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

R v Johnson and Nimmo (1830) NSW Sel Cas (Dowling) 333; [1830] NSWSupC 64

receiving stolen goods

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 11 September 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466

[p.28]

To constitute a receiver of stolen goods the party must have either actual possession or direct control over the goods [p. 29] therefore where a Thief was in treaty with another person for the disposal of stolen goods but had never parted with manual possession though in the house and in the presence of the alleged receiver:  Held that an indictment and conviction for receiving could not be supported.

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 47, Archives Office of New South Wales, 2/3230

 

[p. 158]

In Banco.

Coram

Forbes CJ

Stephen CJ

Dowling J

The prisoner F. Johnson was indicted for stealing two saddles, on the 3d August 1830 last & Lindsay Nimmo was indicted for receiving & having the same saddles knowing them to have been stolen.  At the trial before Forbes C.J the prisoner Johnson pleaded guilty, & the other prisoner was found [p. 159] guilty, but the Judge reserved the case for the consideration of the whole Court.

The facts of the case respecting the Receiver were, in substance these: - Johnson, who was a private soldier, was indebted to Nimmo a housekeeper in Sydney.  Johnson having stolen the saddles took them to Nimmo's house but never parted with the possession of them.  A constable disguised as a settler, went to the house, & saw Johnson & Nimmo there.  He had a dealing with Johnson for them in Nimmo's presence, who putting his hand upon of the saddles, said ``You have got a good bargain this morning." [p. 160] This was the only proof of possession, & this was in the presence of the principal felon.  The deft Nimmo seemed anxious to putt off the saddle, but there was no actual possession in him beyond the saddles being in his house in the presence of Johnson.  The Judge left the case to the Jury to say whether the prisoner did ``receive & have" telling them that if he merely aided the principal felon in selling the saddles without having an actual possession independent of the thief then he was not guilty.  The Jury found the prisoner guilty.

S. Stephen & Therry now moved to have the conviction quashed.

Forbes C. J. & Stephn J that [p. 161] the conviction could not be sustained.

Dowling J.  As it appears from the facts reported by the learned Judge that the thief had not parted with the possession, or control over the property, & as there was no dominion exercised by Nimmo over the property inconsiderate with the possession & dominion of the thief, I think this conviction is wrong in point of law & the Jury upon the facts ought to have acquitted the prisoner.  The need not in all such cases be an actual manual possession to constitute a man a receiver of stolen property, provided he has a control over it independently of the thief. [p. 162] To constitute a receiver I apprehend, the party must exercise or have the power of exercising a dominion over the property.  Here Johnson had not parted with the property, or left it under Nimmo's exclusive control.  I therefore think this man entitled to a pardon, & must be recommended to the Crown accordingly.

Nimmo was discharged on his own recognition in the sum of 10 £ and Johnson was sentenced to be trans. to a penal settlement for 7 yrs.

Published by the Division of Law, Macquarie University