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

R. v. Whitton

murder, bushrangers, Crookwell River

Supreme Court of New South Wales

Dowling C.J., 21 February 1840

Source: Sydney Herald, 26 February 1840[1]

Thomas Whitton, was indicted for the wilful murder of John Hawker, by shooting him at Oak Park, on the 19th January.  Other counts alleged the murder to have been committed by Bernard Reynolds, and some person unknown, and charged Whitton with being present, &c.

            The prisoner having no counsel, a learned gentleman, at the request of the Judge, undertook the defence.

            The Attorney General, stated the case.  He said that the prisoner was indicted for shooting a man named Hawker, and other counts charged him with assisting Reynolds and some unknown person, but it mattered little upon which count the Jury found him guilty, for they were all equally guilty in the eye of the law.  If a party of men go out to commit a felony, and one of them commits a murder, they are all equally guilty, and equally punishable.  The evidence in the case would be extremely short.  The prisoner with three other bushrangers, rode up to Oak Park in the morning, where twelve or thireteen men were reaping in the field, under the superintendance of Mr. Francis Oakes, and without any provocation fired at the men who were at work in the field; he believed their determination was to shoot Mr Oakes, but whether that was their intention, or merely to shed blood made no difference.  The bushrangers then dismounted, and recklesly fired several shots, from one of which Hawker received his death wound.  If a man shoots at one man, and hits another, he is as guilty of murder as if he shot the man he intended to murder.  The prisoner and his companions had been for some time pursuing their career with bushrangers, and wherever they went their steps were marked by blood, indeed, happily for the credit of human nature such reckless conduct was seldom exhibited.  Even here where bushrangers are by law looked upon as the common enemies of the land, and any man may shoot them if they will not surrender, the records of the court will not show such another case.  The prisoner at the bar was the last of the men of the party, indeed it seemed as if the vengeance of heaven had overtaken them sooner than it would have done by the course of law.  One of the party was shot when attacking a young gentleman named Fry, a gentleman, who by his bravery has shown himself an honor to the country from which he came, and a credit to the country in which he resides.  Another one was shot by the Mounted Police, and the third, Reynolds, who was taken with the prisoner, and had received warning of trial with him, put an end to his existence with an ingenuity which would have baffled every attempt to prevent it, by hanging himself with a blasket and silk handkerchief.  The prisoner was therefore the only remaining one of the gang, and the example which had thus been made of the whole gang would he hoped, be a warning to other men who may be inclined to become bushrangers.  The prisoner he was confident could not but observe the benign, the merciful law of England under which we live, and which showed much more mercy to the prisoner than he showed to the unfortunate victims, and if the prisoner's heart could be seen, he was confident that he would say he did not deserve the mercy that was shown him.

            The following witnesses were then called:-

            Mr. Francis Oakes - I live on the Crookwell River, in the country of King; the name of my place is Oak Park, about 180 miles from Sydney; on the 19th January, I was in the wheat field with thirteen men reaping; about four o'clock in the afternoon four armed men rode up; each had a horse; a man named Hawker, assigned to Mr. William Shelley, was in the field; when I saw the four horsemen riding down I knew them to be the bushrangers, and told the men to keep on reaping; two of them dismounted and commenced firing towards us; I ran; I saw Hawker, who was behind me, fall; I did not know he was shot, as most of the men fell in the wheat; I should say from twelve to fifteen rounds were fired, but so quickly that it was impossible to count them; I ran to Long's station about three miles off; I sent word to the Police Magistrate at Goulburn, who came out on Tuesday morning, bringing a policeman and a constable; when I returned I found my house burned to the ground; Hawker died the next morning about ten o'clock; the ball passed his back bone and lodged under the skin in front; I cannot swear the prisoner was there, for I only just saw the men and ran away; I went with Mr. Stewart in pursuit, and I fell in with them on the Lachlan River; I had parted from Mr. Stewart; Mr. McGuiness, Sergeant Freer, and two of the Mounted Police were with me; I was the first of the party; Whitton was about mounting his horse; there were three of them; they got behind trees, and we galloped up; in crossing a blind creek the two troopers fell from their horses and did not come up; the sergeant dismounted immediately and fired at Russel[sic], who fell, and immediately drew his pistol and blew his own brains out; McGuinness and I galloped to get before them as they were making for some rocks; when we got within thirty yards of them we dismounted; McGuinness was about thirty yards before them and I behind them; they then threw up their arms, and Sergeant Freer handcuffed the men who were Whitton and Reynolds; they had a horse with them which they took from my place; Reynolds had a coat of mine on; I asked them how they came to carry on so at our farm; Whitton said, Oakes, you may thank your good neighbours for it; I asked them how they came to fire on us in the fields, and Reynolds said they were tipsy and were sorry for it; they said the only thing they were ashamed to die for was what they had done at our place.

            Cross examined - I cannot identify the prisoner as one of the men.

            John Blackburn assigned to Mr. George Oakes - I was from forty or fifty yards form the other man, when the bushrangers come up, at first I thought they were the Policemen; the moment they come up they said something about bailing up, and at the moment a shot was fired; all the men ran except three more and myself, the bushrangers called to them to stand or they would shoot them; they fired a good many shots; I saw Hawker fall; I saw others fall; and thought they were shot; I saw Hawker turn around and face the men; I well knew he was shot; he died next morning about seven; I did not see the prisoner in the field to know him, but I saw him at the burning of the house; I saw them at dinner while the house was in flames; I saw four men eating.  I don't know how they set fire to the house; I never saw the prisoner before that day; he told me to tell Mr. Oakes - that he was one of the Bathurst mob, and that he would make him give up fire arms, he took from Marshall - Marshall was a bushranger from whom Mr. Oakes had taken fire arms; they spoke to the other men and said among other things they would burn down the barn; as they were speaking so friendly one of us said, burning down the barn would do them no good; they said they would not do it as it would hurt the country, but they would stop about the neighbourhood three or four days, until they shot Mr. Oakes; they said they would make the settlers submit so that if ever one man went with a stick they should not oppose him; they said the bloody tyrants meant to murder a single man, meaning Marshall; when they had done firing, before they went to the house they desired the men to sit down, or they would blow their brains out; I remained for a little time with the wounded man; I heard them say they would set fire to the wheat, and burn all who were in it dead or alive; I told the bushrangers that one of the men was wounded, and one of them a tall man said, why did you not poleaxe him and put him out of his misery; the prisoner said it was hard to see a man in such torture, it was better that he should be killed at once; they remained three or four hours; some held their arms in their hands, and the others laid them close by; they took away a horse with them.

            Cross-examined, I cannot exactly detect the prisoner's features as being at the field, but I have no doubt of it; I saw him at the burning; the prisoner told me his name was Whitton; the house is about three quarters of a mile from the field.

            Sergeant Robert Freer of the Mounted Police - I was present at the capture of the prisoner on the 24th January; I had been out three weeks with two troopers; we fell in with the bushrangers about seventy miles from Mr. Oakes's place, near the Lachlan River; as we approached Russell fired at me, I was checking the horse and he reared and caught the ball in his head; the horse whelled and I dismounted and Russel[sic] had his piece levelled at me but I got behind a tree and he fired either at Mr. Oakes or Mr. McGuinnis; as he fired he took a step back and exposed half his body and I fired and he fell; I loaded my gun, mounted my horse and proceeded after the other two; I fired at Reynolds and missed him; I was close to Whitton, who had just fired at Mr. Oakes, and I rushed up to him and told him to thrown down his arms; I picked up the pistol and marched Whitton to the place where Reynolds was standing in charge of Mr. McGidnis and Mr. Oakes and my two troopers; one of the troopers fell from his horse and the other broke his stirrup, and that prevented them from being up so soon as I was; we rolled Russell up and put him on a horse which he claimed; it belonged to Dr. Gibson, the other horses belonged to Mr. Oakes and Mr. Thorn; they had three double barrelled fowling pieces and five pistols; Whitton and Reynolds told me they had been to Mr. Oakes's on account of a man telling them of Mr. Oakes trying to capture a bushranger named Marshall; I did not know a man had been shot until they told me; they said they had intended to shoot Mr. Oakes and his brother.

            Cross-examined - When they were apprehended Mr. Oakes made no charge against Whitton.

            The prisoner in his defence merely remarked that Blackburn had perjured himself most rascally.

            The Judges recapitulated the whole of the evidence and said, that it mattered not whether the prisoner actually fired the shot or not; the only question for the jury was whether or not he was one of the party that rode up to the field at the time.

            The jury retired about three minutes and returned a verdict of - Guilty.

            The Attorney-General put on the file an information charging the prisoner with the wilful murder of John Kennedy Hume, but it was not his intention to prosecute it.  He had also several charges of robbery and other outrages against the prisoner.

            The Chief Justice said that the guilty course so long pursued by the prisoner was about to be brought to a final close.  For the last two years he had been abroad waging war against the laws of his country and plundering his fellow citizens, but the guilty game was about to be brought to a close, and he was to pay the forfeit by losing his life.  He had taken all the chances which the law of his country gave him, and had had the courage to face a Jury of his country.  He was not like the unhappy wretch, his comrade, who, although stained with blood, and steeped to the chins in crime, had not had the courage to face a Jury, but had added to his long catalogue of crime that of self murder.  It had been truly observed by the Attorney General, that to the honour of the guilty wretches who commit outrages as bushrangers, it seldom happens that blood marks their footsteps.  But here four Englishmen, on a Sabbath afternoon, without any provocation, attack thirteen or fourteen men, and fire at them, meditating no doubt to murder the young gentleman to whom the establishment belongs.  A more atrocious diabolical history of bloody crime he had never in his long experience heard.  The prisoner would have some advantages which his guilty companions had not - he would have some little time to prepare for leaving the world - the law thus shewing him, guilty as he was, more mercy than he had shewn to his unoffending fellow creatures.  He was about to leave this world, stigmatised by the law as a cruel blood-thirsty wretch, and he hoped that not the vengeance of the law, but the example that would be made by executing him near the scene of his crime, would have some effect upon the crowd of guilty wretches who he understood were out plundering about the country.  It only remained for him to pass the last sentence of the law upon him, which was, that he be executed at such time and place as His Excellency the Governor might direct.

Notes

[1]              See also Australian, 25 February 1840; Sydney Gazette, 27 February 1840.

Published by the Division of Law, Macquarie University