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

R v Williams, Bayliss and others [1835] NSWSupC 91

burglary - convict discipline - Parramatta - Field of Mars

Supreme Court of New South Wales

Burton J., 12 November 1835

Source: Sydney Herald, 19 November 1835[ 1]

Thursday. - Before Mr. Justice Burton and a Military Jury.

John Williams, Richard Bayliss, Edward Butterworth, Thomas Connelly, John Warner, and William Wright, the assigned Convict servants of Percy Simpson, Esq. J. P., for the district of Parramatta, stood indicted for burglariously entering the dwelling house of Phillip Casey, on the 2d September last, putting him in bodily fear, and taking there from various articles of wearing apparel, &c., his property.  It appeared from the evidence of the prosecutor, supported by that of his wife, that on the night of the day laid in the indictment, about the hour of 12 o'clock, a knock was heard at the door, and a sound of footsteps as of a number of persons; the prosecutor enquired who was there, and what they wanted, when one of them answered that they were the Mounted Police, and desired him to open the door immediately, which he refused; the door was then broken open, and five men entered with their faces covered with thin black cloth or gauze; when they got in they enquired where prosecutor kept his money; he said he had none in the house; they replied that they knew better, that he had sold a horse in Parramatta and must have the money in the house, in vain he protested that he had no money; they said they would soon see where it was, and made up a fire, threatening to roast him if he persisted in a refusal to tell them where it was; the prisoner Butterworth was placed in charge of the prosecutor, and told him if he dared to move hand or foot, or made any noise, he would blow his brains out; they were all armed with muskets; the other men commenced searching the house, and having possessed themselves of whatever they thought proper, two of them remained as sentries on the prosecutor, and the other three proceeded to the house of a neighbour named Lacey, taking the prosecutors wife with them; on arriving at Lacey's they kicked at the door, and demanded to be admitted as they were the Mounted Police; Lacey refused to open the door, when they forced it open and knocked him down; they then commenced robbing the place, and carried away every portable article it contained; they led Mrs. Casy back to her own house and departed; the black mask on their faces being thin, prosecutor and his wife recognized the features of Williams and Butterworth, while Lacey swore to Connelly, whom he had known previously; Connolly partially covered his face with his straw hat, which being broken at the angle of the rim his feature were much exposed; the prisoner Bayliss was spoken of as the man whom the other prisoners called the Governor.

Mr. Horne, Assistant Chief Constable of Parramatta, searched the huts of the prisoners on Mr. Simpson's farm, on the 25th September, and found in the possession of the prisoner Williams, a waistcoat and a pair of blue trousers, which were identified by Lacey as part of the property taken from his hut on the night the robbery took place; a loaded musket and various other articles were found secreted at the distance of about fifty rods from the huts; Warren and Wright being in the huts at the time, he took them in custody: His Honor, however, directed the Jury to find them Not Guilty, as no evidence had been offered which affected them, and they were discharged from the information, but retained on another indictment.  The prisoners called on Mr. Simpson, their master, and his son, for their evidence as to character since they had been in his employ; the prisoner Bayliss had received a bad character from a former master, but had, since he had been in his service, conducted himself satisfactorily; he had never heard of any thing against any of the prisoners, but had had much reason to suspect them of dishonesty, as he had been robbed to some extent himself, he could not not, however, trace it to any of the prisoners.

Mr. Simpson, junior, who had resided on the farm for about three months, was called on by the prisoners to say whether he had ever known them to be absent from the farm at improper hours, or had missed them in the morning; he stated that he had not known them to leave the farm, but they might have done so without his knowledge.  In answer to a question from His Honor, he admitted that he had never mustered them in the middle of the night, so that they had had opportunities of absenting themselves, but he had always found them present in the morning; His Honor observed, that it was a lamentable circumstance to reflect on, that at the short distance of the mile and a half from Parramatta, a body of Convict assigned servants had been so badly superintended as to admit of their ravaging the country around them in the manner exposed in this trial; it was much to be feared, that such laxity of discipline, as here presented itself, was too general on the part of the assignees of Convict servants in the interior; and it was high time that the attention of the local legislature were called to a consideration of the subject.

Mr. Simpson begged to observe, that he had done all in his power to maintain a proper superintendence over his men; he had had three free emigrant overseers on his farm, and would be the last person in the Colony who would endanger the public safety by an indifference as to the conduct of his men; he had no complaints against them; it was true that several robberies had been complained of in that neighbourhood, but it was known that a band of bushrangers had for some time interested that part of the country, some of whom were at length apprehended for robbing the mail.

His Honor observed, that he did not impute any special blame to him more than to others in possession of assigned servants throughout the Colony, but he could not lose sight of the fact, that they had been under no immediate controul from May to August, during the period which Mr. Simpson junior remained with them; it could not be supposed that a young gentleman of delicate health, a mere boy, could maintain that degree of superintendence over them which was necessary for the safety of the public; his admission proved that during that period, at least, it had not been attempted; he would ask what kind of superintendence could it be called which admitted a gang of convicts to sally out night after night for the commission of burglaries; it was not enough that our assigned servants did not rob us; it was a duty which we owed to the public to institute such measures as would prevent their practising their depredations on the public; the dray of a gentleman named Suttor had been robbed but a few day previously to the apprehension of these prisoners, and a portion of the property was found on Mr. Simpon's farm, near the dwelling of his men; Mr. S. here begged to say, that although near the place, it was not on his farm, as it was divided therefrom by a a creek; his Honor further observed, that the difficulty of providing efficient superintendence of the men on the farm, might readily have been obviated, by causing them to reside in Parramatta under his own eye, the distance from the farm being so trifling; Mr. S. observed that such a course was quite impracticable; he had no accommodation for them in Parramatta, and that he thought a gentlemen's private residence was no a fit place for a gang of convict servants; he had sent his son to the farm on account of ill health, during which time he found it absolutely impossible to obtain an overseer of good character, but he had withdrawn him in consequence of the vulgar and improper language which he heard in common use amongst the men; he felt satisfied that no gentleman could have done more than he had done to preserve order among his men.  It appeared by the cross-examination of the Solicitor General, that a female had been living on the farm with one of the men, and that she had been in the habit of carrying the stolen property into Parramatta and disposing of it.  The Jury found the prisoners Guilty.

The prisoners were again arraigned for a burglary on the dwelling-house of John Poole, at the Field of Mars, on the 2nd September last, putting the inmates in bodily fear and stealing therefrom sundry articles of wearing apparel, his property.

John Poole deposed that on the 2nd September last, about ten o'clock, a party of men came to the house, and expecting that they were the Mounted Police, who had been in the habit of calling, he opened the door; they had not demanded admission before he opened the door; one of them had previously called the prosecutor by name; on the door being opened. he saw five men armed with muskets and bludgeons; one of them asked for half-a-pint of rum; he was told that there was no rum in the house, as they never kept any; he was then asked for some bread, at the same time stating that they were all bushrangers; they asked how many persons were then in the house, and were told that the prosecutor, his wife, and an old man, were the only persons present; they brought the old man and placed him beside the prosecutor on a bench before the fire, and covered them with a rug; they then desired them not to turn their heads, threatening them with destruction if they did; one of them, the prisoner Butterworth, was placed as sentry over the two old men, while the others went into the bed-room, which they stripped; there was no candle in the house when they came, but they brought a candle with them for the purpose; the prosecutor's wife, whom they charge at her peril not to move her head from under the bed-clothes, gently lifted up the corner of the sheet, and saw the features of one of the gang, whom she afterwards identified as the prisoner Warren; an elderly man, whom she had known for some years in the neighbourhood, but who from her agitation she could not immediately call to mind; while ransacking the house, they found a pound of tobacco, and the prisoners Butterworth filled a pipe, and gave it to the prosecutor to light, desiring him not to turn his head, but to pass it over his shoulder; on lighting the pipe, the prosecutor passed it to the prisoner Butterworth, who had uncovered his face in order to put it into his mouth, when the prosecutor, who had ventured to disobey the injunction given him, caught a full view of his face; he expressed their determination to leave the poor people miserable, which they carried into effect, leaving nothing in the house but the chairs and tables, which they could not conveniently carry with them.  His Honor observed, that the charge of burglary must necessarily be abandoned as it had not been supported by the evidence, which had gone to shew that the entry had been effected by a false impression of the prosecutor as to their being the Mounted Police, and not in consequence of any act or representation on their parts; if the Jury were of opinion that they were guilty, it must necessarily be for larceny only; the evidence had not affected the prisoners Williams, Bayless, and Connolly, whom they would discharge by a verdict of Not Guilty; Warren and Butterworth had been sworn to, and the evidence which connected the prisoner Wright in the transaction, was that of Mr. Horne, who found a shirt in his bundle, which he claimed as his property, but which was subsequently sworn to by Mrs. Poole, wife of the prosecutor, as one of ten shirts taken from her chest on the night of the robbery.  Being cross examined by the prisoner Wright as to the means by which she identified it, she stated, it had a cambric front, a linen collar and wristbands, and was quite a new shirt; the shirt being produced, she examined the bosom, and stated in the most positive manner that that was a shirt which she had washed for a young man named Shelly; she could swear to her own platting, and it had never been worn nor washed since it left her house.  The prisoner directed the Jury to examine the shirt, and they would find that it had been ripped in the sleeve and sown up again; he would prove that it had been washed and got up by a female whom he would put into the box, subsequently to the time of the robbery, since which time the witness had sworn it had not been washed.

A woman of color, named Colquitte, with a white infant at her breast, was examined on that point; when she stated, that on the 10th September last, the prisoner Butterworth brought the shirt in question to her to wash it for Wright, which she did; and seeing the sleeve ripped she sewed it up; it had a calico collar and wristbands, with a cambric front, which was found to be the case.  Mrs. Poole, however, persisted in her identity of the shirt.  It appeared that the prisoner Butterworth was on the most intimate terms with the witness Colquitte, and had promised to marry her; she refused to say whether he were the father of her child or not, but admitted that her husband had been dead about eighteen months.  The Jury without retiring returned a verdict of Guilty of larceny against Butterworth and Warren, Wright Not Guilty.  The Attorney General intimated that there were other indictments against the prisoners, and His Honor expressed his determination to go through the whole of them, in order to ascertain the extent of injury to the public which had arisen out of the laxity of discipline which had been exercised in this case, and which was, he feared, a too correct representation of the general state of discipline throughout the Colony.

 

Notes

[ 1] See also Sydney Gazette, 14 November 1835; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2422, vol. 21, p. 103.

Williams, Connolly, Bayliss, and Wright were also tried for burglary of another house on 11 November, and all but Williams found guilty.  Wright was also found not guilty of assault with intent to kill, and guilty of attempted robbery on the same day.  Source: Australian, 17 November 1835; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2422, vol. 21, p. 69.  Williams, Connolly, Bayliss, Warren and Butterworth were tried again on 11 November, for another robbery: Burton, p. 115; all were found not guilty of burglary, but Warren and Butterworth were guilty of larceny (p. 127).

Williams, Connolly and Bayley (sic: Bayliss) were sentenced to death: Sydney Herald, 23 November 1835.

Published by the Division of Law, Macquarie University