Skip to Content

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

R v Cook and Curry [1826] NSWSupC 70

highway robbery - bushrangers - Parramatta - entrapment

Supreme Court of New South Wales

Forbes C.J., 20 November 1826

Source: Australian, 22 November 1826

 

Thomas Cook and James Curry stood charged with stealing from Benjamin Ratty on the King's highway, certain articles of property, and putting the person in bodily fear.

Mr. James Piesley, jun. stated that on the evening of the 23d of last September he was in the toll-bar house leading out of Parramatta, and heard a number of voices in the Government Domain, immediately opposite - it was then quite dark - he suspected they were bushrangers, and in consequence went to the chief constable in Parramatta, and acquainted him with the circumstance - the latter, accompanied by two constables and witness, determined to lay wait for them on the road that night 0 it was proposed that one of their number should provide himself with a bundle, and pretend to be drunk - in that disguise he should walk along the road side - some other trifling arrangements were preconcerted, and Ratty, one of the party, agreed to personate the traveller - he was provided with a bundle, which he carried in his hand, and the chief constable gave him a pistol - he had not gone very far when witness and the others, who were with him, following Ratty at a short distance - heard Ratty say, "gentlemen, take all I have, but don't ill-use me" - immediately upon this a pistol was discharged - within a few seconds after two other pistols were fired off - the party who had hitherto kept behind Ratty now hurried forward - saw four men surround Ratty - the chief constable desired Wells, an ordinary constable to fire - at that instant witness saw one of the men, who surrounded Ratty, have something in his hand, and apparently about to strike him with it - Ratty fell and cried out, he was shot through the back - from the effects of the wound he died a few days after - three of the men were taken - there were five or six in the whole, but only two were brought into Parramatta - another one was wounded, and lay on the ground, apparently dead - whilst the party were employed in a running pursuit after two men who were making off, this man got away.

The chief constable's evidence was much to the same tenor.

The Chief Justice summed up.  The offence with which the prisoner stood charged was one wherein all the particulars necessary to constitute it a highway robbery should be complete.  There must, of necessity, be an actual stealing from the person, accompanied with fear and against the will.  His Honor quoted the case, known in the books by Bolton's case, argued and decided upon.  The master learning from a servant that there was an intention to rob his place, ordered his servant to become a party to the robbers and facilitate their plans.  The thieves entered, broke open locks and doors, and committed other acts of violence.  They took away with them some plate and monies which had been purposely placed there and were marked, and then the thieves were secured by the officers.  A question was raised before the Judges whether robbery, in such a case, was taking away goods, &c. against the will of the owner, he having assented to it.  The Court held that all the owner gave assent to was so much as to bring the parties to light - but in the present case there was no actual stealing or carrying away.  The least removal was sufficient to establish the case.  But it appeared from the deceased constable's evidence that the men called out to him to drop the bundle, and he instantly threw it towards the person who addressed him - the latter was in the act of stooping to pick it up when he fired at him, and the man fell before he had actually come in contact in any way with the bundle - the question therefore for the Jury to decide upon was one of an important nature, and one which was rendered indispensibly necessary to support the information, whether the bundle was at all removed, or whether it was touched, and being removed from the spot where it was thrown, when the man so stooping was shot at.  Verdict - Not Guilty.[1 ]

 

Notes

[1 ] Cook and Curry were subsequently acquitted of shooting at Ratty: Australian, 2 December 1826; Sydney Gazette, 2 December 1826.

 

Published by the Division of Law, Macquarie University