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

R v Walker [1836] NSWSupC 68

murder - Bushranging Act - bushrangers - self-defence - New England

Supreme Court of New South Wales

Kinchela J., 4 November 1836

Source: Sydney Herald, 7 November 1836[ 1]

A Military Jury was now sworn in.

Thomas Walker, assigned to Mr. Henry Dangar, was indicted for murdering some person to the Attorney-General unknown, by shooting him at New England, in the county of Brisbane, on the 23d of April.  A second count laid the persons name as John Poole.

The Attorney-General in opening the case said, that the murdered man was a bushranger, and the prisoner was in commission with him, and had deliberately shot him.  Although by law, any Constable or other free person was authorised to shoot a bushranger if he had no other means of detaining him; if a person in connexion with bushrangers deliberately kill one of them, it was certainly murder.

Hugh O'Neil. - I am a private in the Mounted Police; in April last I was on duty at Colonel Dumaresq's; I heard that bushrangers used to be harboured at Mr. Dangar's station, about five or six miles from Dumaresq's.  I went there in company with another private and a sergeant.  The prisoner at the bar was shepherd there; I found him at some distance from the station with some stolen property in his possession, at eight o'clock in the morning; he had two jackets and a pair of trousers on his arm, with Colonel Dumaresq's marks on, I apprehended him.  He said that the bushrangers had given him the things, and that they were to rob Mr. Cory's and Mr. Chilcott's station the day after.  These stations were about twelve miles from Mr. Dangar's.  We went to Cory's station and remained there all day, at night we left the station and encamped in the bush.  We herd of their committing more robberies at Dumaresq's, and as the prisoner was only hindering us, we let him go at large.  We came up with the bushrangers on the morning of the 23rd April, when they were robbing Mr. Dumaresq's station a third time.  We were in the house when they came up and went out; we had left our horses away from the house; two of the bushrangers had horses; there was one on foot, who went towards Danger's station, we fired at them but they escaped.  We proceeded to Dangar's station; on the road we found a jacket.  The prisoner had no jacket, he said that the bushrangers had been there and taken his jacket away from him.  The next morning we again went to the station; the prisoner had a musket and fowling piece, which he held up as we rode up and said, here they are.  We took him into custody again, and he told us he shot one of the bushrangers that morning.  He said that one of the bushrangers came to the hut at three o'clock in the morning, and forced him to go along with him to rob one of Mr. John Dangar's stations.  On the road, the bushranger, James Poole, was tired and laid down, leaving him (the prisoner), to keep watch and see that the Police did not come down, and that while he was asleep he shot him dead.  He said the man never moved.  I asked him why he shot him, and he said to save himself.  The prisoner accompanied us to the spot where the body was lying in the bush.  We stripped the body, the wound was through the heart.  He did not tell me he had shot the man until we had taken him in charge.  We found two blankets, some powder and shot, and things lying near the body.

Cross-examined. - You told me that that the bushrangers had come to the hut and killed a sheep belonging to your master, but you did not tell us so until we found the sheep in the hut under the bed.  You did not say your clothes had been stolen.  I never found any bushrangers in your hut, but from my finding stolen property there, and other reasons, I am sure you had connexion with them.  Munday [sic], the hutkeeper said you were forced away, but he is as big a rogue as your are.

Re-examined - He said that Poole came to the hut and said, Walker, you must come with me to rob Mr. John Dangar's station, and that the prisoner said he did not want to go, but Poole said he must, and he went.  Walker told me his name was James Poole, but that is supposed to have been a false name.

Mr. Adam Wightman - I reside at Colonel Dumaresq's establishment of St. Heller's; the jackets produced at the Invermein Court-house, by the mounted police as having been taken from the prisoner, were the property of Colonel  Dumaresq, and had been stolen by bushrangers.

Serjeant John Temple corroborated the evidence of private O'Neil.

The prisoner made no defence.

In putting the case to the jury, Mr. Justice Kinchela said that under the circumstances of the case, the only justification would have been that he had killed the man for the purpose of preserving his own life.  It was no excuse that he had done so for the sake of procuring a mitigation of punishment for other offences which he had committed.  Guilty - Death.  Ordered for execution on Monday (this) morning.[ 2]

 

Notes

[1 ] See also Sydney Gazette 5 November 1836; Australian, 8 November 1836.  The Bushranging Act was renewed in 1836: 6 Wm 4 No. 17.

[2 ] Walker was executed on 18 November 1836: Australian, 22 November 1836.

Published by the Division of Law, Macquarie University