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

R. v. Young [1839] NSWSupC 62

attempted murder - convict escape - bushrangers - Aboriginal defendant - Big River

Supreme Court of New South Wales

Dowling C.J., 16 August 1839

Source: Sydney Herald, 19 August 1839[1] 

FRIDAY -- Before the Chief Justice and a Military Jury.

Richard Young was indicted for shooting at Joseph Fleming, with intent to murder him at the Big River, on the 26th May, and William Allen, John Rose alias Henry Ellis, Thomas Spencer and Mary Ann, were indicted for being present aiding, assisting and abetting.  A second Count charged, that Richard Young being a convict illegally at large fired at Fleming to prevent his apprehension, and then charged the other prisoners as accessaries [sic].

This case was very simple.  Mr. Fleming, a stockholder in the Liverpool Plains district having heard that a party of bushrangers, who had been committing many outrages, were in a hut on the banks of the Big River, made up a party consisting of himself, Mr. Freer, Mr. Brown and three free men named Clark, Pearson, and Istead.  The bushrangers were in a hut belonging to a Mr. Marshall, on the banks of the Big River and immediately opposite to it was a hut belonging to Mr. Scott, to which Mr Fleming and his party went.  On their way to the hut the party fell in with three servants belonging to a Mr. Smith one of whom Mr. Fleming sent to the nearest police station, and another to Mr. Fitzgerald's station for further assistance.  When they arrived at the hut Allen was walking up and down outside.  Young came out of the hut with a gun in his hand and asked Mr. Fleming if they wanted them; Mr. Fleming replied that they came for the purpose of taking them.  Young said that they would never be taken, every man of them would be shot before they would be taken, to which Mr. Fleming replied that they were determined to take them dead or alive.  Young called them cowardly dogs for standing behind the hut, when Mr. Freer said that if they would come half way across to meet them they would see whether they were cowards.  Young and Allen then went into the hut and Allen shortly afterwards came out with a great coat on, and a belt with a gun on each side of him, a sword and a gun in his hand.  Allen kept parading up and down in front of the hut and Young kept going in and out of the hut sometimes with one gun and sometimes with two.  The prisoner Rose and the black woman were out looking for horses, and after the party had been watching the hut several hours, they came up with some horses.  Allen, Young and Spencer then came out of the hut with a bridle and gun in their hands and made towards the horses which the man and woman were driving.  Mr. Fleming then called upon the prisoners to stand but they still pushed on, upon which the party fired and the shot was immediately returned by Allen, Spencer and Young, but no person was hurt on either side.  The horses took fright at the firing and the three men returned to the hut and Allen and Spencer went in, but Young levelled his piece across the back of a horse that was standing near the hut; he levelled at Fleming who was standing alongside Mr. Freer at the door of the hut and the ball passed close over their heads; Mr. Fleming and Freer fired at the same instant but missed and Young went into the hut.  Rose and the black woman who were both on horseback galloped to the back of the hut and remained about four hundred yards off until a slab was cut away at the back of the hut, and Rose and the woman got into the hut that way.  A man was then sent round to see that the people did not get away, but before he could get round Allen got on the black woman's horse and rode away.  Two men were then sent to intercept him but they missed him and returned without him as he got into a brush and they were afraid he might conceal himself behind a tree and fire at them before they saw him.  Two men were then sent to a flat in the neighbourhood across which Allen must pass to get away and there he was apprehended.   By this time some of Mr. Fitzgerald's men had come up and asked the prisoners if they would surrender, when Young came out of the hut and said that he supposed that the police had been sent for and when they arrived they would surrender but they would not be taken by settlers.  About four o'clock the policeman arrived and the prisoners then surrendered.  In the hut there was plenty of blankets and clothing and the following supply of arms, three double barrelled guns, two rifles, two fowling pieces, three brace horse pistols, one double barrelled rifle pistol, one sword, nine cannisters of gun powder, two shot belts, bullets, slugs, &c.  There were also eight horses, seven saddles, half a dozen horse shoes, hammers, pincers, shoeing knife, a tomehawk, leather, needles, &c.  All the fire arms were loaded except one small pistol.

Young and Spencer made no defence.  Allen said that Mr. Fleming was mistaken in his identity and that he was only going up to the hut when he was apprehended.

The Chief Justice told the Jury that in the eye of the law all the persons who are present and engaged in an unlawful act are equally guilty of any felony that may be committed in the pursuance of their common design although they may not be aware that it will be committed.  He invited the particular attention of the Jury to the case of the female prisoner, and if they had any doubts as to her participation in the offence to give her the benefit of it.  The Jury, acquitted the female prisoner and found the others guilty.

The Attorney General said that there were several other charges against the prisoners in the course of investigation and he wished that they should be remanded.  Remanded.


Dowling C.J., 17 August 1839

Source: Sydney Herald, 19 August 1839[2] 


Richard Young, Thomas Spencer, John Rose alias Henry Ellis, and William Allen convicted of shooting at, with intent to murder, were placed at the bar.  The Attorney General in praying judgement stated that those men had been in the bush a long time and committed many depredations, but he did not think that any of them were capital offences.  There were several charges of robbery in a dwelling house and putting in fear but no case of extreme violence.  The Chief Justice said that there were no circumstances of mitigation in the prisoners' cases; fortunately for them the Imperial Parliament had taken off the capital punishment for this crime or else it would have been his duty to pass sentence of death upon them and strongly recommend the Executive to carry the sentence into effect.  Had it not been for the meritorious conduct of the young gentleman who gave evidence against them and the spirited young men who assisted him, the prisoners might still have been at large committing their depredations.  In the place to which they were going they would have plenty of time to repent and he hoped they would do so, and perhaps after a series of years of good conduct they might be allowed to return back to a civilised part of the world.  The sentence of the Court was that the prisoners be transported to a penal settlement for the term of their natural lives.[3] 



[1]  See also Australian, 17 August 1839; Sydney Gazette, 22 August 1839.

[2]  See also Sydney Gazette, 22 August 1839; Australian, 20 August 1839.

[3]  The Australian, 20 August 1839 reported that the sentence was to Norfolk Island for life.

Published by the Division of Law, Macquarie University