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

R. v. Bennett [1837] NSWSupC 23

arson - convict discipline - convict service - Bathurst

Supreme Court of New South Wales

Dowling A.C.J., 4 May 1837

Source: Sydney Herald, 11 May, 1837[1 ]

Thursday, May 9.  Before the Acting Chief Justice and a Military Jury.

Thomas Bennett, assigned to Captain Hector, was indicted for wilfully and maliciously setting fire to a stack of wheat, the property of his master, at Boreenyrang, on the 13th of February.

Mr. David Donald - I superintend the farms of Mr. A. B. Smith and Captain Hector at Boreenyrang; the prisoner is assigned to Captain Hector; there was a stack of wheat set on fire on the 13th of February; the stack contained about four hundred bushels; on the 4th of February, early in the morning, the prisoner complained of sickness; I said if he was sick he must go to Bathurst, and I ordered him a pass; he shewed great unwillingness to go; I told him to go and clean himself and he went; I left home shortly afterwards and did not return until late; I went out into the kitchen and saw the prisoner grinding his mess; I enquired why he had not gone to Bathurst; he demanded a jacket, and I told him he had got all his slops, and there were none due to him; he then was insolent, and made use of threatening language, saying, as I had begun it he would see it to an end; he irritated me to such a degree that I knocked him down; from that night until about one o'clock on Saturday I saw noting of him; I found him in the bush in a contrary direction from Bathurst; I asked him if he had been to Bathurst; he said he had not; I asked his reason, and he said he had lost his pass, and I told him I should never look over such conduct, as I considered he was in the bust, and I intended to bring him before a Magistrate; I was obliged to go to Bathurst that day, and did not return until Thursday the 16th, when I found that during my absence on eof the wheat stacks had been consumed by fire, and the stack was two hundred and seventy paces from the dwelling; it was about twelve paces from the other stack; it was worth £300; there were five other assigned servants on the establishment that night; the establishment consisted of twelve men; the next morning I saw the prisoner; he was at his daily work; on the 18th I apprehended him on suspicion of setting fire to the wheat; Sheehan gave me the information; I am not aware of any bad feeling between the prisoner and Sheehan.

Cross-examined by the prisoner - I do not know who heard you make use of the threatening language; I pulled the stacks down because they got wet; I did not hear any of the men say it caught fire because there was damp wheat in it; I can undertake to say that there was no wheat in the stack when it was rebuilt that was not dry; before I took the stack down it had heated; I put the pitchfork over Dan. Sullivan's neck and threatened to strike him for putting the stack in a wrong shape and giving me insolence; I shook the boy Addison to make him tell me the truth; he is an assigned boy; it was before I struck you that you said you would end it; I offered fifty pounds reward on the farm for information about the wheat; Boree is about sixty miles from Bathurst.

Thomas Sheehan - I am assigned to Captain Hector; I recollect the night the wheat was set on fire; I cannot say the hour exactly, but about eleven o'clock I was going to the blacksmith, where I expected a servant of Captain Raine's to write a letter for me; they were in bed and I turned back, and saw the prisoner coming towards the yard; I went back until I got between a corner of the barn and a small stack; I saw him come over the fence with a lighted rag in his hand; I was close enough to him to see that it was a rag; I was about twenty yards from him; he stuck it into the corner of the stack, and ran through the stubble.  The stack light up immediately and I cried out, when Alick Goofy cried out too; I cried out for assistance for the stack; the stores being in my charge I went to see if they were right and returned to see who was absent from the fire, and found that Bennett and Bowyer were not there.  Mr. Glennie and Mr. Hollingsworth, who were in the house came to the fire; when I saw the, knowing that the house was without a lock I went to the store-door and unlocked it, when I heard some slobs falling and looking through the slit that was in the door and seeing somebody, ran round and saw the prisoner Bowyer and another man running away: I cried out to William Burke, but he did not come till there men were gone.  The men were round the fire at the time; the moon was going down.  All the men were at the fire except Bowyer and the prisoner.  The stack lit up the moment the rag was put in it; I went the twenty-two yards as soon as the prisoner put the rag in the stack, but it blazed before I got there; there was no fence between me and the prisoner; the rag was in a blaze in the prisoner's hand; Bowyer slept more that  a hundred yards from the stack; the prisoner could have seen me when I called out; there was a fence round the stack; I got inside the fence to see what the prisoner was about; I was over before him and saw him get over; he had the lighted rag in this hand then; I was only twenty-two yards from the prisoner; the moon was just going down; I did not speak to him because the stack was so close to the fence; Gooley's hut was about one hundred yards from the stack; I could not go to the blacksmith's until the gentlemen were gone to bed; it was about twenty minutes after the rag was put into the stack before the men came; I do not think Gooley saw me; I did not tell Mr. Glennie that I knew who set fire to the wheat; I went to the stores as they were in my charge, and I would have been punished if anything had happened to them; I saw the prisoner running through the stubble which faced the house and the stores; the stores were about a hundred yards from the stack; the stack took two days to burn down, and we had to watch lest the wool shed and other wheat would be burnt; Gooley ran to the house as soon as I cried out; I attempted to put the stack not before Gooley came, I tried to scrape the fire  away; the rag was placed in the corner underneath the thatch, and the thatch blazed immediately; I told Mr. Glennie what I had seen on the Saturday, five days after the fire; the prisoner was then in custody and I told Mr. Glennie he had the right person; it was on a Monday night that the stack was set on fire; I had not heard of a reward of fifty pounds being offered before I gave information; I was store-keeper and cook; Mr. Donald returned on the Thursday, but he had a friend with him, a Mr. Mackay, and I did not wish to disturb their conversation.

Cross-examined - When I first saw you, you were about twenty-two yards from me; I did not speak to you until I saw where you were going to; I was near Tucker's hut, but I was not going to disturb him until I had seen what you were about; I was often at the blacksmith's after Mr. Donald went to bed; I did not hear there was to be a reward until I had told this; I did not go to the men's hut; I did not pass Tucker's hut on my way to the store, I went round; I do not know the reason Burke did not come to me when I called to him; Padger, the overseer, was in bed sick; I recollect getting the boy Addison fifty lashes for coming twice for his rations; I never said I had found out my mistake; I never quarrelled with the prisoner; the prisoner was on the farm when he was apprehended; the morning after the fire I saw the prisoner going after bullocks; I did not like to tell Mr. Glennie until the return of Mr. Donald; I saw the prisoner, two or three days afterwards, trying to pull the stack down; the prisoner did not know I had seen him; I did not call out to him; I called out for assistance; I have been in the Colony upwards of three years, and have not been punished, I am a lifer; I do not want the fifty pounds; I shall take it if it is offered me; Mr. Donald said he would give fifty pounds for right information about it, and I said I could swear to Bennett; I said so before and after he told me so; I had seen Mr Donald several times before I told him.

Mr. Donald re-called - I offered the reward of fifty pounds before the witness told me the prisoner was the man; it was unquestionably the witness' duty to have told me of every thing that occurred; the prisoner might have absconded if he thought he was suspected; the witness knew the prisoner was to be punished; there was no other man for punishment but the prisoner.

Alexander Gooley - I lost my ticket-of-leave for asking Captain Ranking's man to sell me a cheese; I was hired to Captain Hector at the time the wheat was burned; I slept about a stone's throw from the wheat: I was lying a-bed awake when I heard a noise like reeds cracking, and I got up and saw the stack of wheat on fire; I gave the alarm, and ran towards the kitchen to wake the men; I then ran towards the stable and let the horse out; all the men mostly were there, but I did not see Bowley not Bennett; Bennett lived in my hut before, but had left it two or three nights before he went to Bathurst; the stack was on fire at the top and gave a great light, but I did not see any one there; I could have seen any one going from the stack towards the master's house; I heard no alarm until I had made it; I was lying awake and heard nobody cry out; I did not hear Mr. Glennie say that the stack had been set fire to; Sheehan was the only man that was dressed; Mr. Glennie told me the store had been broken into; I heard no alarm before mine.

Cross-examined by prisoner. - I saw you at the stack the day after the fire, getting water to put out the fire; I did not see Sheehan until most of the men were at the stack; If any body had given an alarm, I must have heard him; I heard Mr. Donald say he would give fifty pounds to any one who gave information; he said he would petition for a pardon for him; there had been a good deal of wet weather before the fire; there was no wind that night; I always told the same story.

John Tucker - I am free man, I was on Captain Hector's farm the night the wheat was burnt; I was asleep, and was awaked by an alarm; I was the first man at the stack; I saw no one about; the fire was in the roof of the stack; a blacksmith was the first person that came up; I did not see Bennett that night; the morning after Mr. Donald came home, I heard him say  he would give fifty pounds to the person who would give him information; if I had seen a person put a rag into the stack, I think I could have put the fire out; I would have tried: Sheehan slept in the store; the men generally go to bed from seven to nine o'clock; I do not think the stack had taken fire of its own accord.

This was the case for the prosecution.

In his defence, the prisoner said that he had gone to sleep with a shipmate, named Bowyer on the night in question, in order to have some chat with him, and that he believed the charge was preferred against him by the overseer from spite.

In summing up, His Honor pointed out the improbabilities of Sheehan's evidence, and the jury after an absence of a few minutes, returned a verdict of Not Guilty.




[ 1] See also Sydney Gazette, 6 May 1837; Dowling, Proceedings of the Supreme Court, Vol. 136, State Records of New South Wales, 2/3320, p. 1.   For an editorial on the system of law in the Supreme Court, particularly concerning convicts, see Sydney Herald, 1 June 1837.

Published by the Division of Law, Macquarie University