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

R. v. Cullen, Doyle and Murphy [1834] NSWSupC 83

Bathurst - crime suppression association - highway robbery

Supreme Court of New South Wales

Forbes C.J., 4 August 1834

Source: Sydney Herald, 7 August 1834[ 1]

Before His Honor, the Chief Justice, and a Jury of inhabitants.

Bartholemew Cullen, John Doyle, and Francis Murphy, stood indicted, at the prosecution of the Bathurst Association for the suppression of sheep, horse, and cattle stealing, for a high-way robbery committed on the person of Robert Smith, putting him in bodily fear, and taking from him the following articles, his property, at King's Plains, near Bathurst, on the 19th May last, viz. - One blue cloth jacket, one double bladed pocket knife, one horse, and one saddle and bridle.

The case for the prosecution was conducted by Dr. Wardell, who briefly laid the history of the transaction before the jury, and called the following witnesses:-

Robert Smith examined. - I am a settler and reside at Campbell's River, in the district of Bathurst; I know the prisoners at the bar; I remember seeing them on the 19th May last; on that day had occasion to visit a station of mine at King's Plains, and set out on horseback for that purpose; proceeding on my journey, I had reached a part of the road between my place and Mr. Liscombe's farm, at a short distance from Fitzgerald's Mount, the distance from Bathurst being about fifteen or sixteen miles, when I saw the prisoner Murphy within a few yards of me on the side of the road; producing a pistol which he presented at me, he commanded me to stand or he would shoot me, and at the same time ordered me to get off my horse; the two other prisoners then rushed out from among the trees and joined Murphy; I am positive that Doyle was one of them; I got off my horse as desired, and stood with my face towards Murphy, who put the muzzle of his pistol towards my head and desired me to turn my face the other way; I then turned round, when Murphy said ``come, out with your money;" I informed him that I had no money; he then addressed the other prisoners, saying ``come and frisk this fellow;" frisk, is a flash term, which I understood as meaning to search me; Doyle immediately came over to me, and one of the men who had a black cloth over his face; who I believe to be the prisoner Cullen, mounted my horse, and pointed a pistol towards me; Doyle then commenced searching my pockets, and pulled several memorandums and a double bladed pocket-knife which I had made for the purpose of cutting cattle; on looking over the papers, and finding no money, they were returned to me; he then pulled out my watch, and a consultation was held, and the man on the horse was asked whether they should keep it or not; finally it also was returned to me; the prisoner Murphy, then said ``I must have that jacket, off with it directly, and also that handkerchief," meaning my neckerchief; I took both off and he took them out of my hand; I saw the jacket at the Police Office, where I identified it as the one taken from me on that occasion; I knew it by part of the lining of one of the sleeves having been torn out to make tinder of when in an encampment; I described this peculiarity to the Magistrates at the Police Office before it was shewn to me; the jacket was made of blue cloth, with calico lining; on taking away my horse with them, the prisoner, Murphy, said ``now be off with you the way you were going, and don't attempt to look back at your peril, if you do I will shoot you;" I walked on a few yards, they proceeding in another direction, when I ventured to look back at them; the prisoner, Murphy, observing me, said, at the same time shaking his pistol at me in a menacing manner, called out ``you had better be off while safe;" I proceeded onwards, and looking at my watch, ascertained the time to be twenty minutes past two o'clock; the horse was worth about £25, and the value of the saddle, which was an English one, about £5; the man whom I took to be the prisoner Cullen, rode the horse away; the position in which I stood while the other prisoner was searching me, afforded me frequent opportunities of looking, by a side glance, at the man on the horse; the cloth to which I before alluded, was worn by the prisoner, Cullen, on that occasion covered a great part of his face; he had a hat on, but it did not come over his eyes; his hair was long on that occasion, but it appears to have been cut; the cloth slipped down at one time below his nose, leaving the upper part of his face and countenance exposed for a few seconds, when, observing my eyes directed towards him, he quickly restored it to its former position; I was intent on examining his features as well as I could, in order to know him again; there is a very strong impression on my mind, which I never can get rid of, that the prisoner, Cullen, is that man; the persons and features of the other prisoners are well known to me, to them I swear positively; never saw Cullen before that time; but when I afterwards saw him brought into the Police Office at Bathurst, with several other prisoners, it immediately struck me that he was the man; I knew Murphy the instant I saw him; I also immediately knew Doyle on seeing him, the man whom I suppose to be Cullen, did not appear at the Police Office in the same dress as he wore on the 19th May, it was not many days after that time; he first wore a duck jacket and straw hat; when I again saw him he had on a red frock and striped shirt; he has now a blue jacket on; I have seen him in three different dresses; under all which changes, the impression on my mind is, that he is the man; I made my depositions before the Magistrates on the 29th of this month.

Mr. Therry appeared as counsel for the prisoners, Murphy and Cullen, and intimated to the Court that he appeared on their behalf only.

Cross-examined by Mr. Therry. - I am certain the day on which the robbery was committed, was the 19th of May; after the prisoners left me I looked at my watch, it was twenty minutes past two; I do not recollect having stated that it occurred at any other period of the day; that was the time when they went away; at the commencement of the robbery it might have been half-past one o'clock; the only part of Cullen's face which was visible to me was the space between his nose and eyes; I am positive the handkerchief slipped down; I did not swear to his identity; in a matter of life and death, where there is a possibility of a conscientious doubt I would allow the prisoner the full benefit of it; there were others with him when I next saw him at Bathurst, Murphy was of the number; the circumstance of seeing him there with Murphy, did not tend to give me my impression, they were established by the circumstances altogether, independent of that.

Re-examined by Dr. Wardell. - Those impressions which acquire greater strength, the more I observed the prisoner's appearance, I cannot do away with, yet, rather than swear positively to him, I would let him escape; it is to him, indeed, that I am indebted for the recovery of my watch.  (A laugh.)

Thomas Edwards examined. - I am a sergeant of the Mounted Police; I know the prisoners at at [sic] the bar; on the 23d of May last, I apprehended Murphy and Cullen, within about three miles of Salmon Creek, which is distant from Bathurst about seventeen miles; Cullen was in company with a runaway female prisoner; I found them together in a bark hut, built in the bush; Cullen was dressed, to the best of my opinion, in a white fustian jacket, apparently clean washed; cannot speak as to trowsers: I believe he had a straw hat on, but I cannot swear positively; I apprehended Murphy in a few hours afterwards; he had on a blue jacket which was subsequently produced at the Police Office, and identified by Mr. Robert Smith, who described it as having part of the lining of one of the sleeves torn away; on my apprehending Cullen, he told me he was an assigned servant to Mr. Perrier, at Swallow Creek; I know Fitzgerald's Mount, it may be about fifteen miles from Swallow Creek; I don't know Bruce Dale.

Cross-examined. - Some hours intervened between the apprehension of Cullen and Murphy; I suspected Cullen was a runaway, and living in the bush.  I asked him what he was doing in that part of the country, when he said he had been ordered by his Overseer to look for some stray bullocks; I took him in custody and proceeded to his master's station, where the Overseer informed me that he had sent him in search of Cattle on the night previous, but not on that day.  My suspicions of his being a bushranger were excited by his being in company with the woman in the hut.  I am satisfied he was not a runaway; cannot swear he wore a cop made of Oppossum skin on the occasion, nor can I swear he was not in his shirt sleeves; do not recollect his getting a jacket from the overseer, on my taking him to Bathurst in order to confine him; the overseer endeavoured to induce me to leave him and he would be answerable for his appearance, but it was not in my power to do so.

John Englesole. - I am a ticket-of-leave holder, I remember the 23rd of May last; I was then employed at Bruce Dale, the estate of Mr. Suttor; the distance from Fitzgerald's Mount is about eight or nine miles; don't know how far it is from Swallow Creek; I found a big horse that day in a dry sweat, apparently having been rode very hard; I believe it has been claimed by Robert Smith.

Mr. John Liscombe. - I am Clerk to the Court of Petty Sessions, at Bathurst; I know all the prisoners; Murphy is an assigned servant to Mr. Perrier; Doyle was lent from the road department for the purpose of assisting at the harvest, but was reported as a runaway since February last.  Murphy was reported as an absentee previously to the 19th May; Cullen is also an assigned servant to Mr. Perrier; I don't know when Murphy absconded; Doyle was apprehended some days after Murphy; Fitzgerald's Mount is in the district of Bathurst, partly on my own farm; heard the witness Smith describe the place where he was robbed as being about a mile beyond the Mount, a continuation of the same range; I saw Cullen before he was examined; I think he had a red shirt on; but I am not positive.

Mr. Therry, I confidently submit to your Honour that there is no case whatever exhibited against the prisoner Cullen, to go to the Jury.  The principal witness himself entertains a conscientious doubt as to his identity, which is the only part of the evidence which at all affects him; under these circumstances I suggest that he be discharged.

His Honor. - There is quite sufficient evidence Mr. Therry, to go to the Jury; the case must take its course.

The evidence for the prosecution being closed, Mr. Therry called the following evidence for the defence.

Mr. David Perrier examined. - The prisoners, Murphy and Cullen, are my assigned servants; I recollect the 19th of May last, I left Bathurst for Sydney on that day by the Mail; I sent the prisoner Cullen to Bathurst in the early part of the day for the purpose of taking my horse home again; the distance from Bathurst to my farm is about six miles; from my house to Fitzgerald's Mount, is about fifteen miles; I sent Cullen to Bathurst on Sunday morning with my horse, and certain articles that were to be sent down by the Mail; he returned between two and three o'clock on Sunday evening.  I saw him in Bathurst on Monday morning as late as twelve o'clock; the Mail was remarkably late on that day.  On giving him the horse to take home, I remember enjoining him to walk the horse easily home, that the animal might not be distressed; I don't think it possible for him to be at Fitzgerald's Mount in an hour afterwards; the distance from Bathurst to which place is about seventeen miles; it lies in the direction of my house; he must have galloped at an extraordinary pace to do it.  I cannot think it possible; he has been in my service about two years; I never knew any thing bad of him; I considerd [sic] him an honest and valuable servant to me.

Cross-examined by Dr. Wardell. - I have frequent opportunities of witnessing the conduct of my servants, sufficient to make me capable of judging of a man's character; I have a trusty overseer, to whose management I consign them; when he has any complaint to make, he of course submits it to me; in stating that I always considered Cullen an honest servant to me, I do not mean to draw any distinction between his conduct to me for honesty and that towards any other person; I considered him honest in a general sense; the horse he took from Bathurst was was [sic] a pretty fair horse; cannot say it was a very good one; don't think him capable of going ten miles an hour; he was rather broken down; have certainly heard of broken down horses trotting as much as fourteen miles an hour; think Fitzgerald's Mount from Bathurst is about sixteen miles; am fully satisfied of it; am positive it is twelve or thirteen to the valley, thence to the Mount two or three miles farther; the road is hilly; it is a pretty well marked road; from my house to the Mount is fifteen or sixteen miles; Cullen ought to have reached home easily in three or four hours; if he went at a slow pace, I consider he ought to have reached home at about four o'clock; he might certainly have gone home by the way of Fitzgerald's Mount; it was around about way, but there was no difficulty in it if he chose to do it; in that case I suppose he would not have got home much before eight o'clock at night to have had time to perform such a journey; he was once stationed at another farm that I rent from Mr. Bettington, three or four miles distant from Fitzgerald's Mount; don't know that he was well acquainted with the roads; there was a frequent communication between the two stations; used to send rations for the men from one station to the other; never sent Cullen for the rations; don't know who the overseer sent on these occasions; the bullock driver, with his team, used to perform this duty when Cullen resided at the valley; the overseer might have had occasion to send him to the farm where I now reside; if he found it necessary to do so, he would not have occasion to ask me who he should send; on the 19th May Cullen was not stationed at the valley.

Robert Smith re-called - I looked at my watch immediately after the robbery; took particular notice that it was twenty minutes past two o'clock, but my watch might be wrong; ought to be well acquainted with the roads in that part of the country, having travelled on them during a period of fourteen years; am well acquainted with distances; from the place where the robbery was committed to Bathurst is fifteen or sixteen miles; from Mr. Perrier's house to Bathurst about the same distance; from Swallow Creek, to where the robbery took place, I am certain is not more than seven or eight miles; there is a nigh cut through the bush; the distances have here been measured, but is mere matter of opinion.

Patrick Magheran. - I am overseer to Mr. Henry Perrier, and also for his brother, Mr. David Perrier, at Swallow Creek; recollect the morning on which the policeman brought Cullen to the station in custody; had given him orders on the night before to go and look for two bullocks which had strayed, and without which the drivers could not remove the hurdles; on the following morning Cullen was asleep, and I did not disturb him, but I roused the bullock drivers, who took breakfast while I rode to select the spot where the hurdles were to be pitched, and told them to follow me; when I returned home Cullen was absent, the other men were present; shortly afterwards the policeman brought him in custody; I informed him that I had no complaint against him, and that he was not a runaway; have been in the service of Mr. Perrier going on ten years; always found the prisoner a correct man; consider him an honest and valuable man.

Cross examined - Don't know what you mean about his being too valuable to be lost; am not aware of that being the true interpretation of my observation on that head; the prisoner is a shoe-maker; he makes strong shoes for the men; in my country they call them brogues; he can make fine dress shoes if he likes; am not aware that he is worth a great struggle of conscience on that account; would speak nothing but what my conscience directed me was the honest truth if he were ever so valuable; recollect my master sending him to Bathurst; I sent him for newspapers on Saturday, about ten o'clock; told him to travel gentle, and be home about sun-down; he was sent on Monday, the 19th May, also; he returned late on the evening of that day; am in the habit of visiting the sheep stations; the distances of which, from the house, vary from seven miles to one; started on Monday at about three o'clock, and returned about sun-down; did not see Cullen for a quarter of an hour after I returned; immediately examined the horse, which I found quite dry; remember asking some person, after the prisoner was in custody, to use their influence with the Magistrates to get Cullen off, as I considered him not likely to be connected with the robbery, he having frequently given me information of bushrangers being about the station, on that account I considered the prisoner ought to be let off.

Dr. Wardell. - How do you reconcile his extraordinary good character, with the fact of his connection with the bushrangers, to such an extent as to furnish him, in particular, with a fund of knowledge as to their movements?

I made it known to my master on his giving me the information; am not aware that my master acquainted Mr. McAllister with it; can't swear positively what time he came home on the evening of Monday, the 19th May; never told Mr. Liscombe that it was eight o'clock; might have said so with regard to myself; had orders to inspect the horse, and take notice what time he came home; can't speak as to my conversation with Mr. Liscombe; he gave me liquor, which rather upset me; am not particularly fond of a ``drop;" don't know what you mean by taking care ``not to get a drop too much;" suppose we all can take a drop betimes.

Joseph Henry Barsden, in custody on a charge of cattle stealing, but released to give evidence. - I was formerly a publican at Bathurst; was so in May last; am now a retail dealer; recollects that on the 18th May last, the prisoner Cullen was at my house; he had an order from his master to be supplied with refreshment; he was there also on the morning following, the 19th, and took breakfast with me; he then went to Mrs Dillon's, where he waited for his master's horse; he returned to my house about two o'clock, and informed me that a man of the name of Broderick, who was something indebted to me, had an order from his master for £4, and if I did not go up I would most likely lose my money; I went accordingly; again saw Cullen at four o'clock at my house, when I was very angry with him for not going home with his master's horse.

Cross examined. - He might have reached home by sun-down; he was at my house, on the 18th and 19th May; was not aware what time the sun goes down, at that time of the year; should say about half-past five o'clock; considers the distance to be about twelve miles; heard that Cullen was charged with the robbery of Mr. Smith.

Mr. Liscombe re-called. - I know the witness, Magheran; fell in with him on the new line of road, at Bathurst; recollect giving him a glass of brandy, at Keenans; he would not take it neat; had some conversation with him; on that occasion, he told me that Cullen returned on the 19th May, with his master's horse, at eight o'clock; that he had had orders to inspect the animal on its arrival, and found him perfectly dry; witness had a bottle of spirits with him on that occasion.

His Honor recapitulated the evidence briefly, and put the case to Jury, who returned a verdict of Guilty, against Francis Murphy and John Doyle.  Bartholomew Cullen - Not Guilty.[2 ]



[ 1] See also Australian, 5 August 1834; Sydney Gazette, 5 August 1834; and see R. v. Cullen, Doyle and Walsh, 1834.

For another prosecution by a crime suppression association, see R. v. O'Neal, Sydney Gazette, 9 May 1835.  In May 1835, Thomas Skeefe was sentenced to death for shooting at, with intent to kill, William Burke, who was a ranger for the Association for the Suppression of Cattle Stealing: Sydney Herald, 18 May 1835; Sydney Gazette, 19 May 1835.

[2 ] Murphy and Doyle were sentenced to death: Sydney Gazette, 28 August 1834.  They were hanged on 11 September 1834: Australian, 12 September 1834; Sydney Gazette, 13 September 1834.

Published by the Division of Law, Macquarie University