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

R v Toole [1830] NSWSupC 32

burglary, Pittwater

Supreme Court of New South Wales

Dowling J., 18 May 1830

Source: Sydney Gazette, 20 May 1830[1 ]

Michael Toole was indicted for a burglary and robbery in the dwelling-house of Henry Gaskin, a settler, at Kreele Bay, in the district of Pitt-water, on the 4th of February last.

From the evidence adduced in this case, it appeared, that on the night of the day laid in the information, some time after the prosecutor, his wife, and a man named Woodford, who had lived in the house, had retired to rest, the outer door was forced open with considerable violence, and the prisoner rushed in, armed with a musket, calling out ``now for you onions!" Gaskin and his wife, being an aged couple, were very much alarmed, particularly as the robber, presenting the musket at Gaskin as he lay in bed, swore that he would blow his brains out if he stirred.  He then compelled the man, Woodford, to rise and light a lamp, with which he commenced a search through the room, and obliged Woodford to open a chest, containing a variety of property, which he immediately commenced pillaging.  While he was thus employed, he placed the musket on the ground, and Gaskin, upon a signal made to him, suddenly got out of bed and seized it unobserved.  A dreadful struggle then ensued between Gaskin and the robber for the musket, in the course of which, Gaskin, still retaining his grasp, however, was thrown on the ground, and while in that position received a severe cut across the face with a knife which the robber drew upon him.  Woodford came to the assistance of Gaskin, and struck the robber several severe blows on the head with a stick; when finding, having lost possession of the musket, that the odds were against him, he made a precipitate retreat from the house.  Gaskin endeavoured to fire after him, but found that the gun flint had been lost in the scuffle, and that the pan was full of his own blood which flowed from the cut received by him in the face.  The witnesses underwent a most minute examination by the learned Judge, as to the prisoner's identity, but they all swore positively to him; the prosecutor and his wife stating that they recollected his person at once, as he had committed another felony in their house on the might of the 30th of the preceding November.

About a month after the commission of the offence for which the prisoner was tried he was apprehended by the district constable of Broken Bay, who, from information he received, traced him, with the assistance of two native blacks, to a house in that neighbourhood, where he was discovered concealed among some corn, and attempted to make his escape through the window, but was brought back, after he had proceeded a very short distance from the house, by one of the blacks, who fired at, and wounded him in the elbow as he ran.

The Jury found the prisoner Guilty, and the learned Judge immediately passed sentence of Death upon him, to be executed on such day as His Excellency the Governor should think proper to appoint.[2 ]



[1 ] See also Australian, 21 May 1830.

[2 ] On Toole's execution, see R. v. Martin, 1830.

Published by the Division of Law, Macquarie University