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

R. v. Mills and others [1838] NSWSupC 78

robbery - Bowen's Hollow - military defendants in crime - convicts, iron gang

Supreme Court of New South Wales

Burton J., 11 August 1838

Source: Australian, 14 August 1838[ 1]

SATURDAY - Before Mr Justice Burton and a Military Jury.

George Mills, Samuel Pike, Isaac Hallen, and George Malpus were indicted for a highway robbery, on Thomas Woodhouse, at Bowen's Hollow, on the 3rd of June last.

George King - I am a prisoner and have been nine years in the Colony; I was in the iron gang at Bowen's Hollow; I was there nine months, and my sentence was two years for stealing a quart of wine from a dray.  I came out here for seven years; I received my Colonial sentence at the Quarter Sessions at Bathurst; I was there in the month of June, and knew of a robbery having been committed; on the 3rd of June Mills and Pike were on sentry in the middle of the day (it was Sunday) at Bowen's Hollow over the iron gang.  They called me to them, and told me they were going to leave the mountains in a short time and they wanted some money; they told me they were going to do a robbery and I should go with them; I said it would be better for them to go by themselves; they told me as I was in their charge I must go; I told them I would not go with them; I had never been out with them before, nor had I had any conversation with them before about it; Mills had asked me before to do a robbery but I refused; I was not very intimate with them; I don't know why they selected me; they called me by name; I was with the other prisoners, and they called me over to the stockade; the other prisoners saw me go over; they told me it was in their power to get me punished and it would be better for me to go with them; there was no agreement made then; after dinner we were mustered and put into out boxes about four o'clock in the afternoon; I went to sleep and was awoke sometime in the morning by Pike; it was dark, and he told me to get myself dressed and come out which I did; Mills was standing outside when I went out; they took me on the road and gave me a straw hat; I had my irons on; the road was about 30 or 40 yards from the stockade; we went on the road and came to a stone and Pike opened my iron so that it would slip over my heel, and pulled it off one leg and tied it up under my trowsers; they gave me a soldier's musket, and we went to Magpie Hollow where three drays were camped about a mile from the boxes; when we went up to the drays the dogs barked and I wanted them not to do the robbery; they told me I must as I had come, as their word would be taken before a convict's word; they had dark jackets and trowsers and straw hats on; I think it was a convict's dress, a grey jacket, but I can't say what coloured trowsers; I saw no person about the stockade when we went out; I don't know who was on the sentry when we left the stockade; one sentry stops in front of the boxes and one at the back; I saw no sentry when we left the boxes; we arrived at the Magpie Hollow about one or two o clock in the morning as near as I could guess; I did not take notice of the moon; the night was dark; Pike drew nigh to the dray and called out tie the dogs up; Mills said are there any strangers here, and the men answered no; we then went up to the dray and Mills told the men to stand; there were three men with the dray; Mills marched the bullock drivers a little distance from the dray, and he told me and Pike to take charge of them whilst he went and ransacked the dray; Mills told us not to let the men look at him or he would blow our brains out as well as theirs; after ransacking the dray he told the men to go back under their drays; I saw him turning every thing about, but I did not see him take any thing off; we were about 12 or 14 yards from the dray: Mills told the men if they moved for one half hour he would put the contents of his piece through their body; the men went under their dray and we went on the road towards the boxes; they slipt the iron on my leg, took the musket from me, and took me to the boxes; no one but me, Mills and Pike went to the robbery; this happened on Whitsunday night I think; it was not raining, nor was it blowing hard; Mills' trowsers had leather on down to the bottom, and as I before stated they had dark jackets and straw hats on; I was put in the sentry box when we returned to the camp; they told me they got six pound odd, and they gave me two shillings; they had three notes, a check for three pounds and some silver; Hallen was on sentry when we went back; they did not know exactly what money they had before they got to the Stockade and they looked then at the check; I gave my two shillings to Hallen who was on sentry; Hallen come up when I was in the sentry box; he had his musket on his shoulder, and asked if I had any money, and I gave him the two shillings; the other men said that they had given me the two shillings; and they did not ask any more questions; Mills or Pike was to give him either ten or twelve shillings the following day; I ran home after the robbery, and we all went the same pace; they made me go first and they followed close behind me; they put my irons on when we got to the camp; I believe I stated to the magistrate that they put my irons on half way between Magpie Hollow and the boxes; Magpie Hollow is long and it might have been half way between the end of the Hollow and the boxes; I don't know that Hallen did receive the ten shillings, and I told the magistrates he was to receive it; I never heard whether he received it or not; I knew the prisoner Malpus; on the same day he called an iron-gang man, named Jones, and asked him to go and rob a man named McGee of some brandy; McGee had formerly been in the iron-gang but his time was out; Jones refused and he then asked me and I also refused; I was kept some time in the sentry box and Mills and Pike then marched me to the cook house and called Elliott, the cook, who came out, and Pike said to him, here is a cheque and I hop you will cash it for me; the cook said he would the next day, and Pike told him to fetch a pint of brandy or rum from Chethams; Chetham kept a shop a short distance from the gang; I gave Elliott the cheque which Pike had handed to me; a man named Bond also stopped in the kitchen but he was absent that night; Elliott's brother, an emigrant, was in the kitchen, but I did not see him that night; I don't know how he came there; a man named Simpson, a prisoner out of irons, was in the kitchen; he was in bed, and I cannot say whether he was asleep or awake; Elliott was not dressed; me and Pike went into the kitchen; there was scarcely any fire, and Elliott looked at the cheque by the fire; I was placed as delegate the next morning, and had some of a pint of rum which was brought; the kitchen was very small, there were two beds in it, one bed placed, and a bed made on the table; no person laid on the table that night; Simpson was in the berth and Elliott slept with him in the berth; the next morning the alarm was given by the bullock drivers that they had been robbed; on Monday morning I was delegate and the cheque was cashed, some rum bought and the money was given to Pike and Mills who came into the cook house; the cook gave it to them; I got a glass of the liquor; they called me out after drinking the liquor and told me they would give me some money two or three days after, but they never gave me any; I don't know that Malpus got any money; he came down to the cook-house that day; he was drunk and said, ``I know all about it, King, I know all about it," when the dinner was cooked I was put in my box, and I never heard any more about it until a man named Jones was apprehended for a robbery, also a man named Howard; Howard was in my box and Jones was in the next box; I was also taken for the robbery, about a week after Jones and Howard were taken, and I then told Mr Blair, the police magistrate at the Vale of Clwyd, how the robbery was done; Simpson and Elliott remained at the gang after I was taken; I saw Simpson in Sydney gaol; I believe he absconded and was taken the day following; he was in the gaol with me one day; I cant say how many soldiers were at Bowen's Hollow at that time; sergeant Andrews was there; I don't think any one was awake when I returned to the box in the morning; the prisoners cant get out of the box, unless they are let out by the soldiers; the box I was in, No 4, was considered a good charactered box and was sometimes left open until 7 or 8 o'clock; we were locked in that night and corporal Weston had the keys; the boxes were locked with handcuffs like a figure of 8; I could not open it inside; I have opened a handcuff with a key at the Stockade; when Mills and Pike let me out of the box, I saw them put the handcuff on again so that no other men could come out; the cook-house was not locked as the men were not in irons; I don't think I was missed by my comrades that night; no one is ever let out at night; I was sentenced to fifty lashes, and I then told this to Mr Blair; I understood that Malpus was going to give information about it; Malpus told me that he knew all about it; but I don't know how he got his information, nor do I know if he got any of the money; at the time I made my statement, I did not know what information the bullock drivers had given to Mr Blair; the bullock drivers passed by the camp the next morning, but I did not see them come to it; I never saw Mills wear trowsers with leather before that night, and he shewed them to me and said he was going in disguise as a police man; I told Mr Blair there was leather on his trousers; the chains I wore was a round basil on each leg and a chain up the centre; his Honor cross-examined this witness very closely, but he did not deviate from his story.

Thomas Woodhouse, a servant to one Peter Murphy, at Bathurst, deposed to the manner in which the robbers went to the drays, as described by the first witness; their threatening the men at the dray, and taking the money; the leather on the trowsers of one man; he could not positively identify any of the prisoners, but stated that he believed Mills to be the man who ransacked the dray.

Thomas Harris, one of the men who was with the drays, corroborated the former witness's testimony, and spoke partially to the identity of the prisoner Mills, but only from general appearance.

John Southgate, the third man who was with the dray, gave his evidence to the same effect as the other two.

James Chetham - I hold a ticket-of leave for the district of the Vale of Clwyd: I am overseer to my brother who is free; he lives near the stockade and keeps a shop of general good; he had a wholesale store of spirits; I recollect hearing of a robbery at Magpie Hollow about the 4th or 5th June; the day after it had been committed, two of the soldiers wives came over to the shop, and said that Malpus had raised a scandalous story about the stockade, and that the sergeant had gone down to the police magistrate to get him punished; it was on a Monday I heard it; either that day or the day after one of the soldiers (Mills) bought a regatta shirt and paid for it by a Bathurst bank note; the shirt was 5s and he got 15s change; I can't say what time it was; the women come over for some milk or sugar; it was after breakfast in the forenoon; I did not say anything to Mills about it, at that time; he was in liquor at the time, and he told us that our place was set to be robbed by the same party who did the robbery at Magpie-hollow, and he told us to look out, as what he said was true: he had money in his possession for half a crown fell from his hand on the floor: he said that Magpie-hollow was the place to get money, and that by and by he would have a gang of convicts and get money like the rest; Elliott, the cook, came on the 4th or 5th, and brought a cheque for three pounds, and I gave him two Bathurst Bank notes and a pound in silver; he said his brother, an emigrant, had come down from Bathurst; Elliott was there after the soldier's wives; Elliott said his brother was going to fight a dog at Keenan's public house; I know that Elliott's brother was down; the cheque was on the Bank of Australasia for three pounds; I know Peter Murphy; but I am not aware that Murphy did not know who he got it from; I changed sergeant Andrews a forty pound cheque, and gave him this cheque in change; there was no other cheque for three pounds besides the one I speak of, in the change I gave to sergeant Andrews; I believe Elliott, the cook, took the bush after this; I know Pike but he did not change any money at my place:  Elliott got no rum at my place on the morning he got the cheque changed.

Sergeant John Andrews of the 80th Regiment - deposed that he had settled up the prisoner Mills account six weeks before the robbery, and that he was then 17½d in debt and had not received any money up to the time of the robbery; he was a shoemaker by trade but had been prevented from working on account of irregularity in his duty.

Joseph Perkins, assigned to Mr Morris, near Bowen's Hollow - was at Chetham's shop on the day after the robbery and saw Malpus there; Malpus said that he knew who did the robbery, and if they did not give him one pound he would come it.

Corporal Weston, of the 80th Regiment - recollected the robbery; Malpus told him that Mills and Pike had taken some man out of the boxes; Mills, Pike, Malpus, Luck, Hallen, and Mucroft were the guard that night; the detachment was in a state of drunkenness on that day, it being Whit Monday; witness was not drunk on that day; he could not say where the run was got; but supposed down the road, he believed the serjeant was sober on that day; he did not relieve the guard that night, as the men undertook to relieve themselves on sentry; this was customary amongst them; witness went to sleep at 12 o'clock and did not awake till morning; he did not know who was on sentry, or if there was any sentry at all; he left Mills and Malpus on sentry when he went to sleep; he had the keys of the prisoner's boxes in his possession, but could not say where they were or whether he had had them all night; he generally hung the keys on the ramrod of his musket in the guard house; he gave the keys to Hallen in the morning to open the boxes; the keys were in his pocket in the morning and to the best of his belief they were in his pocket when he went to sleep, but was not sure, as he generally gung them on his ramrod; the prisoners could not get out unless the doors were opened by some one outside; saw the witness Perkins at the Court at the Vale of Clwyd, but did not threaten him; heard Perkins give evidence but was not displeased at it; was on the road with private Luck who was one of the guard on the night of the robbery; they were going to Cox's river, and at Magpie Hollow Luck went over to a dray to ask for a light for the pipe and the men at the dray said that Luck was much more civil than the last men that were there; he then went on to relate the robbery; the men stated that one of the men had leather on his trowsers and that they took them for policemen.  An iron gang man named Howard had leather on his trowsers and that they took them for policemen.   An iron gang man named Howard had leather on his trowsers, and he was taken up for the robbery; knew the prisoner King who was under him; King's irons were examined by the officer at the Vale of Clwyd, but not at the stockade; did not know when Elliott and Simpson absconded as he was not guard; they went some time early in the morning of the day the constables went to the stockade to apprehend them.

John Howard gave no particular evidence save on the circumstance of his having leather on his trowsers as stated by the witness Corporal Weston; this he explained by his having leather guards on his legs to prevent the iron from chafing the leg, but had none attached to his trowsers as the robber was described by the drayman to have.

Mr Blair, Police Magistrate at the Vale of Clwyd merely spoke generally of the report of the robbery and the steps he had taken to investigate the matter.

His Honor directed the Jury that there was no evidence against the prisoners Hallen and Malpus who must be acquitted, as they were indicted as principals in the robbery, and the Attorney-General might take what course he chose against them  They were therefor discharged.

The two soldiers Hallen and Malpus were put into the witness box, but nothing of importance was elicited from them, Malpus denying the particular parts of the evidence that had been given against him by the former witnesses.

A witness named Jones, an iron gang man of very bad character, deposed, that Malpus had asked him and the approver King to go and rob a man named McGee of a keg of rum which they refused as they were personally known to McGee; Mills and Malpus also said that it would be very easy to go and rob drays at Magpie Hollow which was a regular camping place for drays.  He admitted that he had robbed a man and attempted to rob several others; was detected and punished; he got permission from the soldiers to go and rob; he expected to go to the robbery at Magpie Hollow as he was promised by Mills and Pike that he should go, but he was put out of it; Mills called him to the window of the box and told him that he would come in ten minutes and let him out; he accordingly got up dressed himself, and slipt off his irons, which he could do as they were too big for him; Mills and Pike went to the boxes between two and three o'clock, called him, and Pike then said that they could do without him, there were enough; Mills said he should like to have the Lagger, (meaning witness,) but they were afraid of awaking the other prisoners; witness called Malpus in the morning and asked him why he had been excluded from the party, but Malpus did not answer him; (the cool indifference with which this witness rehearsed his various exploits in the Colony, having been in irons ever since his arrival, stamped him a hardy villain.)

This was the case for the prosecution.

The prisoner Pike put in a written defence, which was read by the Clerk.

Robert Luck, who had been in Court during the trial was put into the box, and deposed that he was on sentry with the prisoner Pike, but could not say whether he left the guardroom after they came off sentry; there was nothing wrong when he was on sentry; the guard were sober on that night.

His Honor summed up at a late hour, and read through the whole of the evidence, and the Jury having retired for about ten minutes returned a verdict of Guilty against the prisoners.  His Honor desired proclamation to be made and briefly addressed the prisoners on the aggravated enormity of the offence of which they had been found guilty situated as they were as guards over the convicts and wearing the uniform of her Majesty.  It was their duty to set an example to the unhappy men over whom they were placed, instead of which they had joined them in their lawless pursuits; had furnished them with fire arms which had been entrusted to them for the preservation of the public peace, to rob the traveller.  He would not hold out any hopes of mercy being extended to them, as it was necessary that an awful example should be made, to prevent, if possible, similar breaches of the important trust placed in the soldiers.  He would not say that the doors of mercy were closed against them - but that rested with a higher power, and he would not have them indulge any hope of it.  His Honor then passed the sentence of death on the prisoners, to be carried into effect at His Excellency's pleasure.

The trial lasted the whole of the day until six in the evening, and excited the greatest interest, especially amongst the troops, many of whom were present.

 

Notes

[ 1]See also Sydney Herald, 13 August 1838; Sydney Gazette, 14 August 1838. This case was also recorded in Burton, Notes of Criminal Cases, vol. 36, State Records of New South Wales, 2/2436, p. 113.  At the same page there are several loose pages containing the deposition of Thomas Simpson, a convict.

After its law reports on 13 August 1838, the Sydney Herald pointed out that upwards of a dozen soldiers had been charged with felonies in this session of the criminal court, some in concert with convicts under their charge.  See also R. v. Fuller and others, 1838.

Published by the Division of Law, Macquarie University