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

R. v. Preston and others [1835] NSWSupC 90

breaking and entering - road gang - bushrangers - confession - convict escape - rape, attempted

Supreme Court of New South Wales

Burton J., 12 November 1835

Source: Sydney Herald, 19 November 1835[ 1]

David Preston, William Harvey, Thomas Higgins, Thomas Taylor, Lewis Wingfield, John Robinson, Richard Lynch, Thomas Waterman, and Thomas Wright, Convicts attached to No. 10 Road Party commonly called Thorpe's Gang, stood indicted for breaking and entering the dwelling-house of Thomas Barnes, at Honeysuckle Flats, on the night of the 15th July last, stealing therefrom various property of the value of £10 and putting the inmates of the house in bodily fear.  It appeared from the evidence of Mrs. Lydia Barnes, that on the evening of the day laid on the indictment, she was awoke by the barking of the dogs, and loud and repeated knocking at the door; suspecting that they were bushrangers who had come with the intention of robbing the house, she called a person named Toms, a traveller who slept in the house that evening, hoping, that finding she was not alone, they would depart; Mr. Toms rose and came into the room, at which moment three men entered by the window which they had forced open, one of whom struck Mrs. Barnes a violent blow on the head which stunned her and she fell, and another struck Mr. Toms; on recovery a little from her insensibility, she saw the prisoner Harvey and two other men standing opposite the window; Harvey took her up in his arms, threw her on the bed, and attempted to violate her person; the two other men who were in the room with the prisoner Harvey, demanded where the money was kept, and was informed that it was in the box; they took the box away, and Harvey not satisfied put his hand under the pillow in search of more money, at the same time saying, he had a great mind to despatch her out of the way; she begged him to spare her life, and not leave a small family motherless, and told the ruffians that she would not know them again; they took the box into the verandah; Preston whom she knew by his voice, came to the window and asked for a few bottles of rum; she told him to take it but spare her life; Preston, a free man, had been employed by her husband to split shingles, and had been visited in the afternoon previously to the robbery by four of the prisoners whom he had treated with liquor, having borrowed the money from Mrs. Barnes for that purpose; by the agency of Preston, they became informed of the absence of Mr. Barnes from home on that evening; on the following morning, she communicated the circumstance to a military escort who arrived with prisoners, and expressed her opinion, that the men who had committed the robbery were attached to Thorpe's Gang, whither they proceeded for the purpose of apprehending them; it appeared from the evidence of Mrs. Barnes' servant, that hearing a noise at the house on the night of the robbery he got up, when he saw Havery and two other persons standing near the gate; Harvey came to him with a pistol in his hand, and told him if he did not go into the stable he would blow his brains out; he knew Havery, but could not distinguish the counternances of the other men; they remained in the house some time, leaving one man sentry on the stable where he was confined; when they went away he went into the house and found Mrs. Barnes and Mr. Toms bleeding from the injuries they had sustained; he dressed their wounds, and went into the verandah were he found a box, the contents of which had been taken away; he proceeded with the military on the following morning to the Road Gang, and picked out Harvey, Berwick, Waterman, and Robinson, as the men who had committed the robbery; Harvey and Waterman with two others had been drinking at Mrs. Barnes' in company with Preston in the afternoon of the same day; from the evidence of two prisoners attached to the Gang, one of whom was the watchman, it appeared that Harvey, Wingfield, Berwick, and Waterman, had been drunk and fighting in the Camp on the afternoon of the robbery, and that four men belonging to the Gang, had left it after the evening's muster and had been joined by two others strangers from the Stockade; Overseer Thorpe stated, that Harvey and Wingfield were absent on the night of the 16th July; Harvey when in the custody of Corporal Allen of the Military Guard at the Stockade, confessed that he was the man who had entered the house and had knocked Mrs. Barnes down; Taylor made a confession which was handed in by the Crown Solicitor, who stated that he had been cautioned not to make any confession under the hope of mercy, as there was sufficient evidence without him, which would be used against himself; he said he felt it necessary to make the confession in order to place the proper parties in the hands of justice; several of the men in custody of the charge were innocent of it, whilst guilty parties had escaped; the confession of Taylor was then read to the Court, and to the following effect: - The prisoner Higgins had been at the Junction for the purpose of seeing the Doctor, and on his return he informed Taylor that a party of men were coming from the Junction Stockade, for the purpose of robbing Mrs. Barnes' house; when they arrived at Thorpe's Gang, Higgings asked Taylor to accompany them, but he refused, stating that Mrs. Barnes knew him; he was told that would make no matter as he could remain outside and the property could be handed to him; he then consented to accompany them; the part consisted of Burns, Higgins, Quigly, Gatly, Mullins, and Taylor; Higgins was the man who snapped the pistol at Mr. Toms, and Quigly committed the violence on Mrs. Barnes.  The Jury returned a verdict of Guilty against Higgins, Preston, Harvey, and Taylor, cautioning them against entertaining any hopes of mercy, particularly Harvey, whose offence had been marked with gross atrocity.

 

Notes

[ 1] For the notes of the trial judge, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2421, vol. 20, pp 141 (rape) and 151 (robbery in dwelling house).  Harvey, Preston and Wingfield were charged with rape (Harvey as principal) and all were found not guilty of it.

Published by the Division of Law, Macquarie University