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

R v Mustin and Brown [1826] NSWSupC 63

burglary - bushrangers - criminal procedure - indictments - capital punishment at place of crime - capital punishment, public - capital punishment, gibbet - Burwood - Parramatta

Supreme Court of New South Wales

Forbes C.J., 4 October 1826

Source: Australian, 7 October 1826

 

Thomas Mustin and John Brown were capitally indicted for entering the dwelling-house of Richard Morgan.[1 ]

Ann Morgan - lives on the Liverpool-road; towards dusk, on the 26th August, the prisoners at the bar entered the house, and proceeded to search the bed.  Mustin took up a gun which was loaded, and having examined it, expressed himself to be equal to half a dozen constables.  They then went to a box which they unlatched and emptied its contents on the floor.  The prisoners selected some articles of wearing apparel a quantity of tea and sugar, a boiling pot, some bread, and the greater part of a cask of salted provisions.  Witness begged of Brown to leave her a little tea and sugar; the latter complied, and emptied a small quantity from the bags.  He then remarked to witness that her face was known to him, and enquired her name, which she told him; he said he thought he was right.  Muston took a pair of boots from the feet of the old man, who is between 70 and 80 years of age.  The two men then went away, carrying the property with them.  Witness despatched the old man and the boy the next morning to Liverpool, to report the circumstance of the robbery to the chief constable.  A fortnight after witness was sent for to the police office.  On being questioned by the Magistrates, she stated to them that one of the men who robbed her was named Brown.  Afterwards saw the latter at the Police Office, Sydney, when she immediately identified him, as also Muston.

Richard Morgan, is the husband of last witness, was absent from home on the night of the 20th August last.  Recollects the date.  He returned from Sydney on the same night, when it was immediately told him by his family, the loss they had sustained during his absence; his wife said, Brown, formerly employed as a constable in the district of Liverpool, was one of the robbers.  The gun and iron now produced are witness's property.

Francis O'Meara, deposed, that by order of the Superintendent of Police, he and a posse of constables proceeded in quest of bushrangers to Burwood.  At day break on the morning of the 25th September, he descried [sic] two men lying apparently asleep; he, with his party, hastened to the spot, and secured them.  Witness found a musket which was loaded, within a few roods from where the prisoner Muston was lying, as also an iron pot, the same as that produced.

The prisoners being called on for their defence, Brown attempted to prove an alibi, by alledging that he was in confinement in Sydney gaol on the 26th August last, the day on which he stood charged with perpetrating the robbery.  The other prisoner was silent.

The Chief Justice charged the Jury.  Although there might be a mistake in the indictment, in laying the robbery as committed on the 26th of August, whereas it appeared that it did really occur on the 20th of that month, the prisoners could derive no benefit from such an error.  Respecting that part of the information which charged the prisoners with putting in bodily fear, though this effect did not appear to have been exactly produced, yet the manner of their entering the house, possessing themselves of a loaded musket, and having for their object plunder and devastation, were sufficient in themselves to amount to legal fear, and as such would come with the acceptation of the law.  The point simply for the consideration of the Jury was whether the prisoners had been sufficiently identified - very clear and positive testimony had been given on this head; and his honor was impressed with an idea that the witnesses were not mistaken.

Both prisoners were pronounced guilty.[2 ]

 

 

Source: Monitor, 20 October 1826[3 ]

 

It is our painful duty to record the execution of eight unfortunate malefactors, whose repeated violations of the laws of their country, thus terminated in a violent and ignominious death.  A general order was issued on Saturday last, affixing the respective places of execution on three successive days.  On Monday morning Mustin, Watkins, and Brown, convicted of divers atrocities committed in the vicinity of Burwood and the Liverpool-road, proceeded to the former place, there to pay the forfeit of their lives.  Craven and Cavanagh for like offences, were ordered to die at the Western Road Gate, Parramatta, on the same day.  At six o'clock a regular cavalcade was formed in front of the gaol.  Two carts were in readiness to convey the culprits to the place of execution.  Mustin was brought out first; he appeared firm and cheerful, ascended the cart with alacrity, and then assisted his companions, who all shewed a determined demeanour.  Cavanagh and Craven rode by themselves.  They on the contrary seemed immersed in sorrow, shedding tears nearly the whole way.  Craven appeared to be not more than twenty, the others were in the prime of life.  They were all dressed in white, and wore caps ornamented with black ribbon.  The pious and unwearied assiduities of the Rev. Mr Therry, were continued to the last moment; he rode in the cart with Mustin.  A subordinate functionary of the Romish church, followed in the second cart.  One only, it is said, was of the Catholic persuasion originally, but all embraced it as the day of death drew near.  Owing (as we suppose) to the Rev. Catholic clergyman preaching to them salvation by grace alone, in an usually clear and unequivocal manner.

A strong detachment of military escorted them along George-street, in which a dense multitude were assembled to witness the sad spectacle to Burwood, where a temporary platform was erected.  All the crown prisoners from Long-bottom, and the adjacent road-parties attended, according to a government notice.  During their progress to Burwood, Mustin frequently pulled the ropes round the necks of his companions, and asked them "how they liked it."  On arriving at the foot of the gallows, he ran up the ladder, and enquiring which was his place, jumped upon the scaffold to see if "all was right."  At a quarter before ten the warrant was read, when they ascended the scaffold, and all things being with some little difficulty and delay made ready, they were launched into eternity.  Brown and Watkins appeared resigned and penitent.  Mustin evinced a degree of indifference and want of proper feeling, which no exhortations from his pious teacher could subdue.  A fresh detachment of troops, constables, &c. here taking charge of the two remaining unfortunates, proceeded on to Parramatta, where they arrived at half past twelve.  The sight, though melancholy, was a novel one to the residents there, and a great concourse of the inhabitants attended.  The gallows was erected by the road-side, opposite the Domain Gate.  The unhappy men acknowledged the justice of their sentence, and confessed themselves the perpetrators of many outrages.  They died apparently very humble and penitent, the precepts of the Catholic Chaplain, sinking deep into their minds.  The bodies, according to a Government notice, remained suspended until sun-set.

James Moran and Patrick Sullivan, accomplices with Craven and Cavenagh, were destined to meet their dreadful destiny at Irish Town, fourteen miles from Sydney, on the Liverpool road.  The same order was observed as on the former occassion.  The criminals leaving the gaol at 6 A.M. their demeanour was very resigned, and they appeared to take a lively interest in the religious consolations afforded them by the Rev. Mr. Therry.  Their countenances were indicative of manly and becoming fortitude, that of Morgan was particularly open and expressive.  Previous to their leaving the gaol, they acknowledged their guilt, and their due sense of its enormity, at the same time declared themselves prepared to meet their Maker, and to look forward to the termination of their existence, as the passage to a happy eternity, which they wished not to delay. - They arrived at Irish Town at eleven o'clock, where the necessary apparatus had been prepared, and at half-past eleven, the world closed on them forever.

After the Execution of Muston, on Monday, a cast of his countenance in Plaster of Paris, was taken by some gentleman who were present at the Execution.

 

Notes

[1 ] See also Sydney Gazette, 7 October 1826.

[2 ] The Australian, 7 October 1826 subsequently reported that Mustin pleaded guilty to shooting at Mr. Clay, and was found guilty of robbery in the dwelling house of a publican.  See also Sydney Gazette, 7 October 1826.  He was sentenced to death on 5 October 1826: Sydney Gazette, 7 October 1826.

[3 ] These executions were also reported in the Sydney Gazette, 18 October 1826.  For the correspondence on this method of execution, see Archives Office Reel 624: Copies of Letters to the Judicial Establishments, letter from Colonial Secretary Alexr McLeay to Sheriff John MacKaness, 10 and 14 October 1826.  The first letter requested gibbets be arranged at Parramatta, and the second that the prisoners be sent by cart at 5 a.m. on Monday morning.  The bodies were to remain suspended all day, and in the evening to be interred in usual way or delivered to friends.  Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer be hanged in chains.  If he did not order that,  then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial.

The Monitor, 13 October 1826, set the stage for these horrible scenes.  It reported that "In order to increase a more powerful example by the execution of criminals, it is in contemplation to make the actual scene of their respective crimes in future the place of punishment.  With this view it is supposed that the delay has taken place in allowing the law to take its course in the cases of nine unfortunate men who are now awaiting the awful mandate.  Port Stephen - Parramatta - Bathurst - and Burwood, will in that case, witness the operations of retributive justice."  This was of doubtful legality where the crime was murder, since s. 1 of (1752) 25 Geo. III c. 37 required that all persons convicted of murder were to be executed on the next day but one after conviction, unless respited or the execution was stayed in the meantime, or that day were a Sunday.  It was not possible to reach Bathurst or Port Stephens so quickly.  See also R. v. Ridgway, Chipp, Colthurst and Stanly, September 1826; R. v. Stanley, March 1827.

Published by the Division of Law, Macquarie University