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

R v Kaines [1833] NSWSupC 101

highway robbery - Bathurst - convict escape - perjury - convict road gangs

Supreme Court of New South Wales

Dowling J., 12 November 1833

Source: Sydney Herald, 18 November 1833[1 ]

Tuesday. - Before Judge Dowling, and a Military Commission.

Michael Kaines was indicted for an assault and robbery on the King's highway, on, and from the person of James Podham at Bathurst, on the 9th day of August last, and stealing from him one waistcoat, two sovereigns, twenty shillings, three sixpences, and three copper pennies, the current coin of the realm; to which the prisoner pleaded not guilty.

Prosecutor stated, that on the day named in the indictment, he had been to receive some money due to him in the neighbourhood, and that he had in his pocket the sum of £3 1s. 9d..  On returning home, he saw two men rush towards him, one he recognized as Patrick Burn (who is not yet in custody), and the other was the prisoner at the bar; Patrick Burn had in his hand a kind of square stick, and the prisoner carried a shingler's hammer; Burn on coming up to Prosecutor, felled him with a blow from the stick, with his face downwards, and he thought prisoner cut him with the hammer on the eye; prosecutor cried out ``take all the money I have, but spare my life;" he then became insensible; on getting home he informed his wife of the robbery, and she gave information to the authorities; he knew the prisoner, saw him shingling the Commissariat House at the Stockade previously, and had often seen him in the Bridge-gang at other times; he never saw him from the time of robbery until he was apprehended five or six weeks afterwards, before the Magistrates; he absconded from the gang the day after the robbery.

The prisoner (who was very shrewd and lengthy in his questioning all the witnesses), declared that he had never seen the prosecutor before, and said to him ``you are taking away my life in the wrong."  At what hour did this robbery take place?  Prosecutor replied, about five o'clock in evening.

Prisoner. - Did not you swear that you sent your wife to take Burne, the bullock-driver, and another?  Do you mean to say before God and this Court, that I cut you with a shingling hammer?

Prosecutor replied, you had the hammer when you attacked me, and Burne had a stick four square, with sharp edges, which might have produced the wounds; both Patrick Burne and the prisoner absconded from the Bridge gang that night.

Prisoner exclaimed, Ah! you want to take my life.

Prosecutor. - No, I do not wish to take your life, but I know you was very near taking mine; there was no other man shingling at the Stockade; the men who attacked me were before me; neither of them spoke a word; I saw the man who struck me first; they both rushed out from behind the Bush; I saw them both together; not half a minute; I had an opportunity to see their faces before I became insensible; I am not mistaken at all; that is the man (pointing to the prisoner) - that is one of them.

His Honor. - His life is at stake.  Do you believe positively that he is the man?

Prosecutor. - I do, positively.

Ephraim Whiting examined. - I am principal overseer to the Bathurst bridge party, which is similar to a road party;[2 ] I know the prisoner, he was under me in that party in August; till the 9th, when he absconded from me; I missed him on the following morning, on the 10th, and then reported him; I saw him the previous evening at nine o'clock at muster; Burne was not at that muster; he absconded, and I have never seen him since; I heard of the robbery on the morning of the 9th; prosecutor sent a boy to me who brought the word; I went to him, he had a handkerchief round his head; he said he had been robbed by two men, one was a bullock-driver of mine, named Burne; he did not describe the other; he told me to see if I could get Burne, and get back part of the money, as he was a poor man; at this time I had heard nothing about prisoner as a shingler, or I could have taken him; I returned back and never saw Burne since; the prisoner was at work at the Junction three miles from them, and was shingling there, and had a shingling hammer; there were four or five men there; I told them that a man had been robbed, but not to prisoner particularly; I missed him the following morning; when I heard of prisoner a month after, he was taken at Parramatta.

Samuel Horn examined. - I am assistant chief constable at Parramatta; on the 14th of August last, about two o'clock in the afternoon, I went into William Ellison's public-house, and saw prisoner on the form, I was informed that he was at large, and charged with highway robbery; he said he belonged to Parramatta Barracks, had come down the day before from the Junction on pass, and had left it in the Surveyor's Office the day before; I took prisoner in charge and confined him in the Watch-house until I ascertained the fact; I found his statement false; on taking him in charge, I took a shingling hammer from his person, two knives, a gimblet, and a leather bag, with threepence or fourpence in copper from his pocket, stripped him and searched all his clothes, which were of no great value; I think he had on a blue jacket, black hat, and cotton shirt; there was another shingler with him; the tools appeared recently used; they were not rusty; he gave no other account of himself, but said his name was Kain, or Kains; he was not insolent, nor did he make any resistance.

William Mitchell, dispenser of medicines at the Stockade Hospital. --- Prosecutor called on me in August last; he came to get dressed; he had three small wounds at the back of his head, and a larger one over his left eyebrow; he did not appear to be very ill; the wounds at the back of the head were each about three inches long; I dressed his wounds twice, and gave him plaister to dress himself afterward; in three weeks he appeared to be well; he might have lost some blood over the eye, but the other wounds were only skin deep; he did not report to me that any of his ribs were broken; I think he told me there were three men in the robbery, but am not quite certain; (hammer produced.)  Prisoner desired witness to hold up the hammer.

Witness. - I expect if a man struck with this hammer with all his might, it would produce instant death.

His Honor. - It depends on the thickness of the scull, I suppose?

Witness. - The scull was not broken; he saw prosecutor four or five days after the robbery, he never mentioned prisoner's name.

His Honor. - Could prosecutor have walked to the camp?

Witness. - He was riding twice when he came to me - not walking.

Prosecutor recalled. - This hammer is of the same description as the one I saw with the prisoner.

No more witnesses being called for the prosecution, His Honor told the prisoner if he had any witnesses to call them.  The prisoner said he would call William Ritchie, James Dew, and Martin McDurmott.  W. Ritchie was then called, but could not be found.  The principal overseer here stated, that Ritchie was with him all the afternoon and evening of the robbery, and knew nothing at all about it.

James Dew, assistant overseer called, who stated that he went to prosecutor's house, and Mrs. Podham asked him to muster the gang; Mr. Podham was not in bed; he was bleeding from the head; he said two men of the gang had stopped and robbed him; he did not say who they were, but he knew them; he spoke very low; this was about twenty minutes before six o'clock; he had just come at this time; he said two of the gang, but did not say which gang; Mrs. Podham put him to bed; I had no conversation that evening; I saw him two nights after; I do not recollect any one's name being mentioned at all.

Prisoner. - Did he speak as if he knew you?

Witness. - He was sitting with his head low, I don't know how prisoner came to know this.

Prisoner. - As you saw him, can you say if he was drunk or sober?

Witness. - Something in both; could not say whether all from drink or the blows; he was bleeding when I saw him from two or three wounds; I saw the wounds; there was a cut over each eye, and three on the crown; I think there were five cuts; he was not in a state to walk to the bridge party, I should think.

Martin McDurmott called. - I am assistant overseer in His Majesty's Lumber-yard at Hassan's Wall; I knew nothing of Podham's robbery in the evening, I went to Rossthorne's; before I got there, I saw Mr. Podham in Cox's house, apparently intoxicated in liquor; about four o'clock in the afternoon of the same day he was robbed; I proceeded about a mile forward, when I met two men, one was tall, and the other a thick stout man; they asked me if I had met any body; this was about two miles and a quarter from Podham's house; one asked me if I had seen Podham, I said yes, at Cox's; one had a short stick with a feather edge on one side, and thick on the other; the other man had nothing; I went to Rossthorne's one mile further; going over the hill and down the gully I met the prisoner with three Newspapers under his arm, about a quarter of a mile from his camp; he appeared to be coming from the jungle; I did not speak to him; he was then on the verge of the pathway leading to his camp; I returned home about six o'clock, and heard of Mr. Podham's robbery; it was a current report through the camp; the prisoner has often come for nails to the Lumber-yard; he is called the shingler.

Examined by the Solicitor General. - I went to Rossthorne's on my own business; I am a blacksmith; I made part of a plough, &c., for him, and charged him £[?]; he was to pay me in property; I had one pound of tobacco of him that time.  What time did you leave your house? about four o'clock; I was close to the prisoner; I did not speak to him; I was absent without leave, and my time was urgent; not a word passed between him or me that day; I never saw him but once since, and then he was under escort; I could not guess where he got the papers; Cox's is the house of a retired Soldier; just got a glimpse as I was passing; Podham was asking Mr. Cox for drink, and pulled money out of his pocket and said ``Do you think I have not the money?" the two men I met asked me if I had seen him; I observed the stick, many such are used there, one side had a feather edge; any stick will cut a head; the gang work from six to six in the summer, and seven to five in the winter; I first got acquainted with prisoner at Portland Head; he was shingling at Mr. Owen's house there; he had no irons on; I met him afterwards at Parramatta; he told me he was going to shingle gentlemen's houses at the Junction; somebody told me that prisoner had received a letter in the lock-up, from a man named Michael Burne; he was taken from me on Thursday night, and another man; I said Mr. Podham was in Cox's house asking for liquor; Cox had black trousers on, no hat on, no coat, I believe a coloured shirt; I cannot say what Mr. Podham had on, but I think a straw hat, and blue jacket; Podham said to Cox give me a gill of rum; he might have said half a pint, or more, but I am not certain; Cox made answer, and said, I have got none; Podham said, ``you think I have no money to pay for it?"  he appeared to me to put his hand in his pocket apparently to pull out some money; I did not see any money; this all occurred in the time I passed by the house; there was no person with me; it might have been about four, or quarter past four, or a quarter before four, or half-past four, or from that to five o'clock; I met the prisoner about an hour after that, distance about two miles; I did not take notice of prisoner's dress; a man might go from thence in five minutes to the camp.

The Solicitor recalled the Prosecutor. - I know McDurmott; he lives about a quarter of a mile from me, in the gang; I did call at Cox's on my way home; I called in to get my pipe lighted, and a drink of water; I stayed there from five to ten minutes; I was in the first room as you get inside the door; I drank nothing but water; I was sober when I went in; I did not ask Mr. Cox for a gill of rum, nor any rum; I did not say to him, I suppose you think I have no money; I cannot say whether I did, or did not put my hand in my pocket; he does not sell spirits; has no license; I did not see McDurmott pass; this was about a quarter before five o'clock; I do not recollect how Mr. Cox was dressed; sometimes he wears one dress, and sometimes another; I did not ask for rum; I do not think that a person passing by could hear conversation in the house; I have only reason to suppose that there were but two persons concerned in robbing me; when I was down insensible, I could not tell what happened; I have no doubt; I am certain the prisoner is one of the men.

Prisoner here exclaimed - Are you not swearing before God?  Have you not children of your own?  Prosecutor. - I am swearing nothing but the truth - what I have sworn is nothing but the truth.

Prisoner. - You have sworn my life away.

Prosecutor. - You were about as far from me as you are now, when you came out upon me, I know you perfectly well.

His Honor then asked the prisoner if he had any thing to say in his defence.

Prisoner. - I had been two years on the mountains without any indulgence; there were fifty men sent for down, and I wished to go to Sydney.  On applying to the Inspector, he said no, I have better marks than you, meaning I suppose, that some others could give him money.

His Honor said no man shall slander another behind his back.  If three men had been named in the indictment, or by the prosecutor, as having been engaged in the robbery, I should now put one of the witnesses at the bar from his locality, and the nature of his evidence.

His Honor then addressed the Jury in the most solemn and distinct manner, marking emphatically every important feature of the evidence; and said, the prisoner at the bar is as much a King's subject, and his life as valuable as the highest man in the realm.  The prosecutor was assaulted and robbed by some person or persons by the fullest testimony.  He swears positively to the prisoner at the bar.  If it depended on his testimony alone, you might have doubt, he having so short a time to know the persons; no opportunity to see them after the assault.  This took place about five o'clock in broad day.  He says he knew prisoner well, who slept once at his house.  Other circumstances after the robbery were to be regarded; Kains, the prisoner, absconded on the night of the robbery, and was afterward found at Parramatta, where his statement to the constable was entirely false.  The prosecutor swears in the most solemn manner, that he knows the person of the prisoner well.  The prisoner attempts to shew that he could not be the man, as he was seen by a witness with Newspapers under his arm.  How prisoners of the Crown obtained these Newpapers, or the money to get them, His Honor could not tell; it was said by the witness McDurmott, that the public-houses all had them.  He thought that prisoners under sentence having them, was contrary to the intention of Government.  His Honor, after going through minutely the whole of the prosecutor's testimony, and that of the witnesses in succession, said to the Jury - I have now discharged my duty, and the time is arrived when you have to come to your decision.  Had the prisoner met the case in his subsequent defence to prove an alibi?  There were many persons in the gang who might have been called for that purpose, if correct.  Is there any reasonable ground to warrant you in deciding for the prisoner?  At the same time you must come to the decision of your verdict with the most tender anxiety for the life of another.

The Jury after retiring for a few minutes, gave a verdict of Guilty.  (Here the prisoner exclaimed O God! --burst into tears, and appeared in great agony.)

The Solicitor General prayed judgment of the Court on the prisoner.

His Honor addressed the prisoner in the most feeling and impressive manner - If you are really innocent of this crime, you are the most unfortunate of God's creatures.  The Jury have applied their minds to the truth of the evidence, and have had an opportunity of watching the demeanor of the witnesses in the face of God.  They have fully and carefully examined every point of your case.  I fear that in your heart, and in that bosom, there is strong conviction of your guilt.  Unhappy man!  You must now prepare for the great change that shortly awaits you.  You did all that you could to destroy another - and for what? a few pounds!  You must have known the chances against you, the certainty of being a second time at the bar of justice.  I implore you as a fellow christian, to employ every moment that is left you in making peace with your offended Maker.  I cannot hold out to you any hope.  The way-faring traveller must be protected.  During the few days you have to live, make the consolation of some devout and penitent reflections.

The judgment of the Court is, that you be taken hence to the place from which you came, and that you be hanged by the neck till you are dead, and the Lord have mercy on your soul.[3 ]

The Solicitor General then ordered the witness McDurmott to be taken into custody, on charge of perjury; which was done accordingly.



[1 ] See also Sydney Gazette, 19 November 1833; Dowling, Proceedings of the Supreme Court, Vol. 91, State Records of New South Wales, 2/3274, p. 37.  The latter noted that he was charged under the name of Kains, and that his aliases were Cain and Kearnes.

[2 ] The regulations for convict road gangs, issued on 10 September 1832, are in Forbes Papers, Mitchell Library A 1381, Reel CY 986 (near the end of the papers).

[3 ] The prisoner was executed on Saturday, 21 December 1833: Sydney Gazette, 24 December 1833; 23 December 1833; and see Australian, 20 December 1833.

Published by the Division of Law, Macquarie University