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

R. v. Payne, Waylin and Middleton [1829] NSWSupC 3

bushranging - stealing in dwelling house - sentencing discretion - capital punishment, mass execution

 

Supreme Court of New South Wales

Dowling J., 2 January 1829

Source: Australian, 6 January 1829

John Payne and Edward Waylin were indicted under the 7th and 8th Geo. IV. ch. 29, sec. 12. for stealing property in the dwelling-house of Malachi Ryan and putting his person in bodily fear; and Sarah Middleton, widow, for receiving part of the property so stolen with a felonious knowledge thereof.[1 ]

The Attorney General conducted the prosecution.

Mr. Rowe defended the prisoner Middleton.

Malachi Ryan, the prosecutor, deposed that on the 19th September last, he was living in his house at Appin.  Between 8 and 9 o'clock at night four men entered his house.  The door was on the latch.  He was then in bed.  On the men coming in they laid down their muskets; two of them had muskets with bayonets fixed to the ends of them.  The other two had fowling pieces.  They proceeded to plunder the house of two hundred and a half weight of flour, a quantity of wearing apparel, and a silver watch worth from between two to three pounds.  The watch was taken out of a cup-board, where witness had put it on retiring to bed.  He was alone in the house on this night.  The prisoner Payne was one of the four men in the robbery.  Witness had previously known him, when he went by the name of Wolloo Jack.  He had often had him in his charge when he was chief constable.  Whilst Payne was in the house he gave witness frequent strokes on the body with a fowling piece.   This man and another of the party stood sentry over him whilst his companions were employed in searching.  He, Payne, asked witness for the £100 he had brought from Sydney.  Witness told him he did not bring more money than one holey dollar.  He then put a bayonet into witnesses mouth to force him to tell where the money was.  There were two of witness's servants in a hut a little distance, whom the thieves brought into the house.  On going away they tied witness's and his servants' hands together and locked up the house.  They then went away.  At this time it was quite dark.  All four men were masked.  One man, however, the prisoner, Payne, in stooping down to the fire to strike a light to give his comrades, let fall the crape from his face, which enabled witness to see his features most distinctly.  To the best of witness's knowledge the prisoner Waylin was another of the men, but is not positive to his identity.  Thomas McAllister he also believes to be the third man.  Witness had known McAllister from a child.  He is a native of the colony.  Witness's two men got their hands loose first, and then they loosed his.  About a month afterwards he saw the prisoners Payne and Waylin in custody at Campbell Town Court-house.  He then challenged them with being two of the men who had robbed him, but they flatly denied it.  Witness, however, told Payne positively that he was one of the men, and afterwards swore to the same.  He was shewn a silver watch at the time, and instantly recognized it to be the watch stolen from him on the night of the robbery.

Cross examined - I reported the robbery next morning to the chief constable at Campbell Town.  I had been only one night at the farm, before it happened.  At that time I mostly lived in Sydney.  I had not lived in the house for six months before this.  I went there to my harvest.  One of my own servants has slept in the house ever since this robbery took place.  I would sleep there now, when I go to the farm, only I am afraid of my life.  There have been for some time four bushrangers about that quarter.

Henry Bradley, constable, examined - On Tuesday the 7th of October last, I searched the prisoner Middleton's house, in Appin.  I went there in company with Larrigan, a constable, and two of the mounted police.  Larrigan searched her person; and took out of her bosom a silver watch, which he put into my hands.  This is the same watch.  [Here the witness produced it]  The watch was afterwards claimed by the prosecutor (Ryan), before the Justices at Campbell Town, a fortnight after it was got.  Larrigan asked Middleton how she came possessed of the watch?  She said she had it of a man from Sydney, the week before, and that he gave it to her as a present for her son.  She said she would know the man again if she were to see him.  The prisoner said nothing else.

Cross-examined - I never saw the prisoner Payne to my knowledge before he was taken.

Re-examined - I searched Payne's house.  Near thereto I found a pair of shoes, in a stump hole, which was covered over with bushes.  The shoes were afterwards claimed by the prosecutor.

Owen Larrigan, a constable, corroborated the evidence of the last witness.  A month after the robbery, the prisoner Payne was found at the place he usually lived at.  He made no effort to escape.

Mr. William Chippendale, chief constable at Appin - I saw Payne drinking from public-house to public-house, at the time he knew he was suspected of being implicated in the prosecutor's robbery.  This was a day or two after it took place.

Cross-examined - I live within two miles, or thereabouts, from the prosecutor's station.  He never reported the robbery tome.  Appin and Campbell Town are twelve miles apart, at least.

Thomas McAllister, admitted an approver, examined on oath - I know the house of the prosecutor, Malachi Ryan.  On the 19th of September last, in the evening, the prisoner Payne, with three other men, left me at the prisoner Middleton's house.  Payne told me they were going to the house of Ryan, to rob it.  This was between eight and nine o'clock in the evening.  About eleven or twelve o'clock they came back, with a horse loaded with a large quantity of flour, and a variety of wearing apparel.  They also brought a silver watch.  There was no one else present in the house when they came back.  The property was taken to the house where I and the prisoners Payne and Waylin lived.  The spoil was divided amongst us.  Payne had some of he clothes.  I got the watch.  The same watch I left with the prisoner Middleton about a fortnight after.  She knew me very well.  I was not going to sea at that time.  I told her to take care of the watch until I returned back from Sydney, whither I was then going.  She had known me for several years previously.  I was never in trouble before this time.  I was never before a Magistrate on any charge whatever, but on the occasion of this robbery.

Cross-examined - I left the watch with Mrs. Middleton, for safe custody.  She did not know how I became possessed of it.  I never had any quarrel with Payne in my life.

Malachi Ryan was re-called.  Being shewn the watch produced by the constables, he identified the same to be his property.  He had it only about three days before it was stolen.

Cross-examined - He can read and write, but not very well.  Knows the name on the watch, but forgets the number.  When he purchased the watch, the number of it was given him on paper; which he here produced.  He swore plump to Payne's person at the Campbell Town Court-house.

Owen Larrigan, constable, also re-called, produced some clothes, which he found concealed under a rock, about a quarter of a mile from Payne's and Waylin's house.  The approver (McAllister) took him to the place.  A pair of shoes was found in a stump hole near Payne's door.

Malachi Ryan further swore to these several things being also his property.

This was the case for the prosecution.

For the prisoner Middleton, Counsel took two legal objections.  First, that a watch was an article generally under the protection of the person, and did not come within the scope of the Act of Parliament under which this information was brought, of stealing in the dwelling-house.

The Court overruled this objection, on the ground that the watch having been put aside by the owner, upon retiring to his nightly rest, it was as much under the protection of the dwelling-house, in law, as it formerly was of the person.  Counsel then contended in the second place - that the house in which the robbery was said to have been committed, could not be considered the dwelling-house of the prosecutor, inasmuch as it was proved in evidence he had only slept in this house that particular night, or the night before, and was not his usual place of residence.  This objection was also overruled; the learned Judge being of opinion, that the owner of a house, occasionally visiting it to sleep there, constituted that a dwelling-house, in the legal acceptation of the term, as much as if he continually slept in it.  The prisoners having no witnesses to call,

The learned Judge summed up he evidence to the Jury, who, after a short consultation, brought in the prisoners Payne and Middleton guilty, and Waylin not guilty.[2 ]

On the motion of the Attorney-General all three prisoners were remanded in custody.

 

Forbes C.J. and Dowling J., 6 January 1829

Source: Australian, 9 January 1829

John Payne and Edward Whalen were next put in the dock.[3 ]  The learned Judge, in addressing them, said it became his most bitter and painful duty to pass that sentence which the law imposes.  They had been found guilty of three capital felonies or burglaries.  One was in the dwelling-house of William Byrne, a settler at West Bargo, on the 17th of September last, and stealing articles therein, to a considerable extent.  The second offence was that of stealing in the dwelling-house of Malachi Ryan, at Appin, on the 19th of September, and putting him in fear of his life; and, on the third information, you were indicted, for robbing the house of Timothy Beard, and putting Elizabeth, his wife, in bodily fear.  You Whalen, observed the learned Judge, were indicted with the other prisoner.  You had the good fortune to get acquitted of the two first charges, but you were found guilty of the third.  It now becomes my most painful duty to pass upon you the awful sentence of the law.  The Jury who tried you with the utmost anxiety and concern, looked into all the circumstances of your case, and well satisfied themselves of your guilt before they brought you in guilty.  They, however, were under the sacred obligations of an oath, and had no alternative than that of pronouncing your conviction.  Unhappy prisoners, the duty of my situation demands of me, that I should warn you that you now stand on the brink of eternity.  You two men formed part of a desperate gang of marauders, who were going about the country at all hours, seeking whose property you could enrich yourselves with, to satisfy your unlawful and wicked ends.  The public justice of the country holds it to be necessary that characters like you should be taught the awful consequences which follow such conduct as your's.  Some like you are still left, pursuing their plunder - wandering about the country - waging war against society - but most assuredly justice will overtake them, and they will have to fall victims like you.  My own conscience and my own judgment satisfies me that your sentence is just.  You are now about to be taken back to your prison cell, there to be permitted for a few days, to remain under the pious charge of a worthy clergyman, preparatory to the awful doom which awaits you, being carried into its complete effect.  No earthly power can now save you.  Public justice and the laws of society require that a stop should be put to the commission of those serious crimes - crimes of which you have been guilty.  I caution you, unhappy men, to employ the few short hours which is left you, to implore mercy and forgiveness at the hands of your Divine Maker, which in this world cannot be extended.  On this side of the grave I can hold out no hope of mercy to you.  The painful duty now devolves on me to pass upon you the awful sentence of the law, which is that you John Payne and you Edward Waylen, be taken from hence to the prison from whence you came, and that on such day as His Excellency the Governor shall be pleased to order and direct, you be taken to the place of execution, and be there hanged by the neck until your bodies be dead, and may the Lord in his infinite goodness have mercy on your souls.[4 ]

Sarah Middleton, for receiving a silver watch, the property of Malachi Ryan, knowing the same to have been feloniously stolen, was sentenced to 14 years' transportation.  The prisoner was 50 years of age.

 

Notes

[1 ] See also, Sydney Gazette, 8 January 1829, spelling the name of the second defendant as "Whalen".

Judge Ian Dodd of the New South Wales District Court is a descendant of  Sarah Middleton and supplied the following background to the case and its outcome:

``Sarah Middleton was sent to Moreton Bay as her punishment. She was sent back to Sydney on 20 February 1836, probably due to illness & died in June 1836.  Her husband William Middleton had died on 18 January 1828 and was buried at St Peter's Campbelltown. His grave is marked by a headstone on which his details can still be seen today.

``Thomas McAllister is referred to in the report as "an approver" - i.e. he gave King's evidence. Sarah Middleton was his mother-in-law. He had married one of her daughters, Caroline, at St Peter's on 14 April 1828. They went to the Murrumbidgee area immediately after this case and with their children became known as one of the pioneer families of the Tumut district. Caroline died on 25 April 1863. Thomas died 31 December 1875.

``The descendants of these families are today very numerous, probably many thousands."

[2 ] On the next day, 3 January 1829, Payne and Waylin (or Whelan) were found guilty of robbery in the dwelling house of Timothy Beard, and Middleton was found not guilty of receiving the proceeds of the robbery.  See Sydney Gazette, 6 January 1829; Australian, 6 January 1829.

[3 ] See also, Sydney Gazette, 8 January 1829.

[4 ] Payne and Waylin were hanged on 12 January 1829, along with six others: Sydney Gazette, 13 January 1829; Australian, 13 January 1829.

The judge had discretion to order a lesser sentence. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

 

 

Published by the Division of Law, Macquarie University