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

R. v. Mayne [1839] NSWSupC 34

murder - bushrangers - Carrawang Creek - Yass - accessories to crime

Supreme Court of New South Wales

Dowling C.J., 15 May 1839

Source: Sydney Herald, 17 May 1839[1] 

James Mayne and Edward Hall were indicted for being present, aiding, and assisting in the murder of Patrick Fitzpatrick, who was shot by some person to the Attorney-General unknown, at Carrawang Creek, on the 24th September.

About seven o'clock of the evening of the day laid in the indictment, four men in the service of Mr. J. Roberts, at Limestone Plains, were having their tea in a hut about twenty rods from Mr. Roberts's house, when three armed bushrangers, two of whom were the prisoner [sic], rode up to the hut, and told the men not to be frightened, as they would not hurt them, but were looking for fire-arms and money.  M[ayne stood sentry over][2] the hut as a guard over these men, while Hall and the other bushranger went to the house.  Fortunately Mr. Roberts was from home at the time, but in the kitchen of the house there were Mr. Marks, the superintendent; Jennings, a groom; Fitzpatrick, a jockey; a lad about seventeen years of age; a shepherd; and a black boy; and the cook, Peter Moran, was outside the kitchen.  Moran saw the unknown man come up to the house and go in at the back door, upon which he told him that there was nobody there, and followed him in; he said he would blow Moran's brains out if he did not stand back; the persons in the kitchen heard the noise, and all rushed out, when the bushranger said ``You mean fighting, do you?" and retreated a yard or two and fired his piece just as all the persons were endeavouring to get in at the kitchen doorway.  The piece must have been very heavily charged, for Fitzpatrick received five or six slugs in his head, and a bullet struck his upper teeth, went through the roof of his mouth, and out at the top of his scull; Mr. Marks received a ball which broke his jaw; Jennings received a slug in his neck and two shots in his breast, and the black boy received two shots which deprived him of the use of one of his eyes.  Hall, who appears to have then been at the front of the house, came round to the back, and asked who had fired, and seeing how matters stood, he told the other man that he thought he had fired without occasion.  Hall then searched the house, but finding neither arms nor money, took nothing.  They went to the stables and took two of Mr. Roberts's horses, which they changed for two of the horses they brought with them which they had previously stolen.  During the time that the bushrangers were at the station, Mr. Roberts and a friend arrived there, but one of the men contrived to give them warning, and they got away.  The noise they made alarmed the bushrangers, and th[e]y imagined it was the Mounted Police; they evidently intended to make a determined resistance, for one of them said ``Stand to your arms, and make sure of your marks."  They then went away, and in a few minutes afterwards, Fitzpatrick died.

The prisoners in their defence asserted that they were innocent, and had nothing to do with firing the shot.  They called no witnesses.

His Honor said that the prisoners, although charged in the information as accessories, were in the eye of the law equally guilty with the person who actually fired the shot.  It is clearly laid down in Mr. Justice Foster's book, that if a number of person go out with the common intention of committing a felony, and a murder is committed they are all equally guilty.  This doctrine was acted upon in England about fifteen years since in a case which His Honor was Counsel for the prisoners.  A party of idle young men went to the house of an old gentleman at Lewisham, the uncle of one of the young men, for the purpose of committing a burglary, when the old gentleman alarmed at the noise opened a window and looked out, and was shot by his own nephew; several of the young men were afterwards apprehended, and although they were in different parts of the garden and premises, and had never contemplated murder, yet as it formed a part of the crime they went out to commit, they were found guilty and executed.  The question, therefore, for the Jury in this case was, did the prisoners and the man who actually fired the shot go out for the purpose of committing a felony, for if they did, although they were not actually in sight when the deed was committed, in the eye of the law they were equally guilty.

The Jury after a few minutes absence, returned a verdict of Guilty.

The Chief Justice asked the Crown Prosecutor whether he knew the previous history of these men.

Mr. Fisher said that they had been out in the bush a considerable time, and were last session convicted of robberies and sentenced to be transported for life, and there were other charges against them.  Hall made his escape from Goulburn Gaol once, and had several times attempted to escape from Sydney Gaol.  The man who fired the sho[t], was shot a few days afterwards when committing a robbery.

Upon being called upon to say why sentence of death should not be passed, and execution awarded according to law, the prisoners again protested their innocence, and Hall said that he had gone all over the Colony, and had never killed anybody.

The Chief Justice said that, although in their own minds they might think themselves innocent, in law they were as guilty as if they had actually fired the shot which was fired in prosecution of their common design, the dipping his hands in the blood of a fellow-creature fell to the lot of another, but if they had been in his situation doubtless they would have done as he had done, and they were equally answerable.  They had been for a long time about the country armed plundering the inhabitants, but the law had at length overtaken them, and they must expiate their offences; they must shut their eyes to all worldly hopes, for the great stake of life was forfeited, and in this distant land, thousands of miles from father, mother, kindred, or friend, they would be ushered into eternity, with all their sins upon their heads.  He trusted that they would make the most of the short time that was allotted to them in this world by praying for the forgiveness of their sins, and availing them[s]elves of the services of the ministers of religion who would attend them in the Gaol.  His Honor then passed sentence of death, to be carried into effect on such day as the Governor may appoint.

Mayne appeared tolerably resigned, but Hall worked himself into a violent passion, and said he had been all through the country and never shot anybody, but he was sorry he didn't shoot every --- tyrant that he had met; he had been baited like a --- bull dog; if he only had the Judge there, he would muzzle him.  After he was removed from the bar, he continued his violence for some time.



[1]  See also Sydney Gazette, 18 May 1839; and see 1 and 19 February 1839 (guilty of house breaking).  See also Sydney Herald, 5 February 1839; Australian, 21 February, 16 May 1839.

[2]  Correction made by paraphrasing the account in the Australian, 16 May 1839.

Published by the Division of Law, Macquarie University