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

R. v. Barry [1795] NSWKR 4; [1795] NSWSupC 4


Court of Criminal Judicature

Collins J.A., 20 July 1795

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 1147B[1]

[37] At a Court of Criminal Judicature held by virtue of a Precept, held under the Jand and Seal of William Paterson, Esquire, executing the Office of Governor in His Majesty's Territory of New South Wales and its Dependencies.


New South Wales Corps:

The Judge Advocate

Captain Joseph Foveaux

Captain George Johnston

Lieutenant John Thomas Prentice

Ensign Neil McKellar

Ensign William Pattules

Quarter Master Thomas Laycock

The precept being read and the Court duly sworn:

            James Barry, Labourer, was brought before the Court charged, for that he on the Sixth Day of May, in the year of our Lord one thousand, seven hundred and ninety-five, about the Hour of Seven in the Morning of the same Day with Force and Arms, at the Ponds, in the County of Cumberland, the dwelling House of a Thomas Tilley, Settler, situate, unlawfully did break and enter, with intent, the goods, chattels and moneys in the same Dwelling House, things there being feloniously to steal, take and carry away, against the Peace of our Lord the King, his Crown, and Dignity.

            [38] The prisoner, on his arraignment, pleaded not guilty.

            Thomas Tilley, being duly sworn, deposed that he resides at the Ponds; that, on the morning of the 6th of May, being at a Neighbour's House, his servant came to him, telling him his House had been broken open, and the Prisoner was taken; that he had been taken to one Murray's where he found him. It was the Prisoner. At his House he found one Hole made in the wall, and a Quantity of articles were tied up in a blanket. That his house had been left by himself with the articles in it. They went out at Day light. The Articles tied up, were in the House.

            James Westwood, Labourer, being sworn, deposed that on the 6 of May he lived with one Petit; that having been down at a farm in the neighbourhood, that morning, travelling by Tilley's house he perceived a light in it and looking in through a crack, he saw a man over hauling a box on following him; [39] that on disturbing him, he got away through the wall; that he pursued him to another farm, and soon lost sight of him until he took him. That before he took him he uncapped a pistol at him. He was taken by Murray and another Man, but in this witnesses Pursuance. He made his escape through the hole he got into the house by, no other part by which was injured, the lock being on it, as when the Man left it for work.

            The Prisoner had nothing to say in his Defence.

            Guilty: To receive one thousand lashes on his bare back with a cat of nine tails.


David Collins

Judge Advocate


[1] We are indebted to Clare Jones for transcribing this case record.


Published by the Division of Law, Macquarie University