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

R. v. Clensey and others [1820] NSWKR 9; [1820] NSWSupC 9

stealing in dwelling house - murder, intent - capital punishment

Court of Criminal Jurisdiction
Wylde J.A., 29  November 1820
Source: Sydney Gazette, 2 December 1820[1]

           James Clensey, James Wall, and Nicholas Cook, were indicted for forcibly and feloniously  entering the farmhouse of James Saville, within a mile of Parramatta, on the Windsor side, and after committing many violent outrages, stealing sundry articles therefrom.

           Benjamin Ratty, a constable, deposed, that seeing the three prisoners passing through the town after eight at night, he hailed them, but instead of stopping, they answered civilly, yet did not stop: they were advanced upon, and refusing to stop, assaulted the constables with stones, one of which wounded Dillon, another constable, severely on the face, and knocked him down.

           More aid was quickly obtained, and Cook was taken after a vigorous resistance.  Wall ran towards Mrs Reid's fence, and he was likewise apprehended.  A shawl, now produced, was found close to the spot where they were first challenged, with a mask close to it, formed of a part of a blanket, with three holes in it for the eyes and nostrils.

           Edward Dillon deposed to his having joined in their pursuit.  He saw the men run towards the Court house, and saw one raise his hand, as if he had thrown something over the palisade. Cook, deponent stated to be the man who had struck him with a stone on the face.  He and Wall were taken to the watch-house, and some silver was taken from Cook.  They were all close to Mrs Reid's fence when accosted.  Witness produced a stone, broke into 3 pieces by the violence it had been thrown with, which was polished, and rounded with a bead; and was evidently a fragment of the 17 mile stone, which is broke into small pieces, and lies between Parramatta and the house robbed.  The deponent had ascertained the morning after, that the three prisoners belonged to Farris's gang, employed on the Sydney Road, 8 miles from Parramatta.  Deponent was sensible this was the stone thrown by Cook, as he had picked it up immediately after.

           Edward White, constable, deposed, that he saw Wall and Cook at the watch-house, where half a pound of soap was taken out of Cook's pocket; also, five dumps, one half crown, and 2s. in copper coins; and a quarter dollar.

           Maxwell, a constable at Fairhurst's gang, at Longbottom, eight miles from Sydney, to which the three prisoners belonged, but were absent from one o'clock on the day he named, being Sunday, and when not returned to the eight o'clock muster at night.  At seven in the morning he saw Clensey, who in consequence of the Parramatta information was apprehended, when he immediately enquired what had become of Wall. [Note.  From this enquiry after Wall, the idea that struck many of the authority was, that as Cook was the first taken, he was already acquitted with what had become of him, and therefore confined his enquiry to Wall, of whose fate he was uncertain]

           G Fairhurst, overseer at Longbottom, deposed to the same effect; and particularly to Clensey's enquiry after Wall.

William Seville deposed. He is a farmer a mile out of Parramatta.  Upon that evening three men rushed into his house after twilight. Lucy Rainer and her child were with him, a boy between 7 and 8. As soon as they rushed in they said they were bush-rangers and wanted food.  They were disguised with such masks of blanket as were now shewn to him.  Their persons he described, and the description barely corresponded with the persons of the prisoners at the bar.  They had bludgeoned, one of which was pushed violently into deponent's face, with menaces and a command to silence.  Two of them forced deponent and the woman into the bedroom.  The child was worse treated by the third, who unfeelingly dashed his little scrap out of his hand, and then inhumanely threw the little unoffending creature on the fire, which, had it been a cold month, and burning fiercely, must have burnt him to death; but it had been happily marked September in the Calendar of Fate, and the fire was sufficiently low to permit the little otherwise devoted innocent to crawl off with very little hurt; yet trembling beneath the dreadful menaces of the miscreant, still threatening to cut his throat, as soon as he should extricate himself from the scorching embers.  The same man broke open two boxes, one having been broken open before, and took out a shawl, the property of one at Mary Bartman; he then searched the woman's pockets present, and took her money, 5 dumps a quarter of a dollar, one half crown, and some copper coin.  Having effected their purpose, and eat and drank in the house, they went away, taking with them the fragments; ordered them to shut up the house and go to bed: but had scarcely quitted the door, when one proposed to go back and murder them; which horrible proposition was opposed by a second, who exclaimed " O no, we'll do no murder."

           Lucy Wain, the woman in the house when the robbery took place, deposed to the money being taken out of her pocket.

           Mary Hartman deposed to the shawl being taken out of her box, at Seville's, on the night of the robbery.

           The little boy was desired by the Court to be brought forward.  Mr Beale, keeper of the Parramatta gaol, had recounted surprising instances of the recollection this child had of two of the robbers, whom he had secreted repeatedly from among a number, notwithstanding many a change of position.  The child was desired to point out the person who had treated him violently, and he unhesitatingly pointed at Clensey , as he had always persisted in doing, with innocent confidence.

           His Honor the Judge Advocate summed up the evidence, and dwelt with much energy upon the facts that chiefly militated against the prisoners at the bar.

           Three masks of old blankets found where the prisoners were first challenged had been produced in Court, and were the same as those worn by the robbers; the stone with which the prisoner Cook had wounded Dillon the constable, was proved to be a fragment of the backen mile stone; the shawl that had been beyond doubt cast away by one of the persons was sworn to by Mary Hartman; the money was of the same amount and description as that taken out of the pocket of Lucy Wade, and three prisoners at the bar left their gang together on Sunday noon, and were the only persons absent from it all night; two were taken nearly upon the spot; and Clensey and another had been selected repeatedly from a number by an innocent child who had had frequent opportunities of seeing part of their faces, not withstanding their loose disguise, before he was acquainted with any of the foregoing circumstances relative to them; and yet one of the prisoners, Clensey, had brought in a man, his brother, to swear he was elsewhere; but his voluntary testimony perished in the early stage of his examination.

           The competency of John Wain (the little boy) to be made an evidence was a question of consideration to the Court, who would have discerned at whether there was sufficient reason in the child to remember and to relate what he had seen and experienced: he did not appear to have been daunted; and he was unacquainted with deeds of cruelty, and was fearless of that of which he had as yet formed no conception; and on account of his youth the robbers were perhaps heedless of his looking at them.  The causes that had induced so young a child, bound to humanity by all the tender ties of natural affection, so strenuously to persist in this declaration, rested with God: - his competency he as an evidence remained with the Court. His Honor could not help adverting to and contrast in the expressions the two persons who had disagreed on the horrible proposition of returning to murder all the people they had robbed.  God, he fervently hoped, would look down with compassion upon the errors of him, who in the midst of crime, had still shewn that he was not dispossessed of the common feelings of humanity. - His Honor having concluded this impressive retrospect of evidence, the Court without retiring returned a verdict - All Guilty.

Sydney Gazette, 23 December 1820

Executions .. on Friday  [22 December 1820] ....

           [F]or the robbery of a house near Parramatta, and highway robbery, James Clency, ... and Nicholas Cook.

Note

[1] See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ792, p. 105 (no. 4).

Published by the Division of Law, Macquarie University