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

R. v. Forrester, Gibbon and Jones [1834] NSWSupC 47

robbery in dwelling house - convict evidence - Field of Mars

Supreme Court of New South Wales

Burton J., 1 May 1834

Source: Sydney Herald, 8 May 1834[ 1]

Michael Forrester, Darby Gibbons, and Thomas Jones, were indicted for a robbery in the dwelling-house of Thomas Lyons, at the Field of Mars, on the 23rd of January last.

The prosecutor rented an orchard of the Reverend Samuel Marsden, and lived on it alone; on the night of the day laid in the indictment, he was watching the pear trees in the orchard; was armed with a gun and a hay-fork; the door of his hut was open; after watching some hours, during which it rained heavily, the prosecutor fell asleep; was awakened by something being forced over his head; believed it to be a bag; felt somebody in the act of tying a cord round it, who went away; witness got the bag off his head, and ran out into the garden; saw two men in the act of taking the fruit from the trees; on witness' approach they attacked him; one man had a gun, which he presented, and swore with dreadful imprecations, that if witness made the least noise or resistance, he would blow his head off; witness then received a stroke with a musket, which felled him to the ground; the three men were present; they asked witness, as he lay, where his money was; witness replied that he had none; one of them said d--n the old b--r, lets broil him into a confession of it; they then carried him into the hut, tied his hands, and threw him on the fire; witness had no power to save himself; after torturing him in this way for some time, witness begged them to take him off the fire and he would tell them where his money was; he was burned in a dreadful manner in various parts of the body; they took him off the fire, but as witness hesitated for a short time, they put him on again; witness then informed them where to find his money, when they took £70 in notes; there was no light in the hut but the light of the fire; witness described two of the men, one was a short, rather stout man, with broad face, pock-pitted, and sallow complexion; the other was a tall man, with a long visage; did not see countenance of the third man; the tall man went to the door and had some conversation with the third man; when he returned, he went to the place from which the money had been taken, and found £4 in silver; the hut is built of slabs, and lined with bark, which they pulled down in search of more booty; finding none, the short man said come, lets settle him, when the bag was again put on, and the prosecutor's feet and hands' tied; two of them packed up a quantity of slops, flour, and sugar, which they took away; on going out, they desired prosecutor not to stir on pain of having his head blown off, and at the same time pointing the musket at his head; witness managed to extricate his feet from the cords with which they were tied, and released his head from the bag, untie his hands; witness went to Capt. Barnes'; saw Samuel Mansfield, who dressed the burns, and he remained there until day-break, when, accompanied by Mansfield, he returned to the hut; the ground was soft, and foot marks were tracked from the hut to the road leading from Parramatta to Kissing Point, along which, and also along the turn off to the residence of one Terry McManus, the footsteps were distinctly perceptible; some grass land intervening between the road and Terry McManus's house, all further traces were lost; the ground was soft in every other direction, but no footsteps were to be seen; witness obtained a search warrant, but no traces of the property could be discovered; on returning to his hut, witness received information which caused him to have the prisoners apprehended; there was also one of McManus's men brought to witness, but he was not of the party; on witness pointing out the shorter of the prisoners, he trembled exceedingly; witness could not swear positively to the identity of the prisoners, but they were, to the best of  his opinion, the men who had robbed him; witness here pointed to the men individually, describing their conduct on the occasion respectively; on the return of witness to the hut, he found a bag in the place where the scuffle had taken place; the bag was marked ``Edmund Lockyer" in several places.  The witness underwent a rigid cross-examination by Mr. Rowe; had never told a different story as to the transaction; had never accused any other persons of the robbery; there was a Government gang at about three-quarters of a mile from his hut; the bag left on his head had a broad arrow on it; did not see the shoes, found in the hut after the robbery, tried on any of the prisoners; was not sent to this Country for perjury; was twice transported here; arrived here first by the Atlas, for stealing a goose; second time by the Marquis of Huntley, for stealing a bushel of wheat.

The Solicitor General objected to this line of examination, but His Honor stated it to be proper under the circumstances of the Colony, in order to enable the Jury to judge of the credibility of a witness, though he much regretted the necessity of it.

Samuel Mansfield corroborated the statement of last witness cross-examined by Mr. Rowe; should not imagine that any man would inflict such injuries on himself, for the purpose of making up a story; knew Lyons for the last three years.

Edward Lockyer, Esq., remembered the prosecutor making a statement of the robbery, said he should instantly know the robbers on seeing them.  He said that he saw one of them counting the notes; he had a pair of shoes in his hand, and a bag bearing witness's brand; witness furnishes Mr. Simpson's men with provisions in his own bags - did not see the shoes tried on any of the prisoners.

Cross-examined. - From the description the prosecutor had given of the men who robbed him, if he had met the prisoners he should have apprehended them; prosecutor stated that some cattle had got through a broken pannel [sic] of the fence, he went out for the purpose of driving them back, and on his return three men rushed into the hut, he complained of being punished with both ends of the musket; the description given of the man who used the musket agrees with the person of the prisoner Jones. -  When witness had the contract for supplying provisions, used to lend bags to the road-parties, is certain that the prosecutor said he should know the men.

John Brown, a constable, deposed to having apprehended the prisoners Forrester and Gibbons on the Kissing Point-road, near Parramatta.  Jones was apprehended at McManus's, they were pointed out, by the man who was sent with him; on searching them six half-crowns were found on the prisoner Forester, and one half-crown on Gibbons.  Forester said he had received the money from Terry McManus, where Jones was apprehended; Jones was his servant.  Witness gave the prisoners to another constable, and went to inform the prosecutor of their apprehension; the prosecutor described the robbers and accused Gibbons of being one of the men who robbed him; he said that Jones was not one of them; Gibbons trembled very much - witness and the prosecutor went to search the prisoners' huts; they declared they were at home on the night on which they were charged with the robbery; the prisoner showed where their hut was; on searching it some bags were found marked ``E. Lockyer;" did not know whether the shoes were tried on the prisoners.  Prosecutor certainly said he did know the prisoner Jones, as the third man did not come into the hut.

His Honor observed, that there was no necessity for putting the prisoner Jones on his defence.

Witnesses were then called on behalf of the prisoners.

Percy Simpson, Esq., deposed that the prisoner Forester had been in his service since 1826, and Gibbons since 1828, he always considered them to be men of good character.

Richard Lane examined. - Is  Government Bullock-driver; frequently slept in the hut with Forester and Gibbons; slept in the same berth with them on the night on which the robbery was stated to have been committed; was not aware of their being absent from their beds that night; they were present when witness awoke at day-light next morning; do not think they were absent on that occasion.

Patrick Smith, Overseer of Briant Hills Gang, deposed, that there were 80 men in his gang, chiefly invalids; had seen some of Major Lockyer's bags in the men's huts.

His Honor, in recapitulating the evidence, observed, that the only direct evidence was the prosecutor's; and his testimony carried with it no positive proofs of identity; trembling could not be considered as a proof of guilt; it might arise from weak nerves; after commenting at great length on the most material points of evidence, the case was left to the Jury, who returned a verdict of - Not Guilty.

 

Notes

[ 1] See also Sydney Gazette, 3 May 1834.  The trial judge's notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2414, vol. 11, p. 26 (calling the first defendant ``Forrestal").

Published by the Division of Law, Macquarie University