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

R. v. Dunn and Young [1837] NSWSupC 7

convict escape, assisting, penalty - sentencing discretion, mandatory sentences

Supreme Court of New South Wales

Dowling A.C.J., 9 February 1837

Source: Sydney Gazette, 11 February 1837[ 1]

Novel Case - Civil Jury.

Thomas Dunn, late turnkey at Bathurst gaol, stood indicted for feloniously and unlawfully permitting the escape of one William Redfern, convicted of cattle stealing, from said gaol, on 30th November, 1836 and Joseph Young, for aiding and assisting in the same.

Mark Wentworth Hayle - I am keeper of Bathurst gaol; I had William Redfern in my custody previous to the 30th November; he was tried on the 29th November; I know Dunn now at the bar, he was turnkey under me; after the trial I told Dunn, that above all prisoners in the gaol, he was to be particular about Redfern, and told him not to give him an inch of liberty; Redfern arrived free in the Colony; his father is respectably connected here, I do not think that Dunn was actuated by pecuniary motives; it might be through a friendly feeling; when Redfern  returned from the Sessions I locked him up, and gave the key to Dunn; there has been many attempts made to escape from the prison; Redfern could have no more opportunity than another to escape; about eight o'clock in the morning I heard of his escape, and on going to the prison, I found Dunn, who said that Redfern bolted from him, and that he was a ruined man; he appeared to be greatly alarmed, and asked me what he was to do; I asked him if he had been with the Police Magistrate and the Officer of the Mounted Police; he said he had been with both; he also said he had let him go to the kitchen to light his pipe, and he bolted; had Dunn left the gaol to pursue the prisoner, he must have left it wholly unprotected, as I was drawing rations at the time; Dunn appeared to be much confused, and seemed as if he did not know what to do; I understand the circumstance was communicated to the military before I heard it; the Police Magistrate said he saw him go, but did not know the man; the Mounted Police were immediately sent in pursuit, but without effect; Redfern has not since been heard of.

Cross-examined - I had no suspicion whatever that Dunn was actuated by any pecuniary motive; the Quarter Sessions Court is about a mile from the gaol; there is not sufficient attendants for the security of the prisoners during sessions; the kitchen was as secure in its way as any other part of the prison; the sentry was about 100 yards from the gaol at the time; the only reason I can assign for his being so far away is that it has been so long since an escape was attempted, that discipline was not carried on so rigidly; since the escape of Redfern, I found one of the bars loose in the kitchen window; whether he escaped through the door or window I cannot say; I am confident that the state of  reputation in which I found Dunn, was by no means affected; he was much alarmed; a sentinel has been kept on the gaol since, which this circumstance clearly shewed the necessity for; Dunn came from the Sydney Gaol, where he held a situation, to Bathurst; during the time he was about to resign his situation I had to use great persuasion to prevail on him to remain, not knowing where I could obtain as efficient a servant; on further examination, the witness proved the total insecurity of the gaol.

James Harvey, a private in the 28th regiment, examined - I was at Bathurst in November last, and in the guard-room on the morning of the 30th; I saw Dunn, he was returning from the direction of the Police Barracks, he seemed much confused, and, on asking him what was the matter, he said ``he's gone;" I asked him who? and he said, ``Redfern."

Samuel Evans examined - I am a serjeant [sic] in the Mounted Police stationed at Bathurst; on the Mounted Police station at Bathurst; on the morning of the 20th November I saw a black horse tied to a paling in the stable yard; it had a saddle on; I saw the horse a couple of hours before; Dunn gave the alarm; I did not see him after; I ordered a policeman to saddle, up, and go after him; he did so, but to no purpose; Dunn came to me again in about ten minutes and said the horse was gone, and that he was ruined and undone; he was much agitated, and appeared to be very much troubled in mind; in fact he ran about like a madman; I am certain there was no sham - every one pitied him, both in the barracks and out.

John Livingstone examined - I keep an inn at Bathurst; the prisoner Young stopped at  my house during the Bathurst sessions; he had a chestnut mare with him; there was a man there with a black mare also; he left and took the mare with him, about 12 o'clock, the day previous to Redfern's escape; Young was in my house taking his breakfast at the time the report came of Redfern's escape; I recollect seeing the man with the black mare go out of my yard in company with Young, about 8 o'clock in the morning.  (In consequence of some discrepancy in Mr. Livingstone's testimony in court and that taken at the police office, the Judge advised him to be extremely cautious else he would not find his way back to Bathurst); I believe Young is a labourer, and that he has been stopping for some time at Mr. Redfern's; the man that took the chestnut mare was the man that had the black one; Young and he had been in company together; I am positive I did not see the black horse that morning; I had some conversation with a Young about the black horse, but where he was put up at the night previous I cannot tell; I have no inclination to conceal the truth; I do recollect his saying that he was sent over the water; I did not think it any way unusual for him to take his horse to the other side of the water; the gaol is at the same side as my residence; the court-house is at the other side of the river; when Dunn came to my house he enquired if there was a horse of Redfern's there, I answered in the negative, he then said that young Redfern was gone; I heard Young say that he was a witness for Redfern on the trial.

Cross-examined - It was known that Redfern's people stopped at my house; Dunn, on the morning of Redfern's escape, came to my house in a great hurry, and without his hat, and said that Redfern was gone; I did not see Young and Dunn in any conversation at my house.

This closed the case for the prosecution. - For the defence.

Mr. John Weston was called - Previous to Dunn going to Bathurst, he was eleven months under my charge in the Sydney gaol, his conduct was very good, he was sober and attentive, in consequence, I recommended him to the situation at Bathurst, he having expressed a wish to go there.

Mr. John Cuff, Inspector of the Sydney Police - I know Dunn nearly fourteen years; I have been twelve years in the Sydney Police; he came to this Colony a free emigrant in 1823, there is no better man in the Colony.

Mr. Jones, Chief Constable at Bathurst, was next called, who also gave Dunn an excellent character, as also did Mr. Jilks, the chief constable of Sydney.

His Honor summed up with his usual precision, reading over the whole of this notes and commenting thereon as he proceeded: observing that it was a case of great public importance, that it required at the hands of the jury the greatest consideration, as in the event of the prisoners being found guilty, they would stand in the shoes of Redfern, which would subject them to transportation for life.  The jury retired for about twenty minutes and on coming into Court returned a verdict of guilty against both prisoners, but recommended Dunn to mercy on the ground of previous good character.  Remanded.

 

Dowling A.C.J., and Burton and Kinchela JJ, 20 February 1837

Source: Sydney Herald, 23 February 1837[ 2]

 

Thomas Dunn and Joseph Young, turnkeys at the Bathurst gap, who had been convicted of voluntarily permitting the escape of William Redfern, a felon under sentence of transportation for life, were placed at the bar.  The Acting Chief Justice said the prisoners had been convicted of a crime which left the Judge no discretion as to sentence; the law expressly said that any person permitting the escape of a prisoner with whom he was entrusted must take the prisoner's place.  The recommendation of the Jury that Young might be treated mercifully on account of his character could not be attended to, for without that good character he could not have been employed in the responsible situation he had been.  Both prisoners were then ordered to be transported for life.

 

 

Notes

[1 ] See also Sydney Herald, 13 February 1837; and see Dowling, Proceedings of the Supreme Court, Vol. 131, State Records of New South Wales, 2/3315, p. 126.

[2 ] See also Australian, 24 February 1837; Sydney Gazette, 21 February 1837.  The Gazette noted that Dowling A.C.J. said that ``however, if the prisoners, or either of them, could shew to the Executive any favorable circumstance, he would not oppose a mitigation of their punishment."  It also reported, like the Sydney Herald, that the written appeal on mitigation was of no effect as the court had no choice in the sentence and their characters were what gained them their posts.

 

 

Published by the Division of Law, Macquarie University