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

R. v. Gawenlock [1838] NSWSupC 101

bushranging - attempted murder - reception of English law, date of reception - felony attaint

Supreme Court of New South Wales

Burton J., 3 November 1838

Source: Australian, 6 November 1838[ 1]

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

Joseph Gawenlock was indicted for stealing from the dwelling house various articles the property of William Flanagan, at Bathurst, on the 18th May last.

William Flanagan - I live at One Tree Fall, at Bathurst , about two miles and a half from the settlement; I am a ticket of leave man and a tenant of Mr Perrier.

His Honor said he was bound to take judicial notice of the prosecutor being a prisoner of the crown, and the indictment laying the property in his name, in the face of an act of the imperial Parliament, which expressly said that such persons could not hold property - the prisoner must be acquitted.

The jury found a verdict accordingly.

The prisoner was again indicted for an attempt to kill and murder John Williams, at Bathurst, on the 19th of May last.  The indictment contained several counts varying the offence.

John Williams - I am a constable in the Bathurst police; I was at Mrs William Kable's public house on the 19th of May last, and the prisoner came in; I was standing at the bar, and a young man named Jones told me the prisoner had a pistol about him; he went out in the yard and I followed to capture him, when he drew a pistol from the pocket of his coat, pointed and flashed it at me; it was about seven o'clock at night, and I could not see distinctly; the muzzle of the pistol passed my left cheek, and the priming burned my hair; I was about a minute struggling before he attempted to free it; I had told him I wanted him to go along with me; I had my staff with me and he must have seen it; he only stopped a minute or two in the bar of the house, and had nothing to drink; I had never seen him before; I secured him, took the pistol from him and unloaded it; the pistol was loaded with gunpowder and two balls; the prisoner is a runaway from the stockade at Hassan's Walls; the pistol produced is the one I allude to; the prisoner had seven or eight and twenty loose balls, some powder and some ball cartridges in his pocket.

Richard Jones - I am a labourer and live at Bathurst; I was at Kable's public house on the 19th of May last, in company with constable Williams; the prisoner came in and spoke to me; he asked if I knew him, and said he was a blacksmith at the Lumber Yard at Bathurst; I saw he had a pistol, and I told constable Williams that the prisoner was not a constable, and that he had a pistol about him which was suspicious; the prisoner went out, Williams followed him, and two or three minutes after I saw the flash of a pistol; I asked Williams if he had secured him and he said yes; the pistol was in his breast under a shooting jacket.

Thomas Jones - I am chief constable at Bathurst; I know the prisoner; he is Joseph Gawenlock by the Henry Tanner, a prisoner of the crown, and a bushranger; he was reported in the Government Gazette as a runaway, he absconded twice, first from the iron gang, and afterwards from an escort; I know the prisoner personally; he was a blacksmith in the Lumber Yard at Bathurst; he was sentenced to an iron gang at the Quarter Sessions at Bathurst for stealing in a dwelling house; I was present on his trial and heard him convicted and sentenced.

This was the case; the prisoner offered no defence, and His Honor briefly put the case to the Jury, who retired and were absent about half an hour, when they returned, and the foreman stated that they found him guilty on the first count, for intent to murder.

Mr Carter observed that there were several other indictments against the prisoner, but His Honor said that he had turned the matter over in his mind, and by the new act, lately come into operation, he found that none of the offences for which the prisoner might be indicted were capital offences, although they were at the time they were committed, and he should take upon himself to pursue the lenient intent of the legislature, and treat the prisoner's offence as if committed since the act came into operation in the colony.  He then ordered the sentence of death to be recorded against the prisoner, with a recommendation that he should be transported to Norfolk Island for life, and never returned to the colony.



[ 1]See also Sydney Herald, 5 November 1838; Sydney Gazette, 6 November 1838.  The Sydney Herald recorded the following: ``Mr. Carter informed his Honor that there were several other informations against the prisoner, but His Honor said that as none of the offences were capital, under the new Act of Parliament which have lately come into force, although they were at the time they were committed, he should take upon himself to carry the lenient intentions of the Legislature into effect, and treat the prisoner as if the offences were committed after the Act came into operation.  His Honor then ordered sentence of death to be recorded against the prisoner, with a recommendation that he should be transported to a penal settlement, and never allowed to return to the Colony."



Published by the Division of Law, Macquarie University