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

R v Hitchcock and others [1833] NSWSupC 114

robbery in dwelling house - Castle Forbes - Patrick Plains - convict escape - convict discipline - convict service - Bushranging Act - Maitland - Mounted Police - Aboriginal trackers - indictments, error in - bushrangers - attempted shooting - legal representation in criminal cases

Supreme Court of New South Wales

Forbes C.J., 9 December 1833

Source: Sydney Herald, 12 December 1833[ 1]

Monday. - Before His Honor the Chief Justice, and a Military Jury.

Anthony Hitchcock, John Poole, James Riley, David Jones, John Perry, and James Ryan, stood indirected for felony, by force of arms putting in bodily fear, &c., and stealing from the dwelling-house sundry articles, the property of Major Mudie, and others, at Castle Forbes, Patrick Plains, on the 5th day of November last.

The prisoners pleaded Not Guilty.

The Solicitor General opened the prosecution, and detailed the leading facts to the Jury, when he called first witness.

John Hart, assigned servant to Mr. John Larnach, at Major Mudie's house, Patrick Plains; he knew all the prisoners at the bar, they were his fellow servants; Poole, Ryan, and Riley, took the Bush on the night of the 4th of November last; Perry had absconded some days before; Hitchcock and Jones, had been sent to a lock up some days previous, and sentenced to an iron gang for twelve months, and on the 5th of November, went a way in charge of the constable Samuel Cook; another man named Parrott was sentenced with them; the witness was in the kitchen about twelve o'clock on the 5th of November, when he saw some men run to the back of the house; he ran out, and one of them presented a piece at him, and told him to keep in, and not going in instantly, snapped the piece at him; he saw Poole, Jones, Riley, Ryan, and another man, a stranger, run into the house, where they obtained a double and a single barrelled fowling piece, and a musket, and brought them out of the house; they were not armed when they went in at first; he had seen the fowling piece and musket in Major Mudie's bed-room, and the double barrelled piece in Mr. Larnach's room; he afterward saw Mrs. Larnach and servant maid jumping out of the window of the dressing room; saw Poole, Jones, and the stranger, go up and order them to stand; they forced Mrs. Larnach into the kitchen; told her to stand, or they would blow her brains out; they did not do any thing with the guns at that time; they put Riley sentinel, with a double barrelled piece, over the kitchen; witness then saw Hitchcock marching the shearers from the barn to the provision store, with a fowling piece in his hand; saw the men go into the store, but could not say how many men; Perry had a gun, and was sentry over them at the store, opposite the kitchen; witness had good opportunity of seeing what was going on; the doors and windows were open; Poole came out of the house to the kitchen, and ordered witness to deliver the two pistols; witness said he had not got them; Poole said if he did not deliver them, he would blow witness' brains out; he looked round the kitchen, but did not find them: Poole brought a chest of tea out, and put it in a bag; Ryan held the bag; they brought the tea and sugar out of the house into the yard, when Hitchcock said this is not half tea enough; they opened the bag again; witness had not then been in the house; Poole came over to ask for ammunition, and marched him before him into the house; Poole had a pistol in his hand at the time; when in the parlour, saw Poole, a stranger, and Jones; Jones had the side-board drawer open, taking the plate, table spoons, tea spoons, and forks; had an egg-stand in his hand, plated; witness said to him it was of no use to take that, he had better leave it; witness had not seen the stranger since; told Poole they had all the ammunition there was; the stranger had said he would blow out witness' brains if he did not hold his noise, and had a fowling piece in his hand; witness did not see what was done with the plate taken away, but was ordered back to the kitchen again by Poole; Hitchcock paced about all the time at the back of the house, and in the yard, and had a short musket with him at the time; witness saw them bring flour out of the provision store; part was thrown in the yard, the bag being too full; Poole brought some pork out of the store, and also took some out of the kitchen; Poole went to the datry, broke the lattice, and went in at the window; Jones got a bucket of milk out; witness could see from the kitchen to the back part of the dwelling house; Mrs. Larnach was in the kitchen at this time; witness saw the plate only taken in the parlour; no clothes; he was alarmed at first, but not after; he could not prevent the men taking the plate; he could not do any thing against three armed men; Hitchcock ordered the horses that were in the stable to be saddled, which Ryan and Perry performed; they brought out a black mare, and a bay mare, they put the tea and sugar on the black mare, and flour and pork on the bay mare; Ryan got on the black mare, and took the reins of the bay mare in his hand; they put the milk and a box of sugar in the provision store, and afterward came into the kitchen and locked up Mrs. Larnach and all in the wood store; afterward brought the night-watchman, and the post boy, and locked us all up in the wood store; placed a sentinel at the door, and said they would blow the brains out of the first that started; heard Riley tell Mrs. Larnach that he wished her father Mr. Mudie was at home, he would settle him; heard one of the prisoners say in the parlour, ``he would bring up Larnach's head, and stick it on the chimney piece; Perry remained after the others with a gun, walking before the store door; he stayed there about five minutes after the others; the prisoners were altogether about three quarters of an hour on the premises; witness remained in the store about a quarter of an hour, when he got out at the top of it; he then knocked the lock off the store door, and let all the men out; he saw the bay mare unloaded, and expecting the prisoners return, put all the men back in the store again, knocked in the staple of the lock, and in returning himself by the top, heard a gun fire; saw six men armed at the first on the premises, and Ryan had a tomahawk in his hand, which contained a knife and a saw, and was made for the gardener; witness had no doubt that the prisoners are the men who robbed the house.

Cross examined by Mr. Therry, who, with Mr. Nicholls, was returned by the prisoners. - Witness had been assigned about three years to Mr. Mudie; had a long sentence; and was not yet due for his ticket for some time, but expected it when due.  There were six or seven men on the farm due for their tickets, but had not received them yet; he was alarmed when the men came up first, but not afterward; Poole and all the others were good friends with witness; Hitchcock and Jones had been sent to the iron gang; witness could not say who was at work; he was in door servant; he did not expect any reward for being there to day; sometimes saw rations served out-sometimes were good, and sometimes ------

The Solicitor-General thought this quite irrelevant to the case.

Mr. Therry said, that if he could not succeed in proving the innocence of the prisoners, he was right in obtaining evidence in mitigation.

His Honor said, in a Criminal case like this, I must see that there is a legitimate line of defence.  If I find a line of defence is not legal, I shall stop it.

Witness resumed. - Sometimes the rations were pretty fair, and sometimes very bad; there was a great deal of punishment of the men five or six weeks ago.

Mr. Rowe. - This is quite irrelevant to the case; we cannot - we have no means here, to contradict this kind of evidence.

His Honor. - This is a prosecution ``ex officio," and not a private prosecution.

Solicitor General - We have thought it right to take it into our own hands.

Mr. Rowe. - As to the right of my being here - I need not disclose my client.

His Honor. - This is ``ex officio;" I shall not hear any but the Solicitor General.  I cannot hear you Mr. Rowe.

Mr. Rowe. - Very well; then I will shut my book.

Mr. Therry. - If I can shew circumstances, facts, and pleas, in mitigation, to obtain the discretion of the Court, I should do so.  The Colonial Act enjoins death in forty-eight hours after sentence is passed; and in dealing with such a sanguinary law as this, great latitude should be allowed in the line of cross-examination.

Mr. Rowe. - Before I leave the Court, I beg to say, that I appear here by the desire of the Attorney General, as Junior Counsel.

Solicitor General. - On this public prosecution, we have determined to take the case into our own hands.

Mr. Rowe. - I have it in writing from the Attorney General, to appear here to day, as Junior Counsel.  How can I do this, when there is an improper examination?

His Honor. - I am called off in this serious case, to settle professional disputes.  This prosecution is on the part of the public.  The Solicitor General will, no doubt, do his duty.  It would be no extenuation in the law, and therefore, I cannot allow any improper examination.

Witness. - Could not say if the men were in good health; he did not hear of any complaints; Riley was not well a short time before; he might have been sick from punishment; he came there with the others, on the 5th November; witness did not know if the men were working there on the Sunday before; did not recollect seeing the stranger before; witness was always on good terms with the prisoners; he could not resist three armed men in the parlour.

George Frost called - but was not there.  Was not subpoenaed.

Samuel Cook deposed, that he was constable at Patrick's Plains; he had three prisoners in custody on the 5th November last; two of whom; Hitchcock and Jones, he now saw at the bar; Parrott, the other man, not present, he was under sentence to an iron gang at Maitland; when about a mile and a half from Castle Forbes, five men attacked him with two firelocks, and one with a stick - a man he did not know; Poole, Perry, Riley, and Ryan he did know, and they now at the bar; they came up altogether; the strange man told me to stand; or they would shoot me; witness got his pistol ready, but thought better of it; the stranger attempted to fire, but his piece did not go off; Poole took the pistol from him; they then took the key from him, and unloosed the chain, and bound him with both hands with it; they then took him in the bush about a mile, and chained him to a tree, and left him about twenty yards.  Parrott refused to go along with them; they then took witness further into the bush; to a gulley, and chained Parrott and him to a tree; they then sat down about twenty yards off; they said they would make a grand push, but did not say where; they had two guns, and the pistol taken from witness, who got the pistol afterward at the Police-office, at Maitland; the prisoners went towards Maitland, when they left him; the strange man said what he would do if any noise were made; Parrott refused to go, and Powell would not go; he was afraid to go back; he said so; witness did not hear others threaten him; witness had lived in that quarter since 22d February last, Castle Forbes is in the district of Patrick's Plains; people call it so; had read it in books so.

Daniel Cradditch, one of the Mounted Police, deposed, to his having the stolen property in Court.  He accompanied Mr. Robert Scott in search of persons, on the 13th November last, in consequence of information received by him; there were four or five of us when we came up with the prisoners; they were in pursuit, another policeman, Mr. Scott, and his groom, Mr. Sparkes, and Mr. Larnach, all mounted and armed; came in sight of the men, and saw them run from a fire in Lamb's Valley, near to Mr. Read's cattle station; witness ordered them to ground their arms, which two of them did, and one would not; and stood ready to fire, if opportunity offered; witness shot at him; Mr. Scott passed him at the time, after witness had fired he turned his head, and saw three more men going up the gully, and proceeded after them immediately.  He ordered them to stand, which they did, and turned round and faced him; they grounded their arms; two of them, Jones and Poole, were in the gully; Hitchcock was a little on one side; Mr. Scott's groom came up to assist, only saw six men; found the boy afterward in a thick brush; had them all in charge before the boy was found; the prisoners had a frying pan on the fire, melting lead.  There were also found, a glue pot, some tea and sugar, four bags, six coats, four waistcoats, some flour and beef, and one pair of stockings; found these arms in their possession, where we took them.  (The arms, and all the articles were produced in Court.)  We then marched the prisoners off to the lock up, at Maitland, distant about eleven miles; where the prisoners were found, was distant about sixteen or eighteen miles from Castle Forbes.

Cross-examined by Mr. Therry. - The prisoners did give up without resistance; knows Castle Forbes; does not call it in the Maitland district, but Patrick's Plains; took the prisoners to Maitland; Lamb's Valley is distant from Maitland 10 or 12 miles.

Alexander Flood, overseer to Messrs. R. & H. Scott - deposed that on the evening of the 12th November went in search of the prisoners, but could not find them; went again on the following morning; the piloted the way until we came near to Lamb's Valley; witness was on foot; when he came to the prisoners encampment, they were taken, and afterwards marched down in his case, with the wounded man; the whole of prisoners at the bar were in charge of witness, who brought them down to Maitland, where he delivered them into custody; the property found had also been in his charge, and was delivered with the prisoners; there were two mounted policemen, and five of our own men, who delivered over six prisoners and the property found; the wounded man had been taken away to the nearest farm, I believe by Mr. Scott; the prisoners at the bar are the men who were taken; they behaved quietly after they were captured; the first thing found was a fryingpan on the fire, and some lead cut in pieces, some tea and sugar, and a little rum; the lead was supposed to be as ammunition; when the men were brought to witness they were without arms, they had before been taken from their persons; witness knew the guns by a private mark; the guns were charged when taken; he had tried them himself; there were eight guns - two double barrelled, four fowling pieces, one musket, and two pistols; there was one lying on the ground when witness got to the encampment; he did not mark the other things; he had told the prisoners they had behaved well after their capture, while in his charge; they were saying they were sorry at being taken so soon, but did not hear them praise or dispraise the place they had left; witness did not know what district Castle Forbes was in, had only been there about four months.

Robert Cushion, constable of Maitland. - The property was given into his charge when the prisoners were brought to him; received them from Chief Constable Riley; the property was identified by Mr. Sparkes, Mr. Mudie, and Mrs. Dutton; witness did not know Hitchcock before.

Robert Scott, Magistrate, Hunter's River - deposed to his having gone in pursuit of a party on the 12th and again on the 13th day of November; he got some black natives, and from information traced the prisoners to Mr. Dutton's, when he found that seven men had robbed his place the evening before; he went in the direction they had gone, and about 12 to 1 o'clock fell in with footsteps, when instead of keeping Lamb's Valley, turned into a deep ravine, saw smoke, and concluded that prisoners were there; saw one man running down into the ravine as though he were sentinel; after seeing this man, charge was made; we galloped up the ravine, followed by the footmen; witness was at first dismounted, but stood second; he then saw Gradditch fire at one man; witness heard the other men, and got beyond and above them; in dismounting he fell, and turned to the men; three men entered, one of them holding a musket in his hand; witness covered him, and commanded him to lay down his arms, but he would not, and witness shot him, and he staggered, let go his gun, and fell; witness then sprang to the other two men, who had laid down their arms, covered them in the same manner while they obeyed, and immediately a Mounted Policeman came up, and witness' second overseer, Wattle, came up behind the prisoners, and held a pistol to them; two more servants to witness came up immediately afterwards; going off the rock into the ravine, saw two other men in charge of Gradditch, Mr. Sparke and others; Gradditch had called out, ``Ground your arms," before he fired at all; he, had in custody Jones and Poole; after securing the men, witness went to look after the wounded man; all the prisoners were there except Perry, whom witness saw at the Bench at Maitland; he was positive as to the six men, and one left behind wounded; witness marked all the arms, and those in Court were the same; he helped to pack the other things, and his overseer and Gradditch gave them in charge with the prisoners; Castle Forbes is part of Patrick's Plains - is part of the plain itself; prisoners gave themselves up instantly by holding up their hands; witness had seen some of them repeatedly, but Perry not before; some of them often at the Bench at Patrick's Plains; had seen Riley often there for punishment; the district of Patrick's Plains contains about 400 square miles; there are particular Benches to particular districts, by the arrangements of the Magistrates themselves.

John Larnach - deposed that he lives at Castle Forbes, in the district of Patrick's Plains; that he was not in the house when the attack was made on Tuesday morning the 5th of November; he did not hear of the robbery till the next morning, when he he missed fowling pieces, silver plate, and wearing apparel, which were in the house when he left it, consisting of one double and one single barrelled fowling piece, one common musket, some silver table spoons, tea spoons, forks, and silver jug; he missed these things on his return; the double barrelled piece was his property, the plate, single barrelled piece, and dwelling house, belonged to Mrs. Mudie; these two waistcoats, and this body coat are Mr. Mudie's.

Cross examined by Mr. Therry. - Castle Forbes is in the district of Patrick's Plains; that is the name it goes under; some of the prisoners were at work the day before; no other reason to suppose that the attack was for plunder; he did recollect a letter; he knew there was not time to get it from Castle Forbes since Friday evening last.

By Mr. Nichols. - 24 hours notice not sufficient to produce a letter at that distance; witness did intercept a letter addressed to Mr. Hely, Superintendent of Convicts.

His Honor said that he could not admit a letter - that evidence would not be admitted from a prisoner.

Witness. - The sideboard is in the parlour; the plate was in the sideboard drawer; the private store is under the same roof (Here a plan of the building was introduced.)

Mr. Therry. - Where did that plan come from?

Witness. - There was tea and sugar there in the morning; he missed on his return three quarters of a chest of tea, and from 50 to 60 lbs. of sugar; was quite sure as to the guns being the same; saw them taken from the prisoners.  Witness described the plan of the buildings.

John Hart, recalled. - He identified the three guns.

Mr. Therry for the defence said, he would rely on those points which he thought were strong.  It was necessary to prove that this was the house of James Mudie, and not James Larnach; and if so, whether it were situated in the district of Patrick's Plains.  On that point, he thought there was a decided failure of proof.  The slightest variance in the indictment and evidence, in felony, must be fatal.  The rule was the same in civil as in criminal cases.  If no such place as described is in the country, the variance is fatal.  The vital point of the case - putting in bodily fear - it appeared that John Hart was not alarmed at any of the prisoners, he was alarmed only by the stranger.

His Honor. - Two witnesses have shewn that Castle Forbes was in the District of Patrick's Plains; any false description was held to be fatal, but the point as to bodily fear was here matter of evidence.

The prisoners being called on for their defence, severally stated, that by the bad treatment, flogging, and bad provisions they had to endure, they were driven to desperation, and brought to this unhappy end.

John Poole, one of the prisoners at the bar, said he hoped the Court would consider the case of the boy Ryan, who was seventeen years of age - they had forced him with them to prevent disclosures.  He (Poole) had written the letter to Mr. Hely, complaining of their horrid condition, but it was intercepted.

Mr. Therry stated that he had six witnesses to call for their defence, but as their testimony went to shew or corroborate what the prisoners had stated, and this course being objected to, he must yield to the judgment of the Court.  If he produced a correct sketch of Castle Forbes, he thought it would be found not to be in the district of Patrick's Plains - not the passage from the stores to the dwelling house to be a covered and enclosed passage, as averred in the information, but a covered and unenclosed passage.

Samuel Augustus Perry, Deputy Surveyor General of New South Wales - stated that it was the duty of the Surveyor General to submit all plans and divisions of the Colony to the Council for approval - this map is the official map; the field maps are materials from which this map is made - they are sketches; the names of districts are arbitrary; the district alluded to might be called the Wollombi - or in a magisterial sense, Patrick's Plains; districts have been little used; he should call it the district of Hunter's River, in the parish of Whittingham; if it was mentioned to him as the district of Patrick's Plains, he would know it as such.

His Honor then addressed the Jury, and recapitulated the evidence.  The prisoners were all young men - one, indeed, was a boy.  They were all charged before the Jury, with felony, stealing in a dwelling-house, and putting in bodily fear.  The Jury would separate from this case, all extraneous matter.  The line of defence is not legal proof - whether probable or improbable.  The prisoners were charged with larceny in the house of Mr. James Mudie.  He is the person who has been violated - the laws have been violated - he is but the mere person in whom the law has been violated.  The question was, whether it was brought home to the prisoners in this violation.  The Jury would dismiss from their minds, all extraneous matter, and decide on, whether, or not, the prisoners are guilty of the offences with which they are charged.  The law states, that if any person shall steal chattels in a dwelling house, and put any person therein in bodily fear, they shall suffer death.  Any part of such dwelling-house shall constitute the offence.  No place shall be termed a dwelling-house, although some person sleep in it, unless attached, or forming part of it.  The fact of bodily fear, is like other facts.  With respect to the degree of fear, there may be actual fear out of the presence of the party; but the Jury would consider, if John Hart were in such circumstances of terror, the prisoners being armed - although his fellow servants - or, that degree of constructive fear, by the pressure of overwhelming force, accompanied by words or threats.  There was a great deal of corroborative evidence to connect the prisone[r]s with the original offence.  The place forms the essence of the guilt of the offence.  There appeared to be proof that it was within the district of Patrick's Plains.  The case was in the hands of the Jury, who had all the evidence before them, and they would come to a careful and dispassionate decision.

The Jury retired for some time, and on their return, pronounced all the prisoners Guilty.

The Solicitor General said, he had another information against the prisoners - but the Court deferred the trial until the next day, on account of fatigue undergone, and the lateness of the hour.

 

 

Forbes C.J., 10 December 1833

Source: Sydney Herald, 16 December 1833[2 ]

 

Tuesday. - Before His Honor Chief Justice, Forbes, and a Military Jury.

Anthony Hitchcock, John Poole, James Riley, John Perry, James Ryan, and David Jones, were placed at the bar under information of the Attorney General, for shooting with intent to kill John Larnach, or to do him some grievous bodily harm, and with aiding and abetting in the same.

The Solicitor General opened the case, and called

John Larnach, who deposed as follows - I reside at Castle Forbes, Patrick's Plains, Hunter's River, in the house of Mr. Mudie; on the 5th of November last, I was sheep washing at some distance from the house; about twelve to one o'clock I heard a loud voice calling to me, ``Come out of the water every man of you, or I'll blow your brains out;" on looking round I observed a number of men, three of whom were coming with guns, pointed to me, the others seemed to be so placed as to intercept me if I attempted to escape; I do not know how many men, but three came with guns pointed to me; Hitchcock and Poole, were two of the three coming towards me with their guns pointed towards me; Hitchcock said it was of no use for me to attempt to escape, he would take care that I should never take another man to Court; they were ten or twelve yards from me; there was a general call to the sheep washers to get out of the way; if he had fired at me, he might have struck them; Hitchcock was calling out against the men for not getting out of the way; on seeing them proceed towards me, I told the men to stand; I got into the river up to my waist; a few yards from the washers; a gun fired; I should have said before that, I saw Hitchcock's gun leveled, and smoke round him; Hitchcock said to the washers ``Why don't you get out of the way, I would have shot him before now;" I have no doubt he fired; the others were some yards off; there was a general cry among the bushrangers ``Fire again - shoot the b--;" Poole called out ``Fire again - I'll take care you shall never punish another man;" a second shot was fired just as I was getting on the sandy beach; I was not hit; from the wet state of my clothes, and my boots being full of water, I fell; Poole and Hitchcock called out ``Fire again, let us finish him;" a third gun was fired; as I was going up the banks, they cried out ``he is almost finished, fire again;" another said ``don't - but take care of your ammunition;" I saw Ryan on the top of the opposite bank, and heard the voices of Perry, Riley and Ryan: Ryan was dressed in a white shirt and white trousers; I did not see him in the morning; he had absconded over night; I do not recollect seeing Jones there at all; Hitchcock was in my service; the others were in the service of Mr. Mudie, except Jones, who was in the service of Mr. Spark; Jones, I did not see; Hitchcock, Poole, and Ryan, I saw; the others I did not notice; Hitchcock and Jones had been in charge of a constable that morning on their way to an iron gang; Ryan, Riley, and Poole, had absconded, and Perry absconded about ten days before; I had, I think, fourteen men in the river; I generally have that number washing sheep; three of the men, Wilson, Marsden, and Sawyer, are here; Wilson and Sawyer, were in the water at the time referred to; I got on the top of the bank, and left them with the sheep washers; I went to Mr. Dangar's house, and did not return to Castle Forbes till next morning, when I missed some guns, and a horse; I missed three guns; they were loaded with buck shot when I left them in the house; this shot is the largest next to ball; I should think I was about ten yards from Hitchcock when he fired at me; he got nearer to me when I was in the water with the washers; the third person I did not recognize; I fell from the wetness of my clothes and my boots; I saw the second shot fall when getting out of the water; the first shot appeared to fall in the water; I am quite sure I saw the shot fall in the water; the shot spread three feet from me; the second shot fell within eighteen inches to two feet of me in the water; they were about twenty yards from me when the second shot was fired; I am quite sure that the shot would kill a Kangaroo at the distance of twenty yards, and might also kill a human being.

Cross examined by Mr. Therry. - It was on a Tuesday this happened; there were no prayers on the Sunday previous; we have read prayers, but the men would not attend; cannot tell how long since they were read; Hitchcock was within tend yards when he fired; he might have been a bad shot, or have had no intention to shoot me; I was frightened certainly; I cannot tell his intention; he did not hit me, that's all I can say; my attention was directed to the three men, I think I did say about the shot in the water before the Bench; I think it is likely; I am inclined to think I did but I don't think it is material; the first deposition was taken two hours after at Mr. Scott's; my back was to the second shot; if they had followed me I think I could have ran as fast as them; I can merely answer that they did not follow me; they did not chase me; I cannot tell whether the men in the water obstructed the others; they said I should never flog another man; they said ``you will never take another man to Court;" they have all been taken to Court and flogged; I do not think Riley was taken to Court within three months.

The Solicitor General objected to this mode of examination, and said Mr. Therry was instructed by some persons not in the Court.

His Honor said, that the province of cross examination was very wide indeed; but admitting that the men had been harshly used, that could not justify the course they took.

Witness. - I supposed that from their situation and expressions, they meant to take my life; it was not shot to shoot ducks; I never went with the guns; I never sent a man to shoot; Poole, Ryan, and Hitchcock, I saw; I heard the voice of Riley, but not Jones; Poole, when nearest to me, was about twelve yards; I am not aware of any other statement made.

Mr. Therry. - Physically and morally impossible - perhaps you do not know the meaning of this ``physically, and morally?"

Witness. - Perhaps not; I had better get some information from you!

Mr. Therry. - I call on the Solicitor General to explain what he means by ``instructions from persons not in Court?"

His Honor. - I cannot permit this.  I regret such expressions.  I know of no difference in this, and ordinary cases.  In the mother country, prisoners are allowed to employ Counsel to assist them.  It is rather too much to say, that persons not in Court have given instructions.

Mr. Therry. - I disclaim it altogether.

Solicitor General. - I can justify what I have said, if demanded.

John Sawyer, assigned servant to Dr. Rutherford. - My master went home; I was lately transferred; I was present washing sheep on the 5th November; the river is about 100 rods from the house; I was in the water; four men, now at the bar, came up and made a great noise; there were five men, but four of them I know - Hitchcock, Poole, Perry, and Riley; Hitchcock was getting over the fence with a gun; he said to Mr. Larnach, ``Come out of that, you villain," and told the men in the river to stand back; he did not mention any name; I understood it was him; he told the men to stand back out of the way - ``You stand back out of the way there;" he fired a gun at Mr. Larnach, but missed him; he moved his arm for me to get out of the water; I was looking at Hitchcock when he fired; he did not say any thing else to my knowledge; John Poole was the next man; his piece was on the fence; he cried out, ``You villain, you tyrant, I'll make you remember flogging, I will, you tyrant; he fired; Mr. Larnach was nearly out of the water when he fired; I did not hear Poole say any thing after that; James Riley said to Darby, ``I have a good mind to come and blow your brains out, I have, you villain;" I don't know what he meant; there were three shots fired, but I don't know who fired the last; it was in about half a minute from the other; I was looking at Hitchcock when he fired at Mr. Larnach, who was making away; I don't know whether there was shot in the guns; they said nothing till they were going away; Riley said, as he was going up the bank, ``If any man goes up the bank for two hours, he will have his brains blown out;" there was a strange man; I did not see Jones or Ryan there; I saw Hitchcock, Poole, Perry and Riley: there is a high bank and railing on the top of the hill; I could not know any person on the other side of the fence, except he was close to it

Cross examined by Mr. Therry. - I should think Mr. Larnach was about 50 yards from Hitchcock when he fired first time; I would not believe a person who siad 5 or 10 yards only, unless it was measured; every man's guessing won't be alike; I don't know how far duck shot will carry; there was nothing to hinder pursuit of Mr. Larnach, if they pleased; I am a prisoner; I said about 50 yards, 3 feet to the yard; the water was not twice as broad as this court; Hitchcock was perhaps 25 yards from the water when he fired; the hill is very steep down to the water; I did not know whether there were shots, or whether they touched the water; I cannot tell the distance y this court house; Hitchcock was not twice the length of this court from Larnach; I know distances at ploughing; I should think Poole was 70 yards when he fired; I should think Hitchcock was 50 yards when he fired.

Mr. Therry said Mr. Larnach was in court during the evidence of last witness.

His Honor said, when men are tried for their lives there is no respect of persons.  (Mr. Larnach retired out of the court.)

Samuel Marsden. - I am assigned servant to Mr. Larnach; I was throwing the sheep into the water to the sheep washers, when I heard a noise and a voice, ``Stand in the water, or I'll blow your brains out;" cannot say who said it; Hitchcock said to Mr. Larnach, ``Come up here, you villain - you tyrant, come up here," Mr. Larnach jumped into the river, behind two men; I saw Hitchcock with a musket - in his hand, pointed towards Mr. Larnach in the river saw Hitchcock fire; he was distant about 20 or 30 yards from Mr. Larnach when he fired; Mr. Larnach was better than half way over the river when he fired; Hitchcock said, ``Fire, you b---s, fire!" none had arms but the men who came with him; I saw a strange man fire; he is not here; there were three shots fired, but I cannot say who fired the third; the strange man was in the sheep yard when I saw him fire; he might be 14 or 15 yards off; I did not see any shot from the fence; I heard Hitchcock say, "Let us follow the b---y, and finish him, it will be none the worse for us," Riley had a pistol in his hand, and said to Darby, "I'll blow your head off - you are a

b---y old rogue," I saw Hitchcock, Riley, Perry, and Ryan, on that day, but did not see Jones, or Poole; I might have seen them, if there, at one part of the fence, but not at the other.

Cross-examined. - I did not hear the expression, ``You tyrant;" the expression from Poole was, ``I'll learn you to flog me;" I came in for flogging; not many escaped; I heard three shots; I did not see Poole, or Jones; there was nothing to hinder their following Mr. Larnach across the river; I cannot tell whether they meant to kill him or to frighten him; after three shots fired heard them say, ``Let us follow the b---, and finish him."

William Wilson, assigned to Mr. Mudie, at Castle Forbes. - I go by the name of Darby soemtimes; recollect washing sheep in November last; I heard some voice, ``Come up here, you scoundrel; saw Hitchcock the other side of the fence; he had a gun in his hand; he presented it towards master, and fired - pointed towards the river, where Mr. Larnach was; I saw the fire; I saw Poole fire afterward from the other side of the fence; he held his gun in the same direction; Mr. Larnach had then nearly got out of the water; I was about 15 or 20 yards from the party; heard Poole say, before he fired, ``I'll learns you to flog;" heard no names; I think he said this to Mr. Larnach; Hitchcock was about 25 yards from Mr. Larnach when he fired at him; I saw Hitchcock, Pole, Perry, and Riley; I did not see Jones, or Ryan; there was a man in the field at a distance which I thought was Jones, but could not say; he appeared to be standing on something, or sitting on a horse; he did not appear to be on the ground; I said same things before the magistrates; I saw a man I thought to be Jones, but I can't swear.

Cross examined. - I heard one say, "I'll make you remember flogging;" there is a great deal of flogging going on; that is what I thought was meant; I consider if they meant Mr. Larnach injury the would have followed him; I say, no - they did not intend him any harm; my reason is, that they did not follow him.

John Hart, assigned to Mr Larnach. - I saw all the prisoners at Castle Forbes, on the 5th November; they got there a double-barrelled and a single-barrelled flowing piece, and a musket; I can't say, if they were charged or not; the last time they were charged Mr. Larnach did it - no one else had used them; five days before, I saw them loaded with small shot for birds; before they left the house, they took the guns out of Mr. Larnach's, and Mr. Mudie's bed-rooms; I don't know whether they tried them or not; they took the guns without leave; I heard Riley say they were going down to the river, to settle Mrs. Larnach's husband, and one said he would bring his head up, and place it on the chimney-piece; they were five men first, and other two afterward; they stayed about three quarters of an hour before they went away; they locked us all up in the store, and said, when going away, they would blow the brains out of any one who stirred; I heard a gun fire after they were gone - I only heard one gun; I was getting into the store when I heard the fire; the store was closed below; could not tell in what direction the report came.

Cross-examined by Mr Nichols - I heard one gun only; cannot say in what direction; one person had said, he would bring back Larnach's head; cannot say whether guns were loaded or not.

Alexander Flood, overseer to Robert Scott. - I went in pursuit with Mr. Scott; I was present when prisoners were apprehended, on the 13th of November; the whole of them were left in my charge; they began to say they were sorry to be taken so soon; they intended on Thursday to go to Mr. Mudie's and creep up the creek; - (this line of evidence was stopped by His Honor;) - I did not hear them say what they had done to Mr. Larnach; the arms were delivered to me with the men; these are the guns. (The Crier of the Court exclaimed, in great trepidation, "Those arms are all loaded!"  His Honor said it was improper to bring them loaded into Court - the pistols we don't want.  They were loaded also.)

Cross-examined by Mr Therry - I saw some of their backs had received a flogging; they behaved, when taken, very well.

George Sparke. - I live at Rusham, Patrick's Plains; I saw all the prisoners at my house in November; they did not speak of what they had done; I heard Hitchock say, on the day he was taken, "that he had take good aim at Larnach's head, but had missed the

b---r;" I understood it to have related to what had passed; they were all sitting under a tree, and not half an hour after, they were taken; I was present at their apprehension; they were in a gully; there were fire arms near where they were taken; I saw the guns handed to Flood; there are the same.

Cross-examined by Mr. Therry. - Flood did not hear this?  He was present.

Mr. Larnach recalled. - This is one of the guns from the house; this is another, double-barrelled; I can identify three, with the musket; these are the guns I missed, and saw taken from the prisoners; they were all charged with buck-shot.

Cross-examined by Mr. Therry. - Three or four days before, the guns were charged by me; Mr Mudie was not on the farm; I generally examined the guns daily; I'll swear they were charged the night before; I mean to persist that it was buck shot; also, that the distance was about ten yards.

John Hart recalled - I know these guns; two were taken that day, and one before; it was about half a mile from the house where the sheep were washing; I did not see any of the men after except Perry.

Mr. Therry. - I see no evidence to charge Jones in this matter. He is not described as being aiding, or abetting; he was merely seen in the morning.  There must be some evidence to show that he was aiding or abetting.  There was none to charge him as accessory in the first degree.

His Honor - One witness thought he had seen him on a horse - but the evidence was very slight.

Mr. Therry - I have six witnesses here for the prisoners; but I am not permitted to call the.  Your Honor has over-ruled the evidence.

The prisoners then, as in the former trial, severally spoke, and attributed their present awful state, to the ill-treatment, flogging, bad provisions, and short weight received of their masters, which had driven them to desperation.

Lieutenant Zouche, one of the Jury, rose and was sworn. - I knew Hitchcock; I considered him a well-behaved man;' he slept under me at the Police-office-under my quarters; I considered him a trustworthy man; I believed him to be incapable of committing this act.

His Honour summed up the evidence with great attention to the details.  Hitchcock and Poole were charged with shooting at John Larnach, with intent to kill him, or do him some grievous bodily harm.  The other prisoners were charged as aiding and abetting therein.  The jury would dismiss from their minds, all irrelevant matter, as being no part of the prosecution.  What the prisoners had stated, was no justification to them.  They had  become so reckless of life, that it was no defence.  The Jury would consider, whether, or not, from the evidence, the prisoners were guilty of the charge.  Jones, in law, could not be there, unless seen and identified.

The Jury retired, and after some deliberation, returned, and pronounces Jones, Not Guilty; all the other Prisoners Guilty.

The Solicitor General then said, I have another information filed against the prisoners.

Mr. Therry, - The prisoners withdraw their plea of Not Guilty, and now plead Guilty to that information.

His Honor. - Their own confession is like judgment passed.

Hitchcock said, he had one thing to ask His Honor, that, as they had but a short time to live, he hoped, they would be granted a few hours in the cell, to prepare themselves for a future world.  There was such a noise and bad language going on in the prison yard, that they could not do it.  He hoped, that they would be spared a few days, for preparation.

The Solicitor General said, I shall not proceed, although I have two other indictments.  I do not press for judgment under the Colonial Act, but leave it in the breast of the Judge.

Mr. Therry prayed extension of time.  The witnesses were under the protection of the Court.  There is a Tribunal of mercy where they may be heard.  I request that they may be detained for two days.  There is a Tribunal at which the mitigatory evidence may be heard, I bet to say, that I have not received instructions from any persons but the prisoners.

Poole, again begged the Court, to consider the situation of the boy Ryan, who had been forced to go with them.

His Honor then addressed the prisoners in a most solemn and feeling manner; and after remarking on the enormity of their offence, proceeded to pass the awful sentence of death upon them.  They were to be executed on a day, when it pleased His Excellency the Governor to appoint.[3 ]

 

Notes

[1 ] See also Sydney Gazette, 10 December 1833.  See Australian, 6 December 1833, on prior proceedings.

In 1832, the New South Wales Legislative Council passed a new statute to regulate convict escapes and rewards: see Australian, 20 April 1832.

There was also a new statute in 1832 to regulate the summary trial and punishment of convicts in New South Wales: see 3 Wm 4 No. 3, Sydney Herald, 29 October 1832, Sydney Gazette, 6 September 1832; and see a Circular to Magistrates, 24 September 1832, in Forbes Papers, Mitchell Library A 1381, Reel CY 986 (near the end of the Forbes Papers).  On these changes, see also Australian, 31 August, 7, 14 and 21 September 1832.

This is one of the most famous cases of convict New South Wales.  Mudie was notorious for his allegedly extreme attitudes to convict discipline.  When the defendants in this case were found guilty and hanged, it led to a public outcry and to a government inquiry into conditions at Castle Forbes, Mudie's property.  Mudie was effectively exonerated, although Lanarch was censured.  The editor of the Sydney Gazette, the ticket of leave holder, William Watt, continued to campaign about the issue.  Eventually, Governor Bourke, whom Mudie accused of being too soft, omitted Mudie from the list of magistrates, in effect dismissing him.  Mudie decided to leave for England, to plead for justice.  While there he wrote a book, The Felonry of New South Wales (ed. W. Stone, reprinted Lansdowne Press, Melbourne, 1964) which expressed his own rigid view of convict discipline.  His attitude is shown by one short passage (p. 131) in which he accuses Forbes C.J. and Roger Therry (counsel for the defendants, and a later Supreme Court judge) of being members of a convict faction.  At p. 151 he referred to ``what a sink of corruption and iniquity, detestable profligacy and disgusting filth, is presented by the whole system of the law courts and the actual state of the legal profession, in New South Wales."  (Background information from Stone's preface to the book.) 

See also Mudie v. Howe, 1836 for a continuation of these controversies.

For another convict escape case, see R. v. Charters, Hickey, Smith and Jacock, Sydney Herald, 5 September 1833

[2 ] See also Australian, 13 December 1833; Sydney Gazette, 12 December 1833.

[3 ] Perry, Riley and the young James Ryan were hanged on 21 December 1833: Sydney Gazette, 24 December 1833; Australian, 23 December 1833. The Australian, 23 December 1833, stated that there was more sympathy for these three men than at any other execution its writer had attended.  Many expressed bitter feelings about Mudie and Lanarck.  Hitchcock and Poole were sent to the Hunter River, to be executed there: Australian, 20 December 1833.  Jones was sentenced to transportation to Norfolk Island for life: Stone's Preface to Felonry of New South Wales, p. ix.

Published by the Division of Law, Macquarie University