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

R. v. Johnson [1828] NSWSupC 34

highway robbery, Cowpastures, capital punishment, sentencing discretion

Supreme Court of New South Wales

Dowling J., 15 May 1828

Source: Australian, 16 May 1828

James Johnson, alias Phillip McCawley, was indicted for highway robbery.

Mr. Solicitor General Sampson conducted the case for the prosecution.

Richard Tills examined.  I hold a ticket of leave.  I am a shepherd in the employment of Mr. Browne, of Liverpool.  I am stationed at the "Oakes," on the Cowpastures.  On the 11th of April last, a little before sun-down, whilst returning from Liverpool, towards the Oakes, between Mr. Kellar's farm, and Mr. Scott's, the publican, on the Cow-pasture road, I met the prisoner.  He seized me by the collar, tripped up my heels, and gave me a blow with a stick, the same stick which I now hold in my hand, which (blow) brought me to the ground.  Whilst on the ground the prisoner seized me by the throat, and put his hand into my pockets searching for money.  I told him I would give up what money I had - that I was an old man, and begged he would not hurt me, when prisoner gave me another blow with the same stick, and repeated the blow, accompanying it with this expression  "you are an old villain, if you look at me I will murder you"  A person who happened to be travelling the same road at the time came up, and begged the prisoner to desist, and not to ill use me any more, when prisoner and the man who came up went away together.  Upon looking round about me, and being perfectly recovered from the fright I had been thus thrown in, I missed a bottle of spirit which I had at the time of being stopped and assaulted, as also a cotton shirt and some shoe nails, which formed a bundle, and were in my possession, when they were forcibly taken from me by the prisoner.

James Nicholls sworn, examined.  I am a hired servant of Mr. Harrington.  I live on his farm at the Cowpastures.  I recollect that about an hour before sun-down on the evening of the day laid in the indictment, I was passing Scott's the publican, on the Cow-pasture road; when I was called on by the prisoner, who enquired how far I was going that evening, and invited me to drink some grog with him I took the remains of a glass or tumbler of grog with him, and afterwards proceeded on the road towards Liverpool, in company with the prisoner, until we met with the prosecutor in this case.  I was a short distance behind, and on coming up, observed the prisoner at the bar knock Richard Tills (the prosecutor) down, by a blow of a stick, and afterwards put his hands into Tills's pockets.  The latter cried out, when prisoner gave him another blow, desiring him at the same time not to look at his face, or he would beat him again.  I saw the prisoner take from the pocket of the prosecutor, two tin boxes, one of which contained his ticket-of-leave.  The prisoner examined these two cases, and afterwards returned them to Tills.  I also saw prisoner take from prosecutor a bottle, what it contained I did not then know, nor did I enquire, and also a shirt.  I begged of the prisoner not to ill-use the man any more. Upon this interference on my part, prisoner cautioned me to keep quiet, else he would serve me out in the same way.  I then held my tongue and went on with the prisoner until we came to Browne's, the blacksmith's, on the same road, to whom I reported what had occurred, saying I would not go any further that night.  Prisoner hereupon left Browne's, to which he had followed me and the prosecutor, and having seen him fairly off, I returned towards Mr. Scott's, a Magistrate, whose house we had passed, and which lay conveniently to give an alarm.

Mr Joseph Scott examined.  I reside on the Cow-pasture road.  I remember that about sun-down on the evening of the 11th of last month, the prosecutor in this case, Richard Tills came to me, and reported he had just been robbed.  He was bleeding very much at the time, and held two tin boxes in his hand.  He said he had been knocked down and robbed.  I enquired who had robbed him. - He replied, it was done by two men!  The one was a short, and the other a tall man.  Upon hearing this, I immediately observed, that they must be James Nicholls and the tall man, who went away with him a short time before.  I, immediately, in company with others, set off in pursuit of these men.  On the way I was met by a man named James Nicholls, and afterwards by a man belonging to the government camp, who said he had just escaped being robbed, that he received a blow from a man  that there was a cart in sight, and that he halloed out for assistance, when the man who had thus assaulted him, instantly took to his heels and made off.  I then continued the pursuit, and when near Molle's Maine, in the bush, we apprehended the prisoner.  He resisted a good deal.  We searched him, but found nothing.

Here closed the case for the prosecution.

The prisoner in defence stated, that he was affected with liquor at the time of the affray taking place, and complained that the witnesses for the prosecution had overrated the circumstances of his attempt at escaping.

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


Forbes C.J., Stephen and Dowling JJ, 21 May 1828

Source: Australian, 23 May 1828

James Johnson, alias Phillip Gawley, for highway robbery, was then addressed by the same learned Judge, before whom the prisoner was tried, his Honor having first assumed the black cap.  The prisoner had been indicted for a highway robbery on one George Tills, on the 11th day of April last, and committed of stealing a shirt, value 5s, a quart of spirits, and 100 nails, belonging to the same person.  The Jury, after an attentive consideration of the case, had arrived, the learned Judge[1 ] considered, at a very proper verdict --- that of guilty.  "The circumstances under which you, prisoner, robbed this poor old man, are of a very aggravated character.  The man was old in years; he was a wayfaring man, and was going home after the duties of the day, when you intercepted him on the road, and with a bludgeon assaulted, knocked him down, and robbed him.   Whilst down the old man asks for mercy, expecting destruction at your hands.  Instead of this you struck him with a bludgeon whilst on the ground twice, which was followed by a stream of blood from the veins of this aged man, whose grey hairs you should have better respected.  This therefore is a case which cannot call forth any hope of mercy being extended to you.  The penalty of this offence is death, and I am afraid that that sentence must be fulfilled.  It now devolves upon me to pronounce that sentence which the law has in its justice and its wisdom affixed to a crime like yours.  Between this time and the awful morning which this sentence shall be carried into execution upon you, let me earnestly advise and beg of you to look back with seriousness upon your past life, and by devotional exercises endeavour to make some atonement for your past crimes.  Call to your aid some pious minister; shut your eyes against the world, and trust to find that mercy at the hands of your maker, which this world denies you.  It now becomes my most painful duty to pronounce the awful sentence of the law upon you, which is, that you James Johnson, otherwise Phillip Gawley, be taken from hence to the prison whence you came, and that on a given day, you be led to the usual place of execution, and there be hanged by the neck until your body be dead; and may the Lord in his infinite mercy have compassion on your soul."

The prisoner did not seem greatly affected at the sentence.  He appeared quite tranquil and composed, repeating two or three times that he was innocent of the crime of which he had been returned as guilty.[2 ]


[1 ] Dowling J.: see Sydney Gazette, 23 May 1828.

Published by the Division of Law, Macquarie University