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

R v Ball and Pearson [1835] NSWSupC 38

aiding and abetting - attempted murder - Monaro - bushrangers, gunfight

Supreme Court of New South Wales

Forbes C.J., 4 May 1835

Source: Sydney Herald, 7 May 1835[ 1]

John Ball and Joseph Pearson stood indicted for aiding and abetting the prisoner Joseph Keys, who had pleaded guilty to an indictment charging him with shooting at, with intent to kill, Charles Fisher Shepherd, at Long Flatt, Menaroo Plains, on the 14th December last.

Mr. Sydney Stephen appeared on behalf of the prisoner Ball.

Charles Fisher Shepherd examined.  I am superintendent of the establishment of Mr. J. Catteral, at Long Flats, Menaroo Plains; I remember the night of the 14th December; I recollect the night on which the bushrangers paid a visit to the establishment; I was lying asleep in my tent, which for the benefit of the cool air, it being very warm weather, I had erected a short distance from the hut where I usually slept; about the middle of the night, I was awoke by the sound of numerous voices, which I at first took to be those of the servants of the establishment; I had littler time for conjecture, for suddenly several men entered my tent, one of whom directed the muzzle of a musket towards my breast and threatened, that if I made the least resistance, he would lodge the contents in my body; one of them said ``So you thought we dare not come down to the flats, we are to get a benefit on the vents of so doing it;" the taunt was in allusion to some expressions I had before made on the first hearing that bushrangers were in the neighbourhood; and which must to have been communicated to them by some person belonging to the establishment; one of the party was sent to secure the servants, who were taken from their respective huts, and put together under a guard; they searched the huts, taking thence all that was worth their consideration, consisting of provisions, wearing apparel, &c. together with all the fire-arms they could find, some of which they destroyed on the spot, taking the remainder with them; with the exception of my double barrelled fowling piece, which they returned to me, on condition of my teaching them the use of a small pocket compass, which in searching my clothes they found in one of the pockets, and I complied with their proposition; after pillaging the whole establishment and destroying such of the arms as they did not choose to be encumbered with they departed, and I heard no more of them during the night; as soon as day dawned, I ordered the groom to get my horse ready as I was determined to go in pursuit of the ruffians and proceeded to charge my double barrelled piece, but discovered to my chagrin, that in their pillage of the preceding night they had taken the balls with them which I had provided as ammunition, leaving only a quantity of small No. 4 shot with which I charged, having no alternative; I was just about to proceed from the hut with my piece in my hand, when I observed two men armed approaching me near the hut, who on observing me prepared as I was, slunk behind the hut and went round it; one of them immediately fired and missed me, and perceiving the other bring his piece to the present for the same purpose, I levelled my piece and fired when he dropped dead at my feet; the other man who had fired but missed me, threw down his pistol, and falling on his knees screamed for mercy; with my piece levelled still having one barrel loaded, I ran up to him when the prisoner Ball suddenly appeared and said, ``Don't fire, Sir, don't fire, Sir!"  I replied by God I will, the rascal has just fired at me for the purpose of taking away my life, and he can expect no mercy; the prisoner Ball then said ``by God, Sir, if you shoot him, I will shoot you," to which I replied, if I had the other barrel now loaded, by God I would shoot you both; the prisoner said there was no occasion for any more shooting and proposed that the bushranger, whose name I afterwards learned was Boyd, should be given into his custody and he would secure him; I agreed to the proposal, and made him strip to the skin in order to ascertain whether he had any offensive weapon concealed about his person; I then ordered him to go into one of the huts and placed him in a corner, charging him not to stir, and gave Ball a strict injunction to take care of him; I shut the hut door, and was proceeding in the direction of the spot where I had shot the man, to ascertain if there was any chance of his recovery, and had not proceeded more than a few yards when I saw another of the party, Keyes, approaching me with a double barrelled gun in his hand; there was a water cask stood at distance, which with the tent and my hut formed a triangle; being nearer to the cask than to either of the other two points, and considering it a good cover from the enemy's fire, I strove to gain it, but Keyes being nearer than I was, availed himself of it and I retreated to the tent, the nearest cover in safety; I kept my piece levelled, and anxiously awaited a shot at the delinquent, but all I could see of him as he crouched behind the water cask was his eye and the barrel of his piece, ready to take aim at me if a chance offered itself; as the only alternative left me, I conceived that the best means of drawing him from his cover, would be to risk an occasional exposure of my person from behind the tent which might induce him to fire, and if he missed me he would then be on an equal-footing, I having only one of my barrels charged, or it would give me a chance of bringing him down; with this view I sprung gently backwards and forward on my foot, shewing myself now and then, when Keyes fired and lodged seven slugs on the upper part of my left arm, exclaiming at the same time exultingly, ``ah, you b--r you're down!"  I replied ``not yet my lad;" Keyes then changed his position, and took his station at the other side of the cask which rather discomfited me, as being wounded, I was unable to lodge the stock of my piece against my left shoulder, and could not get a fair shot at him from the other, in the direction in which he stood; feeling unsafe behind the tent, as some of the shots had gone through, I retreated behind the hut.  I then saw the prisoner Pearson approaching, with a musket in his hand and sword buckled round him; on coming up he said ``don't fire, Sir; don't fire, Sir;" I thought Pearson had come to my assistance, and was going to have a shot at Keyes, as he cautiously approached the corner of the hut opposite to the water cask, but he returned to me and said ``don't you fire, Sir;" Keyes still remained under cover and would not shew, when I resorted to my former hazardous stratagem, and had shewn myself two or three times, when he again fired, the shots whistled past my ear, but missed me, and I sprang forward saying ``Now I have you Joe," and run to attack him; he presented the barrel of his piece and made a feint to fire, but I told him it was then no use, and told him to put his gun back, and was just in the act of closing with him, when Boyd, whom I had left in custody of Ball in the hut, run out, and took the musket out of Pearson's hand, presented it at me and fired; the ball caught the corner of my eye, and went through my ear; I was stunned by the wound, and caught hold of the wheel of a cart, near which I was standing to save myself from falling; on being shot by Boyd I had dropped my piece, and having nothing in my hand to defend myself with, and on recovering myself seeing the ruffians approach me, I ran towards the hut where Mr. Catteral was standing at the door; it was about two hundred yards from where I had been skirmishing; I said ``My God Mr. Catteral, how could you see me murdered in this manner and not render me assistance; here have I been fighting for my life with a number of ruffians for nearly an hour, and no one to step out to assist me;" he said ``What assistance could I give you;" I then ran towards a hut that stood a littler farther off, but on looking back, I perceived the ruffians Boyd and Keyes approaching and apparently loading their pieces, one of them was knocking the butt on the ground by way of ramming the charge.  Ball was also coming up behind them; fearing I would be unable to reach the further hut, I ran back to the hut where Mr. Catteral was, and ran into a room behind; I looked upon death as then certain; in a second the ruffians entered the passage leading to the rooms in rear of the hut, but being uncertain of which room I had gone into, as there was one at each side of the passage, they stood at a short distance from the doors, with their pieces crossed, the muzzles pointing to each of the doors; giving myself up to my fate, I resolved upon one desperate effort, and suddenly rushing out of the room where I had taken shelter, I seized the barrels of their pieces, and held them with extended arms so as to prevent their injuring me in case they fired; they endeavoured to wrest the pieces out of my grasp, but I held them firmly and rendered their efforts abortive; the struggle became violent, and finding themselves unable to disengage their pieces from my hold, they forced the stocks violently against my face and head, until nature, sinking under the excessive torture of the wounds and contusions thus inflicted, I fell insensible at their feet; the last traces of consciousness, were, the feeling the ruffians inflict several violent kicks on my body after I had fallen; I cannot say how long I lay in that state, but on recovering my senses I felt a pain in my left fore arm of a rather singular nature, and on raising my head to look at my wounds, I perceived that I was on fire, my coat and trowsers being in a blaze; I got up as well as I could and extinguished the fire, discovering another wound, which to my mind explained the cause of the fire, - the ruffians, after the infliction of the tortures already described, on leaving me, had, as a coup de grace, discharged one of their pieces at my body, which, instead of destroying me finally as they had intended, had lodged its contents in my thigh near the groin, and from the nearness of the muzzle of the piece to my body, had ignited my clothes; such was my impression; as soon as I recovered myself a little I walked as well as I could to my hut; I saw Mr. Catteral, and uttered something in the way of a gentle reproach for his not having sent me some assistance under my wounds; when he replied that he thought it would have been then no use; he had given me up for dead, and was about to send the men to bring my body up; I don't know how long I might have been there, I thought it was then about noon; I never saw the bushranger who fell, after I shot him, but I was informed that he died in about an hour afterwards; I also learned that Boyd was afterwards shot in the Snowy River by a mounted policeman.  A Mr. Bowman, from Goulburn, came up to the establishment about 12 o'clock; I was then sensible; my wounds were at that time crawling with maggots.  I was in a very bad state and despaired of life.  I was conveyed to Goulburn, where I lay thirty-six days confined to my bed, and was obliged to walk on crutches for some time; Dr, Arnat extracted nine slugs from my wounds, and I have extracted one more since I came to Sydney.  When the bushrangers went away, Ball said the rascals had taken away his certificate of freedom, and an order for the payment of money; the certificate was afterwards found on Ball as also the order; he impression on my mind was, that he had merely made this statement, to clear himself of the suspicion of being connected with the bushrangers; that suspicion was materially strengthened by the circumstance of an observation made by me a few days previously among the sheep-shearers, having been repeated by the bushrangers; on that occasion, the prisoner Ball, who was a sheep-shearer, observed, that it was reported the bushrangers were in the neighbourhood, and it was likely that they would visit the ``Flats," the name of the place where the establishment stands, before they went away; I replied, ``that they might come as soon; as they liked, as I was fully prepared for them, and would give them abenefit when they did come"; these words were repeated by the bushrangers on their entering my hut; Ball is a free man and hired as a sheep-shearer from Mr. Ryries station, which was also attacked by the bushrangers a short time previously; Pearson is an assigned servant to Mr. Catterall; he had no means of getting the arms he had in his possession, unless from the bushrangers, as they had either taken or destroyed all the arms on the establishment; after the bushrangers disappeared, Pearson also was missed from the establishment and remained away some time.

By the Prisoner Pearson. - I was standing near the hut when I first saw you; I had said a considerable time before that, that if I had any one to assist me I would take the three bushrangers; but as I could see no such relief, I was obliged to fight my way among them as well as I could; the man Cleary also came up, but he was intoxicated and spoke loud, as if he and you wished Boyd, who was in the hut, to hear what I had to say to you on the subject; Cleary went away and I was glad of it, as I had no faith in him; I began to suspect you of infidelity when you allowed a chance to escape you to bring Keyes down, who had his piece directed against my life; I thought at first that your requesting me not fire, was from an idea of precaution, against putting myself in Keyes' power, in the event of missing him, you having a better command of the position he maintained behind the cask.

The Prisoner Ball was defended by Mr. Sydney Stephen, who proceeded to cross-examine the witnesses: - the door of the hut in which I had confined Boyd in the custody of Ball, was secured by means of a latch only; Boyd was not a powerful man, he was a young man about the middle size; he was given into the custody of Ball at his (Ball's) request; there was no great difficulty in holding him in consequence of his being in his skin, as he had his trowsers on, by which he could have been held; there were other persons present when my observations, communicated subsequently to the bushrangers, were expressed, who had an opportunity of conveying them as well as Ball; certainly there was nothing remarkable in Ball's saying that he bushrangers would in all likelihood be down, as it was a matter of general report, that they were in the neighbourhood; my suspicion of Ball's agency is further strengthened by the fact of their coming directly to my tent on their arrival at the establishment, and instantly reiterating the observations before alluded to; it is therefore evident that I was their principal victim, and they must have derived their information as to which hut I occupied, from some one connected with the establishment; in fact, from the prisoners, Ball particularly; he might certainly have dropped the certificate, said to have taken by the bushrangers on the ground during a struggle with Boyd to keep him in the hut, but I do not believe it; he said he had lost an order also; the prisoner usually kept his certificate in a tin case and could not readily lose it without being aware of it; I can scarcely suppose that he had deposited the order with the certificate; he had other money which was found on searching him, and it is likely that he would keep the order with his other money; I believe it is usual for individuals to keep their money in one plaae [sic], I do so; Ball said, when the bushrangers were gone, that he had found his certificate again, which he thought he had lost.

By the Court. - On Boyd's first appearance he had a pistol, which he threw on the ground on my running up to him, and called for mercy.  I do not know what become of it afterwards.

William Bowman. - I live at Bong Bong; I have a station at Menaroo, at the distance of about eight miles from that of Mr. Catteral; I was there in December last; I visited Mr. Shepherd on that occasion; I recollect receiving a communication from Mr. Catteral, requesting me to go up there; I went accordingly; I arrived there about twelve o'clock; it was on a Sunday morning; on my arrival I was informed of the situation of Mr. Shepherd, whom I found lying in a tent; he appeared to be suffering from several wounds which he had received in various parts of his body; he was lying on his clothes; I opened his shirt and saw several wounds; his body was covered with blood, he seemed to despair of life; his wounds required immediate attention, as they were blown by the flies and full of vermin, it being warm weather; he appeared not to have been washed, the blood was all over his face, and in his hair and whiskers which were clotted with it; his shirt was completely saturated with blood; he appeared not to have had the least attention paid to him whilst in that state; I saw the body of a bushranger who had been shot; it was extended in a cart; it was cleanly washed and shaved, and a clean sheet thrown over it; that attention which might have been reasonably paid to Mr. Shepherd, seemed to have been directed to the dead body of the bushranger; I said as there was a probability of Mr. Shepherd's surviving, no time should be lost in obtaining medical aid; I said that for that purpose I would send my covered cart immediately, which would preserve him from the inconvenience of the heat of the sun; Mr. Catteral complained of the want of servants for that purpose, having, as he said, none to spare; I obviated that difficulty by a tender of my own servants, and Mr. Catteral then furnished horses.

Cross-examined - I think it would have been prudent to remove the bloody shirt from Mr. Shepherd, and to have washed him and cleaned his wounds; the blood being suffered to remain about his wounds only encouraged the flies to swarm about his person; his wounds were crawling with vermin; I admit that if a surgeon could have been obtained in a short period, it would be the more proper course to leave the wounds in their original state, for the inspection and treatment of the surgeon; but in a case like that of Mr. Shepherd, the extreme warmth of the weather at that season, and the great distance to the nearest surgeon, none being nearer than Bong Bong, the necessity of washing Mr. Shepherd's wounds, and removing his bloody clothes, must have been apparent to any man of ordinary observation; I do not think it would have been attended with danger to the life of Mr. Shepherd to have done so; I do not think that such a result could have been anticipated by any person from a prompt and careful attention; he seemed to have been wholly neglected.

George Smith - I am attached to the Mounted Police; I heard of Mr. Shepherd being shot; I was sent in pursuit of Joseph Keyes and Edward Boyd; I traced them to the Snowy River; on observing my approach they ran towards the river, and plunged into it to gain the other side; Keyes succeeded in crossing; I fired at the other who was swimming, and the ball took effect, as he made a plunge in the water; I saw nothing of him afterwards; Keyes was taken in three days afterwards at Amos Crisp's cattle station; he had the dagger now produced, buckled round his body, which he admitted to have taken from Mr. Catteral's station; they were both armed when we surprised them at the Snowy River, but on seeing us, they laid down their arms and plunged into the river; these are the arms produced.

Mr. Shepherd re-examined by the Court - When Pearson came down he was armed with a gun and sword similar to those now produced, taken subsequently from the bushrangers; I cannot say they are the same; I believe the sword was taken by them from Mr. Ryrie's, when they plundered his station; a handful of slugs, thirteen in number, taken from the body of Mr. Shepherd, was produced, which excited a sensation of astonishment in the Court, which was crowded to excess.

Mr. Manning, as Clerk of the Arraigns, produced the record of the plea of Guilty made by the prisoner Keyes, on his being arraigned with the prisoners Ball and Pearson.  This closed the case for the prosecution.

for the defence.

Mr. Joseph Catteral examined. - I reside at Parramatta; in December last I resided at Menaroo: I remember the morning on which Mr. Shepherd received his wounds; I saw the prisoner Ball on that occasion; I did not see that he had a gun in his hand; I am of opinion he had none; he went to the  bushranger apparently for the purpose of preventing him from firing; Mr. Shepherd commenced scuffling with the bushranger outside the hut door, in which I was placed; I did not see Ball go to Mr. Shepherd to assist him; when Mr. Shepherd fell I was ordered away from the hut; from the violent and desperate conduct of the men I was much alarmed, and thought my own life was in danger; I remained on the spot all the next day and sent for Mr. Bowman; I was not able to assist Mr. Shepherd, or prevent the bushrangers from using the violence they did towards him; they left him for dead; I considered he was dead when they went away; any other person would have considered the same; Mr. Shepherd's face was washed when Mr. Bowman came up; it was certainly no neglect of Ball's that his wounds were not washed.

Cross-examined by the Attorney General. - After the bushrangers went away the second time I missed Pearson, but I saw him again in a short time; he came down to the hut where I was; I enquired where he had been, but received no satisfactory answer; in fact he returned me no answer; he appeared to be intoxicated and went away; he again returned and told me he had secured the property that was stolen; I understood him to mean that he had got possession of it by some means, and had brought it back; I did not see him return the property; I heard that it was returned from some of the servants, and also from himself; the greater part of the property taken was returned; Pearson remained in the establishment, and did his duty as usual, until taken by the Police; I recollect when Mr. Shepherd came up to the hut and asked me why I did not assist him; Keyes came down upon us; I did not see Pearson at any time armed; Boyd was armed when I saw him; I did not see how he got his arms.

Attorney General. - There were eight men, it appears, on the station at the time the bushrangers appeared; is it not rather unaccountable that you, well furnished with arms, suffered two men to rob your establishment, and teat Mr. Shepherd in the manner they did?  Allow me to ask you, was not the property, for which Mr. Shepherd risked so much personal danger to defend, solely yours, and in which he was not at all interested as regarded himself?

Witness. - The bushrangers desired me to go away; not being in a capacity to resist their command, I was obliged to comply; I went behind the hut; Mrs. Catteral was at the establishment at the time and was thrown into such a state of alarm, that she stood in need of my particular attention; I could not leave her under such circumstances; I saw the last shot fired; they ordered me to be off; I can't say Ball followed them when they went away, he left the hut a few minutes after they did; I did not see Mr. Shepherd after they went away; I thought of sending the servants down to bring his body up conceiving him to be dead; I was about to do so when I saw him walking up towards the huts; he did not lie there after the Bushrangers left, more than ten minutes; he was desperately wounded; but was able to speak; after he was moved to the tent the wounds that were visible were washed; particularly those about his face; I did not remove his clothes from the other wounds, as I thought it might be dangerous to interfere with them until a Surgeon inspected them who could render immediate Medical assistance; I saw the bushranger that was shot lying in the stock yard; he was washed and laid out when I saw him; I believe by an old fellow servant of his named Edward Williams, who is now in my employ; I found my servants all drunk after the departure of the bushrangers; I was informed that Pearson was found asleep with arms in his possession at some distance from the establishment by one of the Mounted Police; I saw Boyd go to attack Mr. Shepherd with a musket in his hand; he might have got it in the hut for aught I know to the contrary; I cannot say that I am a good deal interested for the prisoners at the bar; they being my servants.  I went to see them on my arrival in Sydney; I did not go to Mr. Shepherd's lodging's to enquire after his health; I was not aware he was in Sydney; I did not employ Counsel to defend the prisoner.

Juror. - Did you at any time previously to the attack of the bushrangers tell Mr. Shepherd, that if they did come he might fight it out by himself, for he would have no help from you?

Witness. - I never made any such observations. 

Re-examined by Mr. Stephen. - It was dark when they came the preceding night; there had been rumours some time previously of their being about the neighbourhood; it was expected that they would act desperately, and I was apprehensive of having but a bad chance with them if surprised; I should not think a man so well prepared to meet them without arms as if he were armed; the slightest movement in such a situation, and under such circumstances, is of course attended with considerable risk.

This was the only evidence offered for the defence.

His Honor before proceeding to put the case to the Jury, remarked most emphatically that of all the cases that had been presented to his conderation in his judicial experience, so remarkable an existence of cool and determined bravery as had displayed itself in Mr. Shepherd, he had never found; indeed it equalled, if it did not surpass anything he had ever heard of or read of; how his life was preserved under these most extraordinary circumstances of attack, such a quantity of metal as he then held in his hand having been lodged in various parts of his body, one single piece of which being sufficient to destroy life if lodged in a vital part, was altogether beyond human comprehension, and could only be attributed to the interposition of Divine Providence.  In deliberately recapitulating the evidence, he thought the case against Ball appeared to be in a legal sense very slight; but it would be matter for the consideration of the Jury, how far the escape of Boyd out of the hands of Ball, taken in conjunction with the expressions, ``by God sir, if you shoot him, I will shoot you," he being at the time without arms, serves to identify him with the acts of the bushrangers.  How Boyd did effect his escape, did not appear; the question for their consideration was, did Ball release him for the purpose of enabling him to assist in the attack on Shepherd? unless they could arrive at that conclusion, His Honor was of opinion that the prisoner Ball must be acquitted of the charge of aiding and abetting; there was no proof offered that he had been in actual communication with the bushrangers, although some expressions were used by them which had been made by the prosecutor in the presence of Ball and other persons.  Against the prisoner, Pearson, the case stood much clearer; it was in evidence, that after the attack by the bushranger, Keys, Pearson appeared with arms; which, as the prosecutor was about to secure Keys, he delivered up to Boyd, who fired, and shot the prosecutor, wounding him in the eye; how Pearson got the arms, was a matter of conjecture; it was in evidence, that all the arms had been destroyed or carried away by the bushrangers, and therefore Pearson could not have got possession of the arms, unless by immediate communication with the bushrangers; that was a material point for their consideration; how did Pearson get the arms, or for what purpose? was it to assist the prosecutor or to encourage the bushrangers in this attack; were the words ``don't fire sir," to be taken as a command from Pearson, or were they spoken as a prudent suggestion of caution against he consequences of missing his aim.  From the evidence of Mr. Gatteral, the prisoner, Pearson, recovered part of the property; was his apparent friendship for the bushrangers in following them after the robbery, the result of a meditated connexion with them, or did it arise from a judicious policy on his part, for the purpose of recovering from them the property of his master.

The Jury retired for some time, when His Honor sent for the foreman, and enquired if they were likely to arrive at a decision within a short period; if not, he would adjourn the Court until seven o'clock, as he felt he required a short relaxation after so long a case; he did not wish to hurry them, but if they were not likely to agree, he would meet them again at seven o'clock.  The foreman observed, that he thought their deliberations were likely to occupy some time, and His Honor ordered the Court to be adjourned until seven o'clock.  A little after seven the Jury returned into Court, His Honor being in attendance, and pronounced the prisoner, Pearson, Guilty; Ball, Not Guilty.[ 2]

 

Notes

[ 1]This amazing story was also told in the Australian, 8 May 1835.

After pleading guilty, Keys was remanded for sentence: Sydney Herald, 7 May 1835.

 Some bushrangers were killed in the bush.  See Australian, 2 January 1835, graphically reporting the deaths of the Macdonald gang, some of whom were killed by Aborigines.

On aiding and abetting, see also R. v. Rizley and Hayes, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 60: ``Where a prisoner was indicted as being present aiding and abetting another for discharging a loaded pistol & wounding a constable, and it appeared that the prisoner was at the time in the Custody of another Constable but in sight of the transaction   Held that he could not be convicted."

[2 ] Keys and Pearson were sentenced to death: Sydney Herald, 18 May 1835; Sydney Gazette, 19 May 1835.

Published by the Division of Law, Macquarie University