cautious in coming to a conclusion.

            Verdict - Guilty. Sentenced to be transported for seven years.

Notes

[1] See also Hobart Town Courier, 9 May 1834. In the New South Wales Supreme Court, there were many decisions on the question of convict evidence, the most important of which were R. v. Gardener and Yems, 1829; and R. v. Farrell, Dingle and Woodward, 1831.