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

R. v. Cooke and Walsh [1829] NSWSupC 57

assault - disorderly house - sentencing discretion - witness, assault on in court

Supreme Court of New South Wales

Dowling J., 23 September 1829

Source: Sydney Gazette, 24 September 1829

John Cooke and John Walsh, were indicted for an assault on the person of John Pike and robbing him of several pieces of silver money, at Sydney, on the 5th of August last.[1 ]

John Pike -- I am servant to Mr. Brownlow of the Canning Tavern; on or about the 6th August, about half-past 1 o'clock in the morning, I was at the house of a man named Mannington on the rocks; I was perfectly sober; there were 14 or 15 persons, all strangers to me, in the house at the time; I had been there about an hour in company with a man named Martin Bryant, who was rather tipsy, and I went in from having heard a fiddle in the house; I had nothing to do with the company, and stood between the place they called the bar, and the tap-room looking on at the dancing; I had a pint of wine, and pulled some money out of my pocket to look for some small change to pay for it; after I had paid for the wine, the two prisoners came in, and Cooke laid hold of me; I never saw them before in my life; they knocked me down, and Cooke jumped on me; we had a great scuffle and  I was very near getting up when Cooke put his foot on my throat, and almost strangled me; I had my money in my right hand waistcoat pocket, consisting of seven dollars, one rupee, one dump, and six pence in coppers, which were taken out of my pocket by Cooke whilst I was down; I told them as well as I could speak, if they would only leave me half of it I would be obliged to them and would spend it for the good of the house; I said this because I did not think I should get it by any other means; Cooke then struck me with his fist between the eyes saying ``go along you b--r I'll give you none," and the two prisoners went out my friend wanted to assist me, and he got two black eyes from Walsh; after a little time Mannington came in and I told him what had happened; the prisoners were taken up the same night, and I saw them both in custody the next morning; I knew them at once to be the same men who robbed me; I saw some money afterwards at the police-office, among which was a black dollar which I believed to be mine; I saw seven dollars, a rupee, a dump, and six pence in coppers, being the same amount and description of money I was robbed of; I had just come from sea at this time, and lodged at Mr. Harvey's in Pitt-street; I had observed Cooke come into the house with the handle of a spade about five minutes before I was knocked down; I slept at Mannington's that night, for I was not able to go home to my own lodgings; I did not see Walsh do any thing to me, but when Martin Bryan said it was a shame to use me so, Walsh struck him in the face and gave him two black eyes; the prisoners came in and went out together; they remained in the house about ten minutes after I was knocked down, during which time none of the persons present attempted to secure them; there were ten or twelve persons, men and women, in the house; they appeared to me to have been acquainted with the prisoners, as some of them have since come to me and wanted me  make the business up.

Thomas Washington, steward of the brig Ann, stated that he was in the house on the night in question, and corroborated the material circumstances detailed in the evidence of the last witness.

Other witnesses also spoke to the same effect, and the learned Judge having minutely recapitulated the evidence, the Jury found the prisoners Guilty.

The learned Judge, immediately directed the prisoners to be called up for judgment, when a sentence of death was passed, to be carried into execution on a day to be appointed by His Excellency the GOVERNOR.  The prisoners are both young men about the age of two and twenty, and have been but a short time free, having been originally transported to this Colony from the mother country under sentence for seven years.

Previous to being removed from the dock, the prisoner, Cooke, leant over the side and struck one of the witnesses from the Crown (Constable Orr) a violent blow on the head, with his clenched fist.

Before the rising of the Court, Mr. Justice Dowling, requested the counsel for the Crown (W. H. Moore Esq.) to intimate to the Attorney General, the desire of the Court that he would prefer a information against the man, Mannington, for keeping a disorderly house, and that he should be forthwith taken before the Magistrates to be bound over to appear and answer such charges as should be preferred against him.

 

Notes

[1 ] See also Australian, 25 September 1829; Sydney Gazette, 26 September 1829.

Published by the Division of Law, Macquarie University