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

R v Cunningham and others [1833] NSWSupC 105

R. v. Cunningham, Oates and McLellan

highway robbery - Parramatta - Liverpool - convict escape - bushrangers - Orphan School - felony attaint - convict rights

Supreme Court of New South Wales

Dowling J., 18 November 1833

Source: Sydney Herald, 25 November 1833

John Cunningham, William Oates, and David McLellan, were detained at the bar[1 ] to answer another indictment, for having stopped on the King's highway William Thomas, who was driving a loaded cart between Parramatta and Liverpool, and stealing therefrom a bag, value sixpence; twelve pounds of tea, twenty shillings; twenty-two shirts, sixty shillings; twenty-one pounds of leather, ten shillings; sixteen pounds of soap, five shillings; and from his person one knife, one shilling; and one handkerchief, one shilling, the property of the Rev. S. Marsden and others, Trustees of Church and School lands; to which the prisoners pleaded Not Guilty.

William Thomas, labourer to the Male Orphan School, near Liverpool, stated that he did not know whether the Rev. S. Marsden was a Trustee to the School or not; that he was going from the Orphan School to Liverpool in a cart with a quantity of soap (not all taken) and other goods, as stated in the indictment; that he was alone, when four men came out of the Bush, two of whom were not tall men, to stop the cart, he said ``Unfortunate men do you want any thing to eat?"  they said ``Yes." I said ``there is nothing here to eat, only a few things belonging to the poor Orphans;" they then stopped the bullocks, two of the men jumped into the cart, one of them took the handkerchief from my neck and rifled my pockets of a clasp knife; they then took about sixteen pounds of the soap and the other goods from the cart; the men in the cart then ordered me to strip, and took me to the Bush for that purpose; they said they were told I had money; I said I had none; they said I had better give it up; I begged them not to ill-use me; they said they would not if I would be quiet; they stripped me to my shirt, but afterward left my clothes, mean-time two of the men were robbing the cart; Cunningham was one of the men; I afterward saw my kandkerchief and knife at Liverpool, in the Court, and I could swear to them.

McGinnon deposed to his knowledge of the prisoners, and was with them on Saturday, in July, near Parramatta, leading to the Orphan School; we stopped the cart and robbed it; the man with it told us he was going to the Orphan School; I was taken in the evening; Cunningham ran away about half a mile before us; never saw them again until in the gaol; I am sure the three prisoners were with me.

William Shenkin, constable, stated that he had taken Oates and Cunningham in the Bush, on the 24th July last, about dusk; another man escaped; a tall man, answering the description of McLellan, and I was afterward informed it was him; I found a knife and a handkerchief on each of the men I took into custody, but never found claimants for them; I took these men as runaways; Oates gave his name as William Jones, and Cunningham as Hurtkin.

Samuel Hall, constable, heard sometime in July of prisoners being at large, and on the 24th of that month captured McLellan by himself, who said he was a free man, and called himself Johnson, of Windsor; at a public-house I asked him if he was not a runaway? he at length confessed he was; he had been brought up before, and was sentenced to twelve months in an iron-gang.

The prisoners being called up for their defence, Oates said, McGinnon says I advised him to take the Bush; I never was in his company in my life.

McLellan said, I had two witnesses to call, but they have both absconded.

Cunningham said they had sworn his life away.

His Honor, in summing up, stated, that although there was no proof adduced that the goods stolen were the property of Samuel Marsden and others, as Trustees of the Orphan School, yet there was another Count that stated the property as belonging to the Crown.  With regard to any property stolen from the person while under sentence, it was, by law, the property of His Majesty.

The Jury without retiring, pronounced a verdict of Guilty against all three of the prisoners, and death was severally recorded against them.



[1 ] Cunningham and Oates had just been acquitted and McLellan convicted of another charge of highway robbery.  The three had also just been acquitted of another property offence: Sydney Herald, 25 November 1833. 

See also Dowling, Proceedings of the Supreme Court, Vol. 91, State Records of New South Wales, 2/3274, pp 1, 12, 19.

Published by the Division of Law, Macquarie University