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

R v Bowen and Hughes [1833] NSWSupC 5

bushranging - assault - robbery - children, criminal defendants - capital punishment

Supreme Court of New South Wales

Dowling J., 12 February 1833

Source: Sydney Gazette, 14 February 1833 

John Bowen, and Henry Hughes, stood indicted for assaulting Thomas Groom, on the 3d December, 1832, and forciply taking from him, 3 bottles of gin value 10s. an one gun, value 20s, the property of his master Mr. Isaac Shepherd; a second count charged the prisoner, Henry Hughes, with receiving the gun.  The evidence in this case being conclusive, the jury immediately returned a verdict of guilty.  The Attorney General then intimated to the Court, that he had another indictment against the prisoners, charging them with the commission of a capital felony.  The prisoners were remanded.

Samuel Bell, Andrew Hamilton, and Edward M Guiness, were indicted for burglariously entering the dwelling house of G Windham, Esq., at Gammon Plains, Hunter's River, and forcibly taking therefrom, 5 lbs. flour, 5lbs. pork, and 1lb. Tobacco, the property of G. Windham aforesaid, and putting one Jose Antonio in bodily fear.  It appeared from the evidence of Antonio, who is an assigned servant to Mr. Windham, and who was extremely unwilling to give testimony against the prisoners, until remided by his Honor of the obligation under which he stood, that the prisoners at the bar came to his hut, and after the usual friendly salutations came in and seated themselves; witness was then in the act of making bread; witness did not think they were bushrangers; he asked one of the prisoners to remove the fire on the hearth, which he said he would with all his heart; after a little conversation the prisoners asked if he had any flour and beef in the hut, when witness told them he had flour and pork but no beef, they replied that was still better; they then ordered witness to leave the hut, with which order he felt himself under the necessity of complying; being now convinced they were bushrangers, he went to inform a fellow servant who was making a paddock at some distance, of the circumstance; on returning he saw the prisoner, Bell, leaving the hut, carrying a frock filed with something which he imagined was taken from the hut; the prisoners went away; this station is at some distance from any other; no time was lost in giving information to the nearest Magistrate of the robbery; on the following Saturday, the three prisoners paid a second visit, making anxious enquiry for the man who had informed against them; M'Manus, who was then in the hut, denied witness, who could see the prisoners through the slabs of his biding-place; M'Manus siezed [sic] a knife and told the prisoners he did not want any thing whatever to do with bushrangers; they then departed.  The whole of the prisoners ingeniously interrogated the witness, their object being to shew that he had given the property laid in the indictment to them.  The jury retired, and having consulted a few minutes, returned a verdict of guilty of larceny.  They immediately received sentence of 7 years transportation.

John Bowen and Henry Hughes were again put to the bar on an indictment charging them with burglariously entering the dwelling-house of William Barber, at Inverary, in the County of Argyle, on the 11th December, 1832, putting the inmates in bodily fear, and forcibly taking them from sundry articles, the property of William Barber; and James Killsen for receiving 1 shirt and 4 brass curtain rings, part and parcel of the property aforesaid, knowing them to have been so stolen.

Mr. Therry appeared as counsel for the prisoner, Killeen.

It appeared from the evidence of William Jones, a sawyer, living at Mr. Barber's, that on the night laid in the indictment he was awoke by loud rapping at the door, which was answered by a witness of the name of Hickey; the person on the outside demanding admission, Hickey mistaking the voice as being that of M'Auliffe, a constable in the district, arose and opened the door; the witness was immediately told by the piisoner [sic] (Bowen) to arise, with which he complied, thinking he was a constable; prisoner then procured a light by means of a piece of stringy bark; the fire was not quite out; the prisoners were armed; they proceeded to ransack the house; witness still imagined them to be constables having a search warrant, until he saw the features of James Dick, whom he knew (who was subsequently shot by the Mounted Police), when he discovered himself to be in the hands of bushrangers; they searched every part of the hut, and bundled up whatever they chose to avail themselves of; witness never saw the boy, Henry Hughes, during the transaction; witness asked one of them for his trowsers, as he had no other, which he returned to him, and told him they had not taken his jacket, which was in the house; while witness went to look for the jacket they departed; during the time one of the robbers was employed in ransacking the house, the other stood over Jones and Hickey, with his cocked piece, outside the door, ready to fire in case of resistance being offered.

This evidence was corroborated by the testimony of the witness Hickey.

A corporal of the Mounted Police, to whom information had been given, proceeded in company with one of his men to the residence of the prisoner Killeen; and when at a short distance from his house, he came to the door, and throwing up his hands, exclaimed ``Here are the Mounted Police!" The prisoner Bowen and James Dick immediately came out at the door and ran up the hill near the house: when a short distance up, the prisoner (Bowen) turned round and discharged his piece at the mounted policeman, which shot off his hat; the corporal, in endeavouring to cut off their passage up the hill, had his horse so badly wounded by a ball from the piece carried by James Dick, as to render him incapable of proceeding; Bowen was, however, captured and lodged in security, as also Killeen, in searching whose house, a shirt, identified by the first witness, and four rings identified by Mrs Barker, with sundry other suspicious looking property were found.  It appeared from the evidence of William Cassidy, a servant in the employ of Killeen, that his master had long lent himself to lawless pursuits of the many bushrangers that infest that quarter; and made a statement of his master's having been absent in their company during the whole of several nights, returning laden with property which he had no doubt was stolen; the witness Cassidy had pointed out to the police a large hole in the house capable of concealing six men, which was so ingeniously covered as to evade observation.

The learned Counsel in his cross examination of the several witnesses, endeavoured to shake their testimony as to the identity of the property laid in the indictment.  No part of the evidence affected the prisoner, Henry Hughes, who is no more than 14 years old, as being concerned in his transaction with the exception of his having given up to Mrs Barker, at the suggestion of the police at Inverary, a silver ring, which she identified as being her property, and part of the articles specified in the indictment.  The case for the prosecution being closed, the learned Judge recommended the jury to return a verdict of not guilty against the prisoner Hughes, who had been found guilty on a former indictment, which was sufficient to subject him to exemplary punishment.  The jury retired, and after a deliberate consultation returned a verdict of Guilty against John Bowen, and James Killeen; Henry Hughes, Not Guilty.

His Honor delivered an affecting address to the prisoner Bowen, expatiating at some length on the enormity of his offence; aggravated in a high degree by his having encouraged a mere child to become a participator in his delinquences.  This circumstance and his long career of crime rendered it imperative on him to endeavour to awake the prisoner to a sense of the awful situation in which he stood, exhorting him to shut out all hope of mercy on this side of the grave, and implore forgiveness from his offended maker.  His Honor then, in a most solemn manner, passed on the prisoner the awful sentence of Death, to be carried into execution on such day as may be appointed by his Excellency.  His Honor seemed much affected at the depravity of the juvenile delinquent, Hughes, who has proved himself to be a determined offender; having been several times charged with robberies since his transportation to this Colony.  He was sentenced to be transported to a penal settlement for seven years.

His Honor in addressing the prisoner, James Killeen, observed that his case was one which merited the highest punishment; in rendering succour to a gang of lawless ruffians, the whole business of whose lives was to deprive honest members of society of that which they had acquired by industry and care.  He hoped his case would be a warning to deter others, from falling victims to those passions which had brought him into that situation.  The prisoner was then sentenced to 14 years transportation to a penal settlement.[1 ]

 

Notes

[1 ] Bowen was hanged on 5 March 1833: Sydney Gazette, 9 March 1833.  The Gazette lamented the levity of some of the crowd, and noted that another of the gang, James Dick, was shot dead by police.

For another case of child defendants, see R. v. Tolemy, Jones and Kennedy, reported in Sydney Herald, 20 May 1833; Sydney Gazette, 18 May 1833.  The boys, who were charged with burglary but convicted of larceny, were from Carter's barrack.  The Herald said that the "young urchins ... could scarcely peep over the bar" of the court.

See also Sydney Gazette, 25 May 1833, for a report of the execution of 17 year old William Jones for highway robbery.  See also Australian, 24 May 1833.

Published by the Division of Law, Macquarie University