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

R. v. Martin [1840] NSWSupC 90

murder, bushrangers, Gammon, approvers, evidence of

Supreme Court of New South Wales

Dowling C.J., 7 November 1840

Source: Sydney Herald, 9 November 1840[1]

John Martin, late of Gammon, was indicted for the wilful murder of one John Johnston, at the Gammon on the 24th of March last; James Mason and John Walker were indicted for aiding and abetting; and James Howard and Robert Rawson were indicted as accessaries[sic] after the fact, by harbouring the prisoners after the felony had been committed.

            The Attorney-General commenced the proceedings by giving an outline of the case, and stated, that two of the prisoners were assigned to Mr. Blaxland, while the others were the assigned servants of Mr. Bettington; and called

            Mr. Henry Pelham Dutton, who deposed - I am a settler; in March last I lived on Gammon Plains; on the 24th of that month an attack was made on my house by some men, about half an hour after sundown; Mrs. Dillon and three of my children were in the bed room; I was going though the passage to the hall when I heard a loud crash, and was surprised to be met by two men with masks on.  One of them presented a gun at me and threatened to blow out my brains if I did not go to the upper end of the room; I asked them if they intended to use any unnecessary violence, and they said they did not; they then brought Mrs. Dutton and the children into the same room, with three female servants, and two children belonging to one of the females; shortly after two of my men servants were brought in; I saw four men at different times, all of them in smock frocks; they had masks on which covered the whole of their heads to the shoulders; one of them searched my pockets, but found nothing; about three quarters of an hour after they came, I heard two shots fired in the hall, on which the man who was standing over me, sprang out of the French window by which they had entered; soon after another of the men came from the hall evidently expecting to be attacked, and also passed out of the window; soon after this one of my servants named Burrows, came in with a gun in his hand, and told Mrs. Dutton not to be afraid as they were all there.  I was then shown the deceased, who was wounded on the right side of the head, which was bleeding very profusely; he died about three quarters of an hour afterwards.  One of them who stood over us appeared to be the shortest of the four; another of them appeared to be very active on his feet; they spoke frequently, and appeared to be Englishmen; they used a very threatening manner to me about my fire arms; I told them they were in possession of the house, and could satisfy themselves; my little son, five years old, told them how many guns and pistols I had in the possession of the carpenter, Johnstone, the deceased; the window was secured in a temporary way by a bolt, as it had been only paced there two days before; it could not be pushed open without violence; there were a great many panes of glass broken; I missed a good deal of my wearing apparel and a number of Mrs Dutton's trinkets.

            Martin asked the witness in what part of the house Johnstone was shot?  Witness - I should suppose it was in a little parlour from the marks of the blood; when I entered the room it was filled with the smoke of gunpowder; I could not see what took place in the hall.

            Thomas Giever deposed - I an Irishman from the Country of Mayo; I have been four years in the Colony named Christmas; I came in the "Bengal Merchant"; I came from Sheerness; I was a pedlar, and was tried at Newcastle, for stealing a watch; I was sent here from the assize for seven years; I have been punished four times; twice for losing sheep, once for leaving my station without a pass, and once for refusing to carry the rations fifteen miles; my punishments were fifty, one hundred, twenty-five and fifty lashes; I was assigned to Mr. Bettington three weeks after I arrived; I was last at Boggybrine, a station about three miles from Mr. Dutton's, and eight miles from the head station; Mason and I took the bush on the 9th March, and got over the Liverpool-range; Walker and Howard were at the same station; Mason Green and I did not one robbery while Mason Green and Dailly did another; Green was assigned to Mr. Blaxland, and Dailly to Mr. Bettington; James Martin, James Mason, and James Walker, and I, did the robbery at Mr. Dutton's on the 24th March; we were then stopping with Howard, and did not determine on whether we would rob Mr. Dutton, or Dr. Macartney, until Walker joined us on the Spring Creek; when Mason and Walker joined us we determined to go to Mr. Dutton's, and set out about an hour and a half before sun down; the only arms that we had were a cut down musket and a fowling piece, and all the ammunition we had was what was in the guns; we had all masks on, made of cloth, two of which were made of new print, and the other two were made of an old shirt with holes cut in them to see through; when we went to Mr. Dutton's; we stood for a little to see that all was quiet, after which Martin burst in the door, and I followed him; Mr. Dutton then came in, and Martin seized him, and told me to put him up in the corner of the room and to shoot him if he moved.  I had the cut down musket, Walker had to the gun, and the remaining two had sticks which they had cut before we went into the house; the others then went and brought Mrs. Dutton and the children, and the female servants; after about half an hour I saw one of Mr. Dutton's servants enter the room with a pistol in each hand, and told Walker to stand, on which he rose the fowling piece, and told him to stand, when the man fired and wounded Walker on the breast, on which Martin seized the pistol out of the servant's hand and shot him in the head.  I immediately ran out and made for Martin's station, and found him there with Green and Henry Beaverson; Martin told me that he had left Walker at his own station, and about half an hour after Martin overhauled the plunder; there were a good number of things three or four sovereigns and some orders, two pair of Wellington boots, a number of gold rings, and ink stand, a cruet stand, and several other things; Martin had charge of the things; he told me and Mason that the best thing we could do, was to leave the station for some days; we then went to several stations, but only stopped for refreshment.  One of the stations, I have heard, belonged to Mr. Jones; we returned to Martin's about ten days after, and found he had moved to another.  We went to him, and he told us he would get us some money and passes, so that we might pass for immigrants; Martin and Beaverson drew us our rations regularly.  Beaverson is dead; I struck him with a tomahawk, which he had struck me with.  On the Wednesday morning they brought us beef and milk, he poured out the milk, and it was so bitter I could not drink it; Martin and Mason tasted it, and sent Beaverson for more milk; he was away about twenty minutes, and when he returned he took the tomahawk in his hand, saying he would go and look for an oppossum, and just as I was going to eat I received a severe blow on the back of the head which stunned me; I got two other strokes on the front of the head, the skin on the back of my head and part of the flesh were hanging down; I ran five or six yards and fell hurting my shin; I got up and ran again, when Beaverson pursued me about half a mile with the tomahawk; I cast off my jacket and waistcoat and ran till I got to the road between Bow Plains and Cockabill, when I fell down in consequence of loss of blood; I lost the use of my limbs, on which Martin seized me and Beaverson came up, and was going to strike me again, but Martin would not allow him, as it was too near the road; they then took hold of my arms and led me back; I begged hard for my life, particularly of Martin, but he told me it was no use, and said he wanted none of my preaching; he said, when I was apprehended in a day or two, I would tell of his shooting Mr. Dutton's man, and they could not spare me; I then asked him to shoot me, but he refused to do that as the report would make an alarm; I then asked him to give me the laudanum bottle I knew him to have, and I would drink it sooner than be again struck by the tomahawk; Beaverson then went and got the two quart kettle, and the laudanum bottle, and poured in about an inch and a half into the lid of the kettle; I was not willing to drink it but they told me if I refused they would be worse to me; I then drank about half a glass full of the laudanum at two gulps, and they took me and set me under a large tree, and sat down about a quarter of an hour with me, and seeing that I was not going to sleep, they then gave me the rest of it, and about a quarter of an hour after they made a bed for me with an opossum cloak, and told me I must lie down; I refused; they told me I must do so, as the more I refused the worse punishment they would put me to; I laid down, and Martin said he would go and look after Beverson's sheep and he went away; about ten minutes after I said to Beverson I would sleep better if I had my boots off, when taking them off I sprang to the tomahawk and seized it; he sprang at me I got it, and he and me had a wrestle, we fell when I got clear and struck him two blows on the temple with the tomahawk, which knocked him down; I then made my way to one of Mr. Lesslie's stations, about seven miles off; after I had gone off I saw him rise and lean against a box sapling; when making my way to Mr. Lesslie's I threw up the laudenum in froth; when I got there I drank tea and water and throw it off my stomach, I was then sent to the head station; Martin told me he intended to kill me because I had seen him shoot Mr. Dutton's man; Mason was sitting beside me when I was first struck, Martin told me that Walker had been wounded in the breast; I gave information to the constables, and on the Saturday, while I and the constables were looking for Mason, we saw the body of Beaverson about a quarter of a miles from where I struck him.  I afterwards showed Mr. Sayers of the Mounted Police where I had been struck by Beaverson and Mr Sayers by the help of Green, recovered part of the stolen property.  I have not seen Walker till then, till I saw him in Sydney; Howard was at the same station with me; Rawson was assigned to Mr. Bettington; Mason went for Walker on the night of the robbery.

            Cross examined by Martin:- You supplied us with fire-arms on the day of Mr. Dutton's robbery, you lent us the arms before, when we went to rob one of Mr, Jones' station, you also lent us the arms when we robbed Mrs. Howards, and also when we robbed Mr. Wentworths station, there was no water in the laudanum when I took the first dose; I swear that I saw you shoot and murder Mr. Dutton's man: I swear that I saw you on the night after the robbery, I never told any one that Dailly supelied[sic] me with the fire arms.

            Joseph Brenan wbs[sic] objected to by Martin, as having been in court during the examination of the last witness.  Brenan denied on oath that he had been in court, and deposed that he was overseer to Mr. Dutton, and on the night of the robbery was about half a mile off, when being told of rhe[sic] attack, I, the deceased and two other of Mr. Dutton's servants, got armed and made arrangements for taking bush rangers, when the deceased left the party and got in before the others, and I heard two shots fired; I ran up and saw a man making off; he called out shoot the b-r, I fired at him, when he dropped a bundle, which we found contained some property belonging to Mr. Dutton, and was covered with blood: I only saw two of the bushrangers, we recovered the pistols principally through voluntary information given by Walker; when we went into the house we found the family all in confusion, and the deceased was walking about deranged with his brains hanging out; he died about three quarters of an hour afterwards; after Walker mentioned the pistol I sked[sic] him where it was, and he told me it was forgotten by Roper alias Martin, where Mr. Dutton's black boy found it; the pistols were loaded with gunpowder and duck shot; after the bushrangers went away, we found two strange hats in the parlour, one of which is that produced in court; Johnson only called for his master and wanted to speak to him; I saw the shot extracted from Johnstone's head, it was similar to that with which the pistol was loaded.

            Cross examined by Martin. - I do not know [i]n what room of the house Johnstone was shot.

            Lieutent[sic] Sayers of the 80th Regiment[t] who had command of the mounted-police in the district of Gammon at the time of the robbery; got information of the murder and robbery about the 27th of the month, and immediately turned out his party, when they kept beating about for information.  Wheu[sic[ the approver Gievers gave information that induced him to take the party into custody, and found that the statement of Gievers was corroborated by the loculiity[sic] of the place where Reverson had been murdered; on searching he found tracks of the Opposum cloak having spread on it and a piece of damper and crumbs of bread, as if some person had been eating there.  The marks of the cloak were by the grass having, been beaten down the reason Lieutenant Sayers went so particularly about the information given by Grieves was that it was of such an extraordinary character that they could scarcely believe.  Approver then took the party to a new made grave, about half a mile off, where there was a large pool of blood, and where Beaverson was buried.  Sayers was surprised on looking at the distance between the Curryjong tree where the scuffle took place between Gievers and Beaverson, and was of opinion that the latter had not met his death under the tree.  He found traces under the tree of a scuffle having taken place between white men; the traces consisted of marks of the feet of white men; afterwards took Howard and Rawson into custody for harbouring and for being accessories after the fact, when they admitted having taken care of Walker's sheep on the night of the robbery and murder at Mr. Dutton's; on the whole Mr. Sayers corroborated the statement made by Gievers; he also proved the finding of the cut musket and the fowling piece in such a way as to commit the prisoners with the circumstances, they being found concealed in the vicinity of the stations where the prisoners were assigned; he also subsequently discovered that the fowling piece nad[sic] been stolen from Mr. Jones' station some time previous to Mr. Dutton's robbery.  It was also proved by Mr. Sayers that on the day after the robbery Martin was seen with a white shirt on.

            In cross-examination by Martin, Mr. Sayers stated that the approved informed him that he was sure that he (Martin) had put aside one of the prisoners Masons, and also that when the deposition was made by the approver, he stated that Martin gave him the first draught of laudenum, and mixed it with water, and before giving him the second draught said d-m him he has got as much laudenum as would have killed a hyrse[sic], and it has not put him asleep yet.

            Mr. Arthur Blaxland, a Magistrate of the Territory, proved Walker's making a voluntary confession, after being in custody at the Gammon lock-up; after his wound had been examined and dressed by Dr. McCarty, he told Walker that it was a bad case for him, but if he would confess all, the Magtstrates[sic] would consider his case.  The prisoner then paused for some time and then made the confession.  The prisoner Walker after being told that he was one of the parties at the robbery, and that it would be better to confess, said to the Magistrates, yes I was one of them, and I know I shall be hanged for it.

            Dr. McCarthy proved that the wounds on Walker's brest and arms were gun-shot wounds, with shot such as the pistol had been charged with when Johnstone fired it.

            James Martin, in defence, stated that the case had been made up between Green and Gievers, to save themselves as had not been in any way connected with the robbery; the other three prisoners stated that they had nothing to say, and Rawson denied that he had any knowledge of the robbery and the murder until he was told of it when he was getting rations.  Martin stated that he had subpaened[sic] his overseer, at the time of the murder, in order to prove that at the time of the murder, he had a sore foot, and that it was impossible for him to travel nine or ten miles to do the robbery; he also stated that as the approvers Green and Gievers had been in custody six or seven months, they had plenty of time in order to get the story concocted; he also insinuated that the acconnt[sic] given before the Court, had varied materially from that given by the witnesses before the Magistrates.  The depositions were then read at the request of Martin.  From that of Green appeared that Martin had been in the bush with Oppossum Jack, whom it was generally supposed Martin had put aside as the knife, tinder-box, and pistols of Oppossum Jack, had been seen in the possession of Martin, and since then, Oppossum Jack had never been seen since he was also accused by several of the Government men of the neighbourhood, of having killed Oppossum Jack on which he, being then in liquor, fell a crying.

            The Chief Justice, in putting the case to the jury stated, that the case was one of considerable importance, not only from the interest which this case had excited out of doors, on account of the place in which the murder and robbery had been committed, as being in a lonesome part of the Colony, where there was but slight means of protecting the lives of the inhabitants, but also, because it involved the lives of three of the prisoners.  He also adverted to the law of the case, as respects those present when the murder was committed; and also adverted to the necessity that exists for admitting approvers the whole of whose evidence it was not necessary to corroborate, but merely to see that the gaps and chasms in it were filled up, and that the whole body of the evidence was consistent in all its parts, and called the attention of the jury to the cross-examination of Mr. Dutton, in which the prisoner Martin showed such a knowledge of the circumstances that had occurred at the house of Mr. Dutton, as could only have been obtained by his being present at the murder; he also pointed out to the jury the close corroboration which Giever's testimony had received from Mr. Sayers, Mr. Dutton, and several other unimpeached witnesses; and stated that the jury were first to make up their minds respecting Martin, Mason, and Walker, and if they were guilty, then they were to enquire whether Howard and Rawson had been guilty of harbouring and abetting them; at the same time he considered the evidence against the latter as of a slight description.  After the summing up the prisoner Martin said, the way in which he had come to the knowledge of the bushrangers having threatened the life of Mr. Chiesly, by saying at Dutton's that they would have his life and would swim in his blood, was, that he heard the prisoner Walker tell it to the Magistrates; that was also the way in which he became acquainted with the fact that coarse language had been used by the bushrangers.  The Jury retired for about ten minutes, and returned a verdict of guilty of wilful murder against Martin, Mason, and Walker, and a verdict of not guilty against Rawson and Howard.

            The Jury, before returning their verdict, wished to be informed what Mr. Dutton had to say in favour of the prisoner Walker; when Mr. Dutton said, that Walker had shown great civility to Mrs. Dutton, the children, and the females not having ill-used them in any way, and when he bailed them up he behaved with becoming respect to them.

            His Honor said, it could not affect the prisoner's guilt.

            Proclamation being made, his Honor in a feeling and impressive address commented on the mass of crime which the trial had brought into view as connected with Martin, which he regarded as being unparalelled[sic] in the history of the colony, as there was good reason for believing that he had frequently inbrued his hands in the blood of his fellow creatures.  From the details given on this trial there were strong reasons for believing that his old confederate, Oppossum Jack, who had been the scourge and terror of the Colony, had been destroyed by him.  It was also clearly proved that he had shot the deceased man, Johnstone, while his attempts to deprive his accomplice Gievers of life was such as to strike terror to the heart of every one who heard the details given by that individual.  His Honor also stated that the blood of Mason and Walker, the youths who stood with him at the bar, was also chargeable on his head; and after having admonished each of them to prepare for a future state, he passed sentence of death on all of them in the usual form.  The prisoners heard their awful sentence unmoved, and appeared unaffected by what had been said to them.

Dowling C.J., Stephen, Willis JJ., 16 November 1840

Source: Sydney Herald, 17 November 1840

John Howard and Robert Rawsdon; who had been tried and acquitted as accessories after the fact, in a case of murder, were ordered to be returned to Hyde Park Barracks, and not to be assigned in the quarter of the colony where the murder had been committed.


[1]              See also Australian, 10 November 1840.

Published by the Division of Law, Macquarie University