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

R. v. Iron [1828] NSWSupC 96

burglary, bushrangers, convict escape, capital punishment, sentencing discretion

Supreme Court of New South Wales

Forbes C.J., 19 November 1828

Source: Australian, 21 November 1828

When John Iron was indicted for breaking and entering into the dwelling-house of John Brown, a settler, living at Botany Bay, and putting the inmates thereof in bodily fear, which the statute, in such case made and provided, constitutes a capital felony.[1 ]  It appeared in evidence, that on the 8th of December, the prisoner, in company with another man, both being at the time runaway prisoners of the Crown at large, in the bush, came to the dwelling of the prosecutor, and plundering it of a musket and some ammunition, was about leaving the dwelling with his associate, when the prosecutor observing them, followed in the direction they took, but had not got far before the men, discovering his purpose, halted, and beckoned him towards them.  Prosecutor hesitated, being afraid, and said he would not approach nearer, upon which, the bandits faced about, and marching the prosecutor back to his own dwelling, the prisoner transferred his musket to his associate, who stood sentry over prosecutor whilst the prisoner, at his leisure, proceeded to rob the house of what had before escaped, and collecting together a quantity of wearing apparel, after tying the disquiet prosecutor fast, and cautioning him to be very quiet, bundled away themselves and bundle.  About ten minutes after, prosecutor managed to get out of the name of Larry, who was in search of two men answering the description of the prisoner and his associate, happening to come up, on entering Brown's hut, and whilst casting an eye through the window, observed the prisoner walking on the beach below, with a musket in one hand - so a ruse de guerre, was instantaneously concerted.  Larry popped into a hiding hole, whilst the prisoner, with wonderful assurance, walking up from the beach, sung, from outside of Brown's dwelling, "are you at home," or words to that effect, "let me in."  Brown did so, and in the prisoner walked; but whilst complimenting Brown on his having got loose, Brown made an effort to grasp the musket held by the prisoner, which the latter evading, stepped back - presented the musket in Brown's face, cocked, and snapped it, but the piece, which the prosecutor verily believed, was fatally loaded with ball, and that hellish compound of brimstone and charcoal, and

--- "villanous saltpetre --- digged

Out of the bowels of the harmless earth,

Which many a good tall fellow has destroyed

So cowardly ---."

that very piece missed fire --- but ere the prisoner could recover, bush constable Larry, popped up most opportunely, and giving the prisoner a wipe with his oaken towel, the latter twirled round, and by the united force of two, was secured.  Master Larry was about securing his prize with a pair of handcuffs, when the latter sprang up, and brushed a little way past him, but was again pinned, and lodged finally in close durance.  In his defence, the prisoner admitted the fact of his being the personage taken by Brown and Larry, the two prosecuting witnesses - and also that he had the musket in his possession which those witnesses had sworn to, but strove to account for this, by stating that he picked it up on the beach --- a man, who was running away, having thrown it from him, and that with this gun he was approaching the hut, when the witnesses, who had been examined, took him prisoner.

The learned Chief Justice charged the Jury, that as the present was a capital felony, and involved the prisoner's safety, inasmuch as if a conviction took place, in all probability the extremity of the law would be exercised, he, the learned Judge, trusted the case would arrest the most serious attention.  If the Jury believed the witnesses, to be the witnesses of truth, his Honor could not see what doubt could exist on their minds, as to the result of the verdict they out to arrive at.

The Jury brought in a verdict of guilty --  Remanded for judgment.

 

Forbes C.J., Stephen and Dowling JJ, 13 December 1828

Source: Australian, 16 December 1828

John Iron, convicted of a burglary in the dwelling house of John Brown, being asked in the usual form if he had anything to urge in extenuation of judgment, and making no reply, was thus addressed by the learned Chief Justice:---[2 ] John Iron, you have been convicted of a burglary in the dwelling house of the prosecutor, and of putting himself in bodily fear.  This is a capital felony, and an offence which is made punishable with death.  The circumstances too under which you committed this crime are such, as to leave very little hope that any merciful consideration on a review of your case, can be indulged in.  You, prisoner, were charged with breaking and entering the dwelling house of a peaceable settler, named Brown, at Boong Boong, on the 8th Dec.  It appeared in evidence that after you plundered the house of part of the property it then contained, you, in company with another person, not yet discovered, retired with the plunder, when the owner coming home, and discovering you at a distance, and you discovering him, you returned to his dwelling house, and there compelling him to submit to your violence, you secured his person, and chained him to his bedstead.  Upon this your second visit, you took what few articles of property you left on the occasion of the first visit.  You then departed with the plunder, but again returned.  In the mean time it appeared that the prosecutor had taken means to save himself, when you made your third visit to the house, to use you own language, as the prosecutor in his evidence deposed to, you found he had got loose. - You were about to commit violence on his person in consequence of this, when he, in self defence, made an effort to snatch from your hands his own musket, which he knew to be loaded, and which you had previously stolen; when, having overcome him in this effort, you levelled your piece at his body.  What you intended by that act can only be conjectured by what you did.  Very probably your intent was plunder, accompanied by a wilful design to commit murder.  Fortunately, however, for the prosecutor, your arm was suddenly arrested by the interference of one Larry, a constable; but for this interference there can be no question that the completion of your intended offence would have been murder, and instead of being convicted of robbery, the conviction would have been one of no less a magnitude than that of murder.  The complicated crimes of which you, prisoner, have from time to time been found guilty, imperatively call upon this Court to visit you with a punishment proportioned to the enormity of your offences.  The sentence therefore of the Court is, that you John Iron be conveyed hence to the prison whence you came, and that on a day hereafter to be named by his Excellency the Governor, you be taken to the common place of execution, and there be hanged by the neck until your body be dead, and may the Lord have mercy on your soul.  And prisoner at the same time, let me enjoin you to employ the short time will be allotted you to remain in this world, to the best of all earthly purposes.

The prisoner was then removed from the dock.[3 ]

Notes

[1 ] See also Sydney Gazette, 21 November 1828.

[2 ] See also Sydney Gazette, 15 December 1828.

[3 ] Iron was hanged on 22 December 1828: Australian, 23 December 1828.

Published by the Division of Law, Macquarie University