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

R v Castles and Sherwin [1836] NSWSupC 10

police, criminal defendants - highway robbery

Supreme Court of New South Wales

Burton J., 2 February 1836

Source: Sydney Gazette, 4 February 1836[ 1]

Before His Honor Mr. Justice Burton and a Military Jury.

John Castles and John Sherwin, were indicted for a highway robbery, and stealing various articles the property of Francis Mowatt, at Berrima on the 24th of October last; and John Monaghan for receiving the same, knowing them to be stolen as aforesaid.--

It appeared on the evidence of a man named Ecles, who is a servant to Mr. Francis Mowatt, that he was travelling accompanied by other men, on the day laid in the information in charge of a dray belonging to his master, which was conveying goods to his master's station.  On the Saturday afternoon, they passed the stockade to which the prisoners were attached, where he saw the prisoner Castles, who is a constable, who enquired where he was going, and where they were going to stop that night, which Eceles informed him, and travelled on.  The drays proceeded on about three miles from the stockade where they encamped for the night, and having taken their suppers went to bed, under the dray.  Between 12 and 1 o'Clock, they were attacked by two men, whose faces were blacked, and who dragged them from their beds, tied them to trees, and proceeded to strip the drays of the property, consisting of trowssers, shirts, tea, sugar, and other stores, which were in the dray, with which they decamped.  One of the men who attacked the dray was armed with a carbine, and witness noticed a peculiarity in his voice.  On the following morning, Ecles proceeded to the stockade to report the robbery, and there saw the prisoner Castles who had a carbine similar to the one carried by the robber, the night before, and when he spoke there was a similarity in the voice, which struck Ecles as being remarkable.  Ecles wished to see the officer, the prisoner Castles told him that he could not see the officer, but that he could relate the circumstances to him (Castles) which would be the same thing, as he would report it to the officer, and take steps to discover the robbery.  Witness when going to the stockade on the following morning discovered the traces of two men, who had come from the stockade towards the drays, but which had struck into the bush about half a mile from them.  One of the traces corresponded with those of the prisoner Castles, who when challenged with the fact, admitted that they were his, and stated that he had been in that direction the previous night looking after bushrangers.

A man named Walker in the service of Mr. Faithful the contractor for the supply of the stockade, deposed that the prisoners Castles and Sherwin had applied to him to dispose of some tea and sugar, which they stated they had taken from Mr. Mowatt's dray, and to that end he applied to the prisoner Monagan who is a corporal of H. M. 50th Regiment, stationed at the stockade to purchase it, telling him at the time that it had been stolen from Mr. Mowatt's dray, to which Monagan consented, and a bargain was struck that Monagan was to give £6 for the tea and sugar, and about 50lb. of the former, and 30lb. of the latter, towards which sum of £6 he paid the witness £2 which the latter gave to prisoners Castles and Sherwin, as part payment for the property.

About the quantity of tea and sugar lost from the dray was found in the prisoner Monaghan's hut, part of which it appeared he had sold at different times to the soldiers of the detachment.

The Jury retired about five minutes and returned a verdict of Guilty against all the prisoners, who were remanded; His Honor observing that it was next to impossible but that he would be called on to pass the sentence of death on one of the prisoners, although he would give the case, an impartial consideration.  A Constable instead of protecting the inhabitants, joined desperate characters in plundering the public; it was imperative that an example should be made as a warning to others.

 

In banco, Forbes C.J. and Burton J., 22 February 1836

Source: Sydney Herald, 25 February 1836[2 ]

 

John Castles, and John Sherwin, convicted of highway robbery, were next placed at the bar.  Sentence of death was passed upon the prisoner Sherwin; it appearing to the Court that his offence was aggravated by the circumstance of his having been a constable at the time he committed the robbery, and having used the arms with which he had been entrusted for the protection of the public in the perpetration of the crime of which he had been found guilty.  Sentence of death was ordered to be recorded against the prisoner, John Castles.[3 ]

Matthew Monaghan, a corporal in the 50th Regiment, convicted of receiving part of the plunder taken by the two last named prisoners, he well knowing it to have been stolen, and being himself, at the time, in charge of a convict gang - was sentenced to be transported for fourteen years to Van Diemen's Land.

 

Notes

[1 ] See also Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2423, vol. 22, p. 126.

[2 ] See also Australian, 23 February 1836; Sydney Gazette, 25 February 1836.  The Australian agreed with the Sydney Herald on the sentences, but the Sydney Gazette reversed the order, claiming that Castles was the constable sentenced to death, and Sherwin to death recorded.  That is consistent with the report of the trial published by the Sydney Gazette, which is reported above.

[3 ] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University