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

R. v. Kinsela and Chamberlain [1820] NSWKR 16; [1820] NSWSupC 16

highway robbery - assault, threat to injure with a weapon

Court of Criminal Jurisdiction
Wylde J.A., 29 November 1820
Source: Sydney Gazette, 9 December 1820

           John Kinsela and James Chamberlain, were indicted on two charges; namely, with having stopped and robbed upon the King's highway, John Watkins, a constable, of a pistol; and secondly, with having presented the same at the constables who had afterwards endeavoured to retake them, with threats to fire if they persisted in the attempt. The prisoners were fugitives from Newcastle; and found shelter and concealment out and about the estate of a Gentleman at Castlereagh, of which information was sent to the Magistrates of Parramatta, by whom constables were sent out and they were apprehended; they were handcuffed together, and delivered into the charge of the prosecutor Watkins to be conducted into Parramatta; but one of them managing to extricate himself from the hand-cuff they both determinately demanded the pistol, which being given up, they threatened the life of the prosecutor, should he attempt to impede their escape, telling him that they would leave a pistol for him at a place they described near the toll-gate, where he would find it by nine at night. The prosecutor went accordingly, but it had not been left as promised to be. The next day three armed constables went in pursuit of them; and they were discovered in the bush by the smoke from their fire, and one of these pursuers deposed in evidence, that he had known the voice of Kinsela as they approached; and seeing him, unperceived, with a pistol in his hand, he levelled his piece and fired at him, the contents lodging in his arm, whereupon he and his companions were both secured, and the pistol found loaded upon the half cock. The unhappy man, Kinsela, had since endured seven or eight weeks of dreadful torture, and his emaciated age and apparent state of suffering at the bar, excited much of the commiseration of the auditory.

           His Honor the Judge Advocate examined the witness in the strictest terms on the motives that had induced him to fire on the prisoner before he had challenged him, and commanded him to yield himself up: to which he replied, that having himself been at Newcastle in an inferior capacity at a time when the wounded man was, he had an opportunity of ascertaining his character to be desperate, and his agility great; and that he was at the instant convinced that there was no means of securing him while he was armed, without imminent danger of their own lives.

           The evidence for the prosecution being closed, the prisoners were left to their defence; in which they varied considerably from the statements exhibited against them. They denied the taking of the pistol from the witness John Watkins, by force, or that they had presented the pistol at any body; but averred that it had been given up to them on their request, and that they had shook hands at parting; Kinsela also supplicating mercy from the Court on account of his long protracted and extreme bodily suffering.

           The defence concluding, His Honor summed up the evidence, and expatiated at length upon the leading facts, submitted the ultimate question to the consideration of the Court; who returned a verdict pronouncing the prisoners Guilty upon both charges.

Published by the Division of Law, Macquarie University