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

R. v. Kirk [1840] NSWSupC 15

attempted murder, bushrangers, Gunning, jury, address to

Supreme Court of New South Wales

Willis J., 1 May 1840

Source: Sydney Herald, 6 May 1840[1]

            Frederick Kirk was indicted for shooting at William Grovenor, on the 15th January last, at Gunning, with intent to murder him; and William Clark was indicted as an accessory, aiding and abetting in the offence.  It appeared the prisoners had at one time been connected with the notorious Whitton.[2]  While robbing the house of Dr. Clayton, on the day laid in the indictment, they heard that the prosecutor had declared that if the bushrangers ventured to attack his place he would capture them.  They also learned that Mr. Grovenor had fire arms; and therefore, to see if he was game enough to face them, and also to procure the arms, they declared they would pay him a visit.  The prosecutor, who is a storekeeper at Gunning, deposed that the prisoners came to his place about 3 o'clock, P.M., about the middle of January last; Clark asked for a half-dozen shirts, they were handed down, and when he turned round from doing so, the prisoner Clark clapt a pistol to his head and told me not to speak.  Kirk then came armed with a short gun, and threatened to blow his brains to ribbons if resistance was offered.  The family were then forced into an inner room, where they were bailed up; three blacks came in, who were served in the same manner; and a brickmaker and bricklayer were brought in and bailed up also.  All the parties were bailed up by Clark.  Powder and arms being for sale, they demanded them.  Having been threatened with a visit from the bushrangers, some arms had been loaded to receive them.  Mr. Grovenor reached the prisoners down the unloaded pistols, and Kirk loaded eight or ten pistols and guns.  When Mr. G. made an attempt to approach the loaded arms on the counter, Clark told him not to do that again or he would blow his brains out, and giving him a hard look, asked if his name was not Grovenor? saying "are you not the b___r that threatened to take the two of us?"  to which he replied "you must not believe all you hear."  Thinking he was about to be shot, Mr. G. said "it would be a cowardly act to shoot an unarmed man."  At this instant Mr. Manning and another gentleman rode up to the door; Clark tried to cover them with his gun.  Kirk was in an adjoining room; both could see Mr. Manning.  Clark said, "wait a bit, I'll drop him if he comes bye."  Clark went out and returned apparently terrified; taking advantage of his apparent confusion, Mr. Grovenor ran out and met a man with a gun, which he said was loaded with buck shot; he asked him for a ball, but he had none; being rendered desperate on account of his family being in the power of the bushrangers, Mr. G. rammed his penknife into the gun, returned and challenged them to come out, but they would not.  Clark presented his double-barrelled gun at Mr. G. from behind the shutter, when he withdrew a small distance.  Clark and Mr. Grovenor exchanged shots but without effect; the ball passed very near Mr. G.'s face, when he ordered Clark to surrender, but he would not saying he never was born to be hanged.  Mr. Manning having returned with assistance from Mr. Hume's, and fearing if a rush were made into the house that some one or more would be shot, it was arranged for a party to get up to the roof and remove the brick work there.  A man named Cooper went up with a pistol, but as soon as he had reached the joists he was fired at by Clark.  The shot struck the cannister of gunpowder out of his hand while in the act of priming his pistol.  Mr. Grovenor then went up when Clark fired and shot him through the hat; the ball struck the joist and splintered it so that he was struck on the forehead and stunned; the ball just grazed his forehead; the firing lasted for about two hours, and seventeen or eighteen shots were exchanged between Clark and Mr. Grovenor.  Kirk was employed loading for Clark.  At last one of Mr. G.'s shots lodged in the wall close by the side of Clark's head, and a splinter wounding Mr. G.'s sister-in-law in the neck on which they immediately said they would surrender.  The party then entered, secured the prisoners, and conveyed them to Yass.  His Honor highly praised the courageous conduct of Mr. Grovenor.

            John Toft, assigned to Dr. Clayton, deposed, that on the morning of their capture, the two prisoners robbed Dr. Clayton's house and left that for the prosecutor's, declaring their intentions to be as already stated.  After they left his masters premises he got armed went to the Grovenor's, and assisted at the capture of the prisoners.  Mr. Manning, junior, and the driver of the Yass mail, also corroborated the prosecutor's evidence.  Guilty - To be transported for Life.

Willis J., 1 May 1840

Source: Australian, 2 May 1840

            Frederick Kirk was indicted for shooting at William Grovenor at Gunning, on the 15th January last, with loaded fire arms, with intent to murder him; and William Clark was charged with being present aiding and assisting the first named prisoner to commit the said felony.

            The prisoners were a part of the gang associated with Whitton, the bushranger lately executed for murder, and attacked the house of the prosecutor, chiefly, as it appeared, for the purpose of obtaining fire-arms, and also for sake of bravado, in consequence of having heard, while committing a robbery on the same day at Dr. Clayton's in the same neighbourhood, that Mr. Grovenor would take the same robbers, if they attempted to rob his place. Upon hearing this, they threatened to pay his place a visit, and see if he was as game as he pretended to be.

The following evidence was then called:-  William Grovenor being sworn, said, I reside at Bunning, and am storekeeper; both the prisoners came to my place about three o'clock in the day, about a month after Christmas last; I am sure they are the men; Clark came in and asked for half a dozen shirts; I handed down the shirts, and when I turned round from doing so, Clark held a pistol to my head, and told me not to speak; while I stood, Kirk came in with a short gun, and said he would blow me to ribbons if I made any resistance; Clark then drove my family into an inner room, and baled them up; three black natives then came in, and he baled them up also; he then went out, and brought in my bricklayer and brickmaker, and baled them up in another room; they both asked me for my arms; I sell arms and gunpowder; I have no license to do so, nor is any required; I had arms loaded in the house, expecting a visit from the bushrangers, as I had been threatened with it; I reached the prisoners down the pistols, and Kirk loaded eight or ten pistols and guns, some with his own ammunition, and some with my gunpowder, a flask of which they took off the shelf; I was attempting to approach the loaded arms on the counter, when Clark told me not to attempt it again, or he would blow my brains out; he looked at me very hard, and said, "is not your name Grovenor? - are you not the b____r that threatened to take two of us?" I said "you must not believe all you hear;" I thought he was going to shoot me, and I said "it would be a cowardly act to shoot a man unarmed;" at this moment, Mr. Manning and another gentleman rode up to the door; Clark tried to cover them with his gun; Kirk was in the next room, and both could see Mr. Manning; Clark said to Kirk, "wait a bit, I'll drop him if he comes by;" Clark went out and returned in, seemingly terrified; I took advantage of the moment, and ran out; I met a man with a gun, who told me it was loaded with duck shot; I asked him for ball, but he had none; I was desperate, in consequence of my family being in the house, so I rammed my penknife into the gun, and then challenged them to come out; they would not do so, but Clark presented my double barrelled gun at me, from behind the shutter; I went a little distance off, and Clark and me exchanged shots, both without effect, but I felt the passage of the ball near my face; I called upon Clark to surrender, but he said he would not - that he never was born to be hanged; Manning went to Mr. Hume's, about two miles off, and brought me some assistance; I would not allow any one to rush into the house, knowing that it would most probably be fatal to any one who should make the attempt; Clark fired several times both at me and the parties who came to my assistance; I told one of my servants to remove the brick work at the end of my house, and a man named Cooper went up the ladder which I caused to be raised, with a pistol in his hand, and just as he had reached the joists of the house, Clark fired, and shot the canister of gunpowder, with which he was priming his pistol, out of his hand; I then went up the ladder, and Clark shot me through the hat, the splinters from the joists, with which the ball came in contact, stunning me in the forehead; about seventeen or eighteen shots were exchanged between me and Clark, and the firing lasted at intervals for about four hours; Kirk was engaged loading the fire-arms for Clark; at last I got a fair shot at Clark right in front of him; the charge in my gun was a very heavy one, and it lodged in the wall close by the side of Clark's head, knocking the plaster about his ears, and a splinter wounding my sister-in-law in the neck; the men then called out that they would surrender; I told them to let me hear one of the females in the house say so, upon which my sister-in-law called out to me, saying, that they had surrendered. I then went into the house, and with the assistance of the parties, who were with me, secured the prisoners, and sent them into Yass.

Mr. Grovenor was complimented by His Honor on his courageous conduct.

John Toft, an assigned servant of Dr Clayton's, stated that he was present on the same morning of the outrage by the prisoners at Grovenor's, when they committed a robbery at Dr. Clayton's, and that they left the latter place, saying that they would go to Grovenor's and see whether he was as game as he pretended to be; he afterwards followed in the same direction armed with a gun, and assisted Grovenor in the capture of the prisoners. Mr. Manning, and Richard Robertson driver of the Yass mail, also proved that they passed by Grovenor's during the outrage, and that they witnessed the firing. Mr. Manning as he turned the angle of Grovenor's house was shot at by Clark, but did not receive and injury.

The prisoners made no defence.

His Honor, previous to summing up the evidence, addressed the jury as follows:

Gentlemen of the Jury. - Nothing is more common than to hear those who are in a great measure ignorant of the criminal law of England, charge it with numberless hardships and undistinguished rigour; whereas, all who have studied it minutely, agree that it wants nothing to make it admired for clemency and equity, as well as justice, but to be understood. It is so agreeable to reason, that even those who suffer by it cannot charge it with injustice; so adapted to the common good as to permit no vice to go unpunished which that requires to be restrained; and yet so tender of the infirmities of human nature, as never to refuse an indulgence where the safety of the public will bear it. It gives the sovereign no power but of doing good, and restrains the people from no liberty but of doing evil. The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degree of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual of the state. No rank or elevation in life - no uprightness of heart - no prudence or circumspection of conduct, should tempt a man to conclude that he may not at some time or other be deeply interested in these researchers. The infirmities of the best amongst us - the vices and ungovernable passions of others - the instability of all human affairs - and the numberless unforseen events which the compass of a day may bring forth, will teach us upon a moment's reflection that to know with precision what the laws of our Country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern. The Criminal Law of England has been supposed to be more nearly advanced to perfection than that of any other country. Crimes are accurately defined, - penalties (so far as they reasonably can be) are fixed and certain - all accusations are public, and trials are in the face of the world - torture is unknown, and every real or supposed delinquent is judged by such of his equals against whom he can form no exception, nor even personal dislike. The object of this law is the protection of our persons and property by the prevention of crime. Hence the principle, (which pervades the whole system of penal jurisprudence) that the facility with which any species of crime is perpetrated, is deemed by the legislature a reason for aggravating the punishment. Great Cities (as all must know who dwell in this place) multiply crimes by presenting easier opportunities, and more incentives to libertinism, which in low life is commonly the introductory stage to other enormities, by collecting thieves and robbers into the same neighbourhood, which enables them to form communications and considerations that increase their art and courage, as well as strength and wickedness; but principally by the refuge they afford to villainy, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. In such places a vigilant magistracy, an accurate police, a proper distribution of force and intelligence, together with due rewards for the discovery and apprehension of malefactors, and promptitude in carrying the laws into execution, seem to be peculiarly requisite. Wherefore, in England, corporations were established, and invested with all requisite powers and jurisdiction for the good government and the preservation of peace in such communities.

Of these institutions, which first were constructed on the Continent of Europe, the Historian of the Emperor Charles V., says, "Forming cities into communities, corporations, or bodies politic, and granting them the privilege of Municipal Jurisdiction, contributed more, perhaps, than any other cause, to introduce regular government, police and arts, and to diffuse them over Europe." Let me then congratulate you, gentlemen, on the immediate prospect (according to the announcement in the public papers) of the incorporation of this great and flourishing town; and on the hope, in which I trust we may fairly indulge, that the recent Acts or the Imperial Parliament which place the English Municipal Corporations on their present board and popular basis, and secure to them the requisite the jurisdiction for the prevention and punishment of crime, may be adopted in their fullest extent by our Local Legislature. In that event, within the limits of this town at least, criminal justice never need be dormant - a criminal court, empowered to punish nearly every species of offence, may almost constantly be open, and thus may the corrupting influence of incarceration be abridged, examples become immediate, and the terror of punishment increased - following as it would do, closely as the shadow of crime. Let us now proceed to the business we have in hand. To you, gentlemen, with such assistance as I can render you, it belongs to ascertain and to declare by your verdict, the breaches of the law which may have been committed in those cases that may be brought before us. To me it appertains to pronounce the punishment which the law inflicts upon them. Thus, gentlemen, in the discharge of our respective duties, shall we help to secure to our fellow subjects the benefit of those admirable laws which constitute the criminal code - a code made for securing the safety and ensuring the tranquillity of the community.

His Honor then recapitulated the evidence and charged the Jury, who without hesitation returned a verdict of Guilty against both the prisoners. The prisoners were remanded for sentence.

Notes

[1]              See also Sydney Gazette, 5 May 1840.

[2]              See R. v. Whitton, 1840.

Published by the Division of Law, Macquarie University