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

R v Fowler and others [1835] NSWSupC 42

highway robbery - Lansdowne Bridge - convicts, road gang - prisoners, cross-examination by - bushrangers, rewards - reward

Supreme Court of New South Wales

Dowling J., 11 May 1835

Source: Sydney Herald, 18 May 1835[1 ]

Before His Honour Mr. Justice Dowling, and a Jury of Military Officers.

The following prisoners attached to No. 2 Road Party, on the Liverpool-road, in the neighbourhood of Lansdowne Bridge, were arraigned on an indictment for highway robbery, in stopping the cart of Esther O'Brien, on the Liverpool-road, and taking from her person sundry moneys and various articles, her property, on the 14th April last, viz :  William Fowler, John Jones, George Brotherton, Charles Sinnott, William Smith, Henry Smith, William Whitehead, Matthew Burns, Edward Brien and Peter Wood, overseer of the party, who stood indicted for aiding and abetting the before-mentioned prisoners, after the fact.

Esther O'Brien, wife of a settler residing at Campbell Town, deposed that on the night of the 15th April last she was returning home along the Liverpool Road, and when at a short distance from No. 2 Road Party, eight men came out of the bush, and surrounded the cart in which she was sitting; she had another team, driven by a boy, which they suffered to pass on ; some of them got into the cart, and commenced pillaging it of its contents; one man had a pistol in his hand, and he desired the rest not to hurt the woman; they took 24lbs. of soap, 2lbs. tea, 3 yards calico, 10 yards muslin, two shirts, some fresh fish, two dollars and two half-crowns from her person.  After possessing themselves of these articles they went again into the bush; she was unable to identify their persons; their faces appeared to have been blackened.

James Moran examined. - I was employed as a watchman at No. 2 Road Party on the night on which Mrs. O'Brien was robbed, the men are usually mustered three times every night, at 8 o'clock, 11 o'clock, and again at 3 o'clock; the constables came to the camp after the second muster, when the robbery had taken place; the men were then mustered and found to be all right; I saw the prisoner Smith go to the door of the marquee, where the other prisoners slept, and say ``come along my lads, now's your time, there's a cart just coming along the road;" Fowler, Brotherton and Burns left the marquee, and they went on the road near to where there was a fire; four others left the huts and went a little way down the bush, and returned in a few minutes with short sticks in their hands like constables' staves, also grey caps; the sticks appeared to have been ready cut for the occasion; a few minutes after they had returned from the bush I heard the screams of a boy on the road; I went round the huts to muster the men, and the prisoners at the bar were all absent; William Smith, Mahony, Sinnott and Whitehead are the four men who last went out of the huts; I took a piece of lighted bark and examined their hut, and found they were gone; I heard of the robbery in about half an hour afterwards; I saw the prisoner Sinnott with one of the caps the same afternoon a little way in the bush; he was cutting holes in it, apparently for the eyes, nose and mouth; I asked him what he was doing that for, he told me to go away and mind myself.  I was afraid to say any more on the subject, and went away; the caps were served out with the Government slops, but they did not wear them - they had been kicked about the camp as of no use; they mostly wear hats; the party consists of twelve men, exclusively of myself; on the next morning before daylight I saw Bryan go to a tree where some articles were afterwards found.  I saw the prisoner Brotherton cut the heads of some fish, which he buried with his foot in some ashes near the huts, and fried the rest in the frying pan; there is no fish served out to the gang as rations, nor ware there any pools or streams near the gang, where they can obtain fish; I did not see the prisoner Henry Smith leave the camp at all during the evening; the overseer, Peter Wood, now a prisoner at the bar, was at Martin's public house at the time the robbery was committed!  I have been attached to the gang seven months, and have been in the country about six years; I have been in some trouble since I have been in the Colony; I served twelve months in an Iron Gang, before I joined this party, for absconding, and also six months previously for a similar offence; I am twenty years of age.  When the overseer came home I told him that the men had left the camp, he told me to keep a look-out for Sinnott, as he wished to grab him absent; the constable came after the robbery, and the men were again mustered and found all right.  [This witness was minutely cross-examined by the prisoners, the object of which was to shew that he had been in various places of punishment, and was therefore not entitled to credit.]

Mr. Frederick Meredith. - I am chief constable of Liverpool; in consequence of hearing of the robbery of Mrs. O'Brien I sent for the whole of the gang, who were about removing nearer to Liverpool; it was on the Saturday after the robbery; the overseer was absent, but the hut-keeper had charge of the gang, who handed me a list signed Peter Wood, overseer; there were two carts drawn by bullocks with the party; William Smith had charge of the first cart, in which I found a pair of boots, in a small canvas bag, which were afterwards claimed by a settler named Herbert who had been robbed near the road gang a few nights before; there has been no owner for the bag; I also found in a harness-cask a quantity of soap in a box, and a blue jacket, also claimed by Herbert; I also found two grey caps, made like masks, in a harness-cask which was in the cart that Whitehead had charge of; I believe a harness-cask forms part of the establishment of a road gang; there were twelve men with the carts; I knew the prisoner Brien; I was informed that he had absconded; I knew that he belonged to the gang previously to the robbery; Fowler was then in custody for another robbery; I found in the first cart a pistol resembling one which belonged to the Police establishment, though I cannot swear to its identity; it has not been claimed; I have a particular mark which I put on all the arms which belong to the Police, and the pistol produced bears a similar mark; I also found in a bag in one of the carts a quantity of powder; Wood, the overseer, (whom I caused to be apprehended immediately on stopping the gang,) said the powder belonged to Government, and had been furnished to the gang for the purpose of blasting rocks, I examined the powder with which the pistol was charged, and found it to correspond with that in the bag - it was a coarse kind of powder, such as is used for blasting; it had no business whatever in the cart; Wood ought to have kept it in his own possession, and have taken care that it was properly disposed of; it was not of course to be left at the discretion of the men to do with it as they thought proper; on removing, he ought to have delivered it up to the Principal Overseer at the Bridge, as he had no farther occasion of it; on searching the pockets of the jacket I found a knife, which was claimed by Jones, and subsequently by Woolf, the man who accompanied Mrs. O'Brien when she was robbed; I produce the knife; I found some small shot, and some coarse powder, in the jacket pocket of the prisoner Burns, corresponding with the power and shot with which the pistol was charged.

Cross-examined by the prisoner William Smith. - Taylor, the hut-keeper, was in the cart which you were driving when I stopped you; he said he had charge of the carts, as the overseer had gone to the contractor's; he was taken into custody as well as the rest, but was discharged by the magistrates.

Cross-examined by the prisoner Whitehead. - You were driving the second cart, which was laden with various lumber, and covered with a tarpaulin; I do not remember stating that nothing was found in your cart - the caps were found in a harness-cask in your cart.

Cross-examined by the prisoner Burns, (this was a youth about eighteen years of age, who displayed a shrewdness in his cross-examination of the Chief Constable, which will no doubt render him an object of peculiar regard, by his associates in crime; he seemed ambitious of being the spokesman, and altogether exhibited a hardihood characteristic of the most experienced delinquent).

Witness, - I believe there was a small quantity of tobacco dust, and a few hob-mails among the powder and short; I did not mistake the tobacco dust for powder, and the hob-nails for shot; there were about twelve grains of shot; but I did not of course count the grains of powder; I think there was about a small thimble full; it is not in Court; the constable neglected to preserve it; it was put on the Magistrates desk and swept off; the constable that took it out of your pocket in my presence, is not here; I did not think it necessary to bring him; the powder and shot was given into my hand, and I put it before the Magistrates.

Prisoner. - A pretty fellow you are for a chief constable; has not brought either powder and shot, which you say were taken out of my pocket, nor the constable who found it; what sort of evidence do you call that? recollect you are not in the Liverpool Court House now, my chap, cutting capers before the Magistrate; you had it all your own way there I believe, eh; you are in the Sydney Court now my lad, you must not think to do as you like here; I suppose you are aware what an oath is; you know the consequence of telling a lie; you thought you would make a good job of us; let's see, there's ten of us; aye, £50 that's not bad; you expected to get all that, did you not?  What did you do with my 10s. which you took off me in Liverpool Court House, which I earned by my industry?

Witness; - I did not expect any thing by your apprehension - I have no interest in your conviction.

By the Court, - They were not taken as bushrangers; there is a reward for apprehending bushrangers who are charged with robbery.

John Wolfe corroborated the testimony of his mistress as to the robbery; cannot swear the pistol produced is the one the men had at the robbery; is sure there were eight men about the cart; knows the knife produced, by the notches about the handle; the boy who gave it to him is present; he is about 16 years of age; the cart in which he was, when the prisoners came on the road ran away; the boy made no alarm.

Henry Holdsworth - I am fifteen years old; I am not a native; I lent the knife produced to my fellow prisoner, John Woolf; I remember the cart being stopped on the Liverpool Road; I could not take notice of the men; I made no cry; I was very frightened; it was a cloudy night, but it was not rainy - the moon was up, but it was overshadowed entirely with clouds; when the men first came on the road, I went on first till I got out of sight, and then I waited for my mistress; two of the men followed my cart a little way, but they went back; they did not attack me; my team was a bullock team; I would not know any of the prisoners; there was a fire at the prisoners camp; we passed the fire before the robbery took place; I have been two years in the Colony.

Mrs. O'Brien recalled - When I went to Liverpool I reported the robbery; the shirt produced was found in the prisoner's camp; it was in the bundle I was robbed of; it belongs to my husband; it was made by my sister, but I marked it; I did not take notice of the pistol the men had on that occasion; they did not speak, except one man, whose voice is like that of the witness Moran, but I would not be positive that he was one of them.  [The witness Moran stood up; he said, he was aware that he had a peculiar voice, but it was owing to a bad cold and general debility.  He seemed to have suffered from disease, and exhibited such a wreck of constitution that, although only twenty years of age.  His Honor the Learned Judge observed, that he had certainly mistaken him for fifty, and he thought he was a tolerable judge of ages.]

William Crisp, a constable, of Lower Minto, was sent to search the huts; found in a cooking utensil, used for preparing the men's dinners, five bars of soap, and several other articles claimed by Mr. O'Brien, behind a box; examined the men's faces; had been told they had blacked faces; there was no appearance of blackness about them; they did not appear to have been recently washed; the overseer said he had been with the men all the evening.

His Honor, minutely recapitulated the evidence; the prosecutrix had given undoubted testimony that a robbery had been committed on her on the Liverpool Road, but she does not endeavour to fix the fact on any of the prisoners at the bar, appearing desirous only of confining herself to the mere fact of having been robbed; she also states, that one of the men, whoever they were, had a pistol in his hand, and advised his companions in guilt not to hurt the woman; certainly some proof, that as far as he was concerned, he did not wish to add violence to robbery; they would however be aware, that when persons go out on the King's highways, for the unlawful purpose of robbery, arms are not to be supposed to be mere matter of form; none of the witnesses who had been called had fixed the identity on the prisoners, but then came the testimony of the material witness Moran; the Prisoners had endeavoured to impugn his character, but it would be for their consideration, how far he was entitled to credit; but for his testimony the case must have fallen short of that measure of proof, which had been brought before them, in the establishment of the guilt of the prisoners.  The evidence of persons in his situation was necessarily to be looked on with suspicion; but he was a competent witness, and if his testimony were found to be consistent, and confirmed by any collateral circumstances, it was entitled to credit; whether Overseer Wood was cognizant of these proceedings, and encouraged it, can only be a matter of conjecture; but it seemed according to the testimony of Moran, that he shewed some disposition to detect them, as he told Moran to keep a look-out for Sinnott, as he wished to detect him absent; even the witness Moran had not shewn himself to be a voluntary witness as to all the facts; for it was not until he was closely cross-examined by the prisoners, that the important facts, which identified four of the prisoners with the robbery were elicited, so that they had by their own indiscretion strengthened the case against them; they had heard the evidence respecting the caps, one of which they had seen exhibited before them as a mask; they would consider if they had been so cut, for any legal or necessary purpose; it certainly did not seem essential to them as articles of dress, that they should have been cut in the manner displayed; they had been found in the possession of the prisoners, and it would be for them to say, whether they had put them to the use which was to be inferred from the evidence of the prosecutrix, who states her opinion that their faces had been blackened.  They would have observed that no part of the evidence affected Henry Smith, whom they were bound to acquit; the prisoner Wood had been indicted for aiding and abetting the prisoners in the commission of the robbery; they would consider how far the evidence affected him on that information.  The Jury retired a few minutes and returned a verdict of Not guilty, in the case of Henry Smith and Peter Wood; all the other prisoners Guilty.[ 2]

 

Notes

[1 ] See also Sydney Gazette, 12 May 1835; Australian, 19 May 1835.  For prosecution of other members of the Lansdowne Bridge gang, see R. v. Gladmun and others, and R. v. Harris and Fitzgerald, Sydney Herald, 18 May 1835.  See also Australian, 19 May 1835 (R. v. Harris and Fitzgerald, R. v. Byrne and Smith).

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

Published by the Division of Law, Macquarie University