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

R. v. Shea [1841] NSWSupC 7

murder - St Alban's - bushranging - capital punishment

Supreme Court of New South Wales

Dowling C.J., February 1841

Source: Sydney Herald, 25 February 1841[1]

SUPREME COURT, - CRIMINAL SIDE.

Before the Chief Justice and the following Jury:- Robert Ball, ----- Brown, John Burnes, William Barker, James Bridge, Robert Best, J. N. Browne, Charles Blakefield, John Beeson, J. Byrnes, Thomas Bray, and S.A. Bryant.

John Shea, convict per Calcutta, was indicted for the wilful murder of John Graham, by shooting him at St. Alban's, on the 21st December; and John Marshall, convict per Clyde, James Everitt, convict per Mangles, Edward Davies, otherwiseWilkinson, convict per Camden, Robert Chetty, convict per Sophia, and Richard Glanville convict per Lord Lyndoch, were indicted for being present, aiding, abetting, and assisting in the commission of the murder. A second count stated the murder to have been committed by some person unknown, and charged all the prisoners as accessaries.

The Attorney-General stated the case. He said that the whole of the prisoners at the bar stood charged with the wilful murder of a young gentleman named Graham. All of the prisoners were convicts assigned to different individuals. Shea was assigned to Mr. Pilcher, Everett was assigned to Mrs. Muir, Marshall was assigned to Mr. Elliott, Davies was assigned to Mr. Sparke, Chetty was assigned to Mr. Chapman, and Glanville was assigned to Mrs. Hely. All the prisoners therefore came out to the Colony to be punished for their crimes, and had had extended to them the indulgence of being assigned to individuals, who, by the Government regulations were bound to treat them with a leniency and kindness unknown to the law except in modern times, a leniency and kindness which they had no right to expect. Upon this however the prisoners appeared to have set no value, but showed themselves to be incorrigibly bad, for they had combined together to keep the whole country from the sea coast to Liverpool Plains, in a state of terror and confusion, and excite a degree of fear in the breasts of all Her Majesty's subjects residing in that part of the country. It would be necessary to trace a part of the prisoner's career. He found them at Brisbane Water where they were joined by Glanville who was in Mrs. Hely's service, and what took place there shows that persons of this description could not go through the country unless they were harboured by the assigned servants in the different districts, and others who are regardless of the peace of the country or hope to make a profit by the plundering carried on. Glanville was in a comfortable place; more so than a man in his position had a right to expect, but he took, what in this country has always been considered the first step to the gallows (and in this case he had no doubt Glanville would find it a truism,) he took the bush, and joined the other desperate men. After scouring the country with an audacity that had never been equalled, decorating themselves with ribbons, and when one set of horses was tired, taking another, they, at length arrived at Scone. On Sunday, December 20th the prisoners were all seen together not far from Scone, prosecuting their desperate designs. On the morning of the 21st they entered the town of Scone, or rather the village, for there are very few houses in it: they were all well mounted, and Glanville rode into Mr. Dangar's store yard, with some of the party, and other went to Chivers' public house, which is only separated from the store by a road: the party thus separating, some to rob one house and some the other: they were however still all within call, and within reach of each other, so as to give assistance should there be any resistance likely to frustrate their designs. The person the prisoners were charged with murdering was Mr. Dangar's storekeeper, and was following his occupation when the party came in. The report of the party being out had previously reached there, and from their dress and fromMarshall being decorated with ribbands, they at once suspected who they were. Graham took up a pistol, the first thing that came to hand; it was not certain whether he fired it, but whether he did or not made no difference, for when a party of men leave their service, and go out on an expedition of this kind they are beyond the pale of the law, so far as this, that every man is armed with authority to apprehend a bushranger, and to do so has all the authority of an officer of justice. Mr. Graham immediately directed this steps to the lock-up, which was not far distant, it being natural that he should alarm the Police, when, as he was rounding a corner, not far from Mr. Dangar's house, more than one shot was fired at him, but only one hit him near the spine, when he fell down and almost instantly expired. While this was going on the party were robbing Chivers's and Danagar's; the shots were heard and Marshall came in and said the fellow was settled; some one asked if he was dead, and Marshall replied, yes, he's all right. Mr. Dangar's son was in the store at the time, and it would appear that they had mistaken Graham for him, for one of them inquired whether it was not Mr. Dangar's son that was shot, and upon being told that he was not, Marshall said, "Well, he fired a shot at us, and we fired one at him." The jury would of course take the law upon the matter from the Judge, and they would find it was what common sense would point out that it ought to be. When a number of men go out with the intention of committing a felony, and are armed to the teeth with swords, guns, and pistols, what do they take them for but to use them if they are thwarted in their designs; to take life if it be necessary to resort to their arms in prosecution of their designs. Up to the 21st of December it would appear that no resistance had been offered to the prisoners; they had escaped with impunity, but that only made them more reckless and daring. He would state briefly the proofs of the prisoners' guilt, which he intended to submit to the jury. The prisoners were all together on the evening of the 20th of December before they entered Scone. He would show that seven men rode into Scone, and that some of them went to Dangar's and some to Chiver's, and all the prisoners would be identified except Shea; but immediately afterwards, on the same day, Shea would be identified as committing various robberies with the party, on their way to Page's River, near where their career ended. Mr. Edward Denney Day, formerly the Police Magistrate of the district, but then Police Magistrate of Maitland, acted on the occasion with activity, zeal, and intrepidity, which will reflect honor on him to the longest day that he lives. Mr. Day, hearing that the party were within a day's ride of him, although he was not in his own district, and it was not strictly his duty to do so, was so zealous that he stepped forward and collected a number of ticket-of-leave and free men together, where assistance was readily given, and went in pursuit. They arrived at Scone shortly after the murder was committed, and hearing of that dreadful circumstance only added to their zeal and more recruits were added to the party. They followed the bushrangers very closely, tracing them by the robberies they committed, until at length they came up with them, when a fire was discharged by all the prisoners, but fortunately with no fatal effects. The prisoners afterwards boasted that they fired fourteen shots at the gallant band. Davis, who was a sort of leader fired two deliberate shots at Mr. Day, whom he knew to be the key-stone of the whole party, but Providence so ordered it, that Mr. Day's life was saved, and Mr. Day's fire wounded Davis. This shows the desperate characters of the pursuers, and puts beyond all praise the courage of the party, to whom the country and society are indebted for the capture of the party, and doubtless for sparing many lives. When the bushrangers' ammunition was exhausted, they were taken with the exception of two, one of whom was captured next day, and the other, if not apprehended before this, he had no doubt will shortly be taken. The indictment in the first place charged Shea with having fired the shot, Shea having told Mr. Day that he did so; he took upon himself the credit of taking the life of this young gentleman, and although others also wished to the have the credit of having sent a fellow creature suddenly out of the world with all his sins upon his head, Shea persisted in stating that he was the man. The second count charged some person to the Attorney-General unknown with having fired the shot, but it mattered not in the eye of the law who did so, for all the aiders and abettors are equally guilty. All persons who go out with a common design to commit an unlawful act, are equally guilty of whatever is done in the prosecution of their common design. When the party rode away after committing the murder, the seventh man who had been watching, joined them, and as he had been keeping guard all the time it shewed the connexion between the parties. It was unnecessary for him to say more upon the law of the case, that they would learn from His Honour, but they would find that no matter what part they took in the transaction all were equally guilty. The result of the case he hoped would be a further proof that the first step to the gallows is for a convict to become a bushranger and that however long he may escape with impunity, the law is strong enough and is sure eventually to overtake and punish him.

Mr. E. D. Day deposed, I am Police Magistrate of Maitland; shortly before then I was Police Magistrate of Muswellbrook; on the 21st December I was at the latter place on my private business, I do not think there was any Police Magistrate then in Muswellbrook; it was about nine in the evening of the 20th I received the information, and collected a party of ten mounted men, and set out in the direction of Scone, at seven A.M. of the following morning, and as we went along the road, we heard of their robberies; we came up with them at Do boy Hollow, about thirty miles from Scone, and found them about half a mile off the road; we saw some drays, a fire, also some horses teathered and a number of men in their shirt sleeves, making a rush to the opposite side of the Hollow; we galloped in among them, and after a good deal of firing we took five of them; Davis is one; I say him fire, he rushed up the opposite side of the gully in order to cover himself from our fire; I fired and he returned it at me after he got under cover of the tree, he fired again at me, resting the gun on the fork of the tree 20 yards from me. (Mr. Purefoy submitted that this was not evidence of the charge in the indictment. The objection was over ruled,) five of them were taken in five minutes after we came on them; they had ten muskets and a great many pistols; all were taken but Glanville, who was taken next morning; I held out no inducements to them to confess; they were very communicative and kept us awake all night; Davis and Marshall gave me a history of their proceedings, voluntarily, after I had taken down their names. (Mr. Purefoy submitted that what the prisoners said could not be evidence against them unless they were previously cautioned; the objection was overruled.) Shea said he was the person who shot Mr. Graham, and no one else, and it was no use denying it; I heard of the murder before we came up; Davis said he had always opposed the shedding of blood, for he knew if they did so, they would not reign a week; as he said this he looked on the others and said, you see we have not reigned a day; Marshall said he would shoot any man that fired at him, and that Graham was a foolish young man and could expect nothing better for firing among so many armed men; Shea said, he would shoot his father if he fired at him. More than one of them said, that up till that morning they had done nothing to affect their lives; there were eleven guns taken, and upwards of twenty pistols found on the ground; Davis, Shea, Marshall, and Everett, all acknowledged having fired four or five shots each and Chitty acknowledged to having fired one shot; the party who joined me were Edward White, Mr. Richard Dangar, Dr. Gill, Mr. Warran, Mr. Sinken, and Chief constable of Muswell-brook; the following ticket-of-leave men were with me when we took them --- Walker, Dawe, two Evans; Mr. Dangar's ticket-of-leave man, an assigned servant named Donahoe, with a border police man, none of my party was wounded, but Davis, Marshall, and Shea were wounded among the prisoners; when we came on them. Davis was making cartridges, and another was casting balls; they told us they did not expect to be pursued that day; but that they did not expect to be pursued that day; but that they thought the whole country would be up in arms against them next day; they told us that they would rather have shot the two of their party who got away, than their pursuers; they called them their recruits, and not the tried men of the gang; they had some trinkets and between £70 and £80 cash.

Cross-examined - I think I did not say that our party fired first; they saw us half a mile off before we went in upon them; Davis said he always was opposed to the shedding of blood Everett might have said the same thing; they seemed to have made up their minds that they had committed an offence which forfeited their lives, and that there was no use in concealing it; Davis said he had ordered the party not to shed blood.

Cross-examined by Shea - You did not appear to be drunk, you were evidently sober.

Re-examined by Mr. Therry - Davis took deliberate aim at me through the fork of the tree and fired twice at me; their horses were very much jaded; they had seven, and we got four more, which they had changed; Davis set the party a laughing by telling a story that he had failed to break the bell that called him to work we learned from them that the men at the drays, near where we took them, had beat them off; they all said they would rather be hanged than go to Norfolk Island; Mr. Day said the ticket-of-leave holders and the assigned servants had got promises of pardons.

James Jewshaw examined - I am a saddler in the employ of Mr. Thomas Dangar; I knew John Graham, the store-keeper, he was about [?] years of age; I saw him before seven o'clock on the morning of the 21st December; I saw a man come into the yard on horseback, and about a minute before I saw a number of horsemen pass the gate; the man on horseback called out, "Cook, cook, come out here;" I said to a man working with me, "these are bushrangers," as he gallopped so unceremoniously into the yard; I cannot say if he is among the prisoners; I cannot say if any of them were there; I put down my work and went out the back way to tell the police; I went by the bush road, and I saw Graham on the road, I saw him run and then walk; I heard two shots fired, and saw Graham fall; he had a pistol with him; I went up to him, he said, "saddler, I am shot through, I am a dead man;" after he said this I turned round, and saw a man with a gun who said to me, "come back here or I will blow your brains out;" he was on horseback he had one gun before him and another by his side; I went back with him, he wanted Graham to go back with him, but he told him he was unable to do so; when we got back I saw an armed man on guard at the store door, and another armed man came out with some bracelets[?] in his hand, he threw them on the ground and the other trod on them; the man that [?] me back, said to the others, the man was [?] and there was no time for delay; they then went off; the man who took me back had a f[?] coat on; I was so much frightened I cannot recognise any of them; I was made to stand [?] tree opposite Mr. Dangar's store; they went down to Mr. Chiver's, on the opposite side of the road; people talking loud can hear from one house to the other, they are in sight of each other; he told the man at Dangarsthat the man was dead; from the time they came till they went away might be about fifteen or twenty minutes; I saw seven men leave Mr. Chiver's house; Mr. & Mrs Danger and their son [?] at home, as I saw them after; Mr. Chivers [?] also at home as soon as they went away [?] up to Graham, he was alive but senseless he died about ten minutes after.

Cross-examined. - The place where Graham was about one hundred rods from Mr. Dangar's door; I did not examine the pistol Graham [?] they did not appear frightened when going [?] they went leasurely.

Re-examined. - When I saw them afterwards at the Police Office none of them had on a f[?] coat; when taken they had ribbons in their [?]

Mrs. Chivers deposed - My husband is [?] lican in Scone; on the morning of the [?] December I saw three men like gentlemen [?] to Mr. Dangar's, one of them rode into the [?] and the other dismounted; I saw one [?] had ribbons of a light colour in his hat; [?] saw that I thought they were bushrangers [?] on going to the door to see if it was so [?] them came up and said, well man, what you got here for us; I asked him what he wanted, and he said he wanted money, [?] we had plenty of it and must have it [?] the tall man who said this (Glanville) [?] a piece and several pistols stuck round [?] he told me to get up and get the money [?] had not much time to stop. I got the [?] and put it out to him at the window, there was £30 in £1 notes, and a £10 note, a £2 note, and half a sovereign, with about £20 in silver, there were some orders in the box, but he said it was of no use to take them, he then demanded the watches, and I told him there was none; he then began looking for fire arms, and called out Ruggy, when the short man (Everett) came in, and took up the cash box, and asked me about it, when I told him that the tall man had just taken all he wanted from it; he then took two bullet moulds, an old blunderbuss, and a piece, and afterwards seizing a violin, he called out "Mori, can you play the fiddle?" and one of them answered, "no, but I want a bugle;" I afterwards saw Marshall among the party where the inmates and people in the place were bailed up, among the rest was a border police man, who they told it was a good thing for him that he was an assigned servant; I saw five or six men at the door loading fire arms; they soon after mounted and gallopped off; when a little way off I counted seven; they went off as quick as possible; I saw a man with a blue cap on, one of the gang had three or four men bailed up, he was armed, he went off with the other men; I heard three shots fired apparently near us; I saw Graham alive at sundown on thepreceeding night, he was then well and alive; I saw him brought down dead of a gun shot wound near the small of his back; I heard two of the gang talking about something after the shots were fired, when one said what had been done, on which one said he was settled; and it was replied, that it was all right.

Cross-examined. - Davis was at the bar when I came out of my bed room and told me I need not be afraid, as no one should hurt me; while standing at the bar he had ribbons on his hat; I could not recognise Davis at the Police office as he was there bare headed; I knew him when I saw him with his hat on after being at the Police office; Davis was very civil to me he did not offer any violence; they were all very civil, and said they would not hurt any one; they were about half an hour at my place; I do not know who fired the shots I only heard the report, I can say they were all one party, and they must have divided before they came to our house; they all went away together; from the noise of the horses' feet there must have been more than three men; six left my house when they went away, and the man at the tree made seven; Davis might have been in my bar all the time, and when the shots were fired.

Re-examined not above two or three minutes elapsed before the time that I saw the party riding into Mr. Dangar's and the man coming to my bed room for the money.

The court adjourned for ten minutes.

William Day, examined - I was cook at Mr. Chiver's on the 21st December last; about 7, A. M., some men came to the place, at first but one or two came, one of them collared me in the stock yard; he had a pistol in each hand and clapped them to my head; Everett was the man; he had on a Manilla hat, with party coloured ribbons in it; I was bailed up, they then went and told another man, the milk man, that they were bushrangers, and if he resisted they would shoot him, and he was also bailed up with me; I saw a shot fired about 100 yards off along the road from Mr. Dangar's house, I saw the party who fired it; it was at Mr. Graham, he was running from Mr. Dangar's; the party who shot at him was about 20 yards from Graham; I thought I heard a shot fired, and then I saw the person who ran after Mr. Graham fire; I thought Mr. Graham was hit as soon as the shot was fired after him, he was running before, but after the shot he writhed his face and slackened his pace; immediately after my attention was called off to Everett; I heard afterwards some parties whom I cannot identify, asking if the fellow was all right who was told he was; I got clear and ran for the police, where within about three hundred yards of the road, on my return, I saw Everett and six other mounted men getting along the road.

Cross-examined. - I do not know that Mr. Graham had a pistol; I do not know that there were any travellers at Mr. Chiver's house on the night before the morning when Mr. Graham was shot. Two or three went to Mr. Dangar's, and two or three to Mr. Chivers' house; the two houses are not more distant than fifty or sixty yards; one may go the distance in half a minute; but they are so situate, that a circumstance may occur at the one which might not be observed at the other.

Re-examined. - I think the parties were acting in concert together at the two houses, as, when I saw them leaving, they were all in company, and had their arms similarly slung.

Joseph Chivers, barman to his brother. - I recollect the bushrangers coming to my brother's house; I saw Everett and Davis, who were at the bar door, and the tallest man was also with them; Marshall was also there; it was he that asked if it was all right; I heard the answer - "yes, it is nearly so;" I heard some firing, two or three shots. It was after the firing I heard the question, and the party went off soon after. Everett bailed me up - he found me a seat; Davis was the man who kept me bailed up till the party went off; we can hear a call between the two houses.

Cross-examined. - I belive the party had not been in Dangar's above two or three minutes until I was bailed up; Davis, after taking charge, was over me until the party went off: we can speak from one veranda to the other, and get an answer; it was before I was bailed up that I heard the shots; there were three of them; there is a garden and pailing in front of each house. I am five feet and a half high; I can't say how many times the length of my body is a measure of the distance between the two houses.

Thomas Dangar, - I am a store keeper, at St. Alban's adjoining the township of Scone; I was at home on the 21st December, about 7 A. M. I heard a horse enter my yard, and saw it was a grey one; and one of my men was holding it; soon after I herd a person trying to make an entrance into my bed room; when either Mrs. Dangar or myself opened it; and a man entered, the prisoner Marshall; and asked if the deceased was my son; as he had fired at them, and would have his life; I told him he was my storekeeper, he demanded the keys, in order to obtain my cash box; he then took the box which contained orders only, he said they were of no use to him; he then took two watches, and a lot of gilt of bracelets; my little boy was afterwards brought into the same room, and bailed up with me; I know that the deceased was speaking to my boy a few minutes before he was shot, and that he had two loaded pistols, both of which I saw after his death one of them was then discharged; he slept on the counter for the protection of the store.

Cross-examined - I can only identify Marshall he was the man who bailed me up, and put the musket to my breast.

Examined by Marshall - you only demanded money from me; you told me to sit still.

Thomas Dangar, 11 years of age, son of the last witness - I was in the kitchen when the bushrangers came to the house; I saw the man Chitty come into the store, he called cook, cook, and gave the horse to the cook to hold; I saw Mr. Graham a few minutes before, he was asking for the key of the shop, he then disappeared; In a few minutes after, I heard a bushranger asking my father who a man was, as he had fired at them, and they would have his life, or shoot him for doing that; Marshall told my father to stand up, and searched his pockets; I heard no shots fired; I saw Mr. Graham dead about an hour afterwards; the cook was struck by Chitty with the gun to cause him to go to the place he wanted him, which was under the tree, in front of the house.

Mrs. Sarah Dangar, wife of Mr. Thomas Dangar, one of the preceding witnesses, deposed as follows: I heard one shot on the morning, and soon after I heard two others; I soon after saw the prisoner Marshall at my bed-room door; he asked if the man was there who had fired at him, as his life was not worth a straw whoever he was. Before he got into the bed-room I saw the same prisoner, Marshall, bailing-up our cook. The prisoner Marshall demanded the money in the house from Mr. Dangar; he then got the cash-box, and looked it over, and said that the contents were no good; he then insisted that we had more money in the house; I then told him we had another cash-box, which I gave him; he took a one pound note from it, and said he would take it with the watches; he also took a quantity of bracelets from the store, and gave them to another strange man who came in, saying, "why are you so long here? the fellow is down," soon after which they left the place. There were seven men who rode off after the robbery from our house, and amongst them was the prisoner Marshall.

William Jones, splitter and fencer, deposed:- I was in the bush on the 20th December last, about two miles from Muswell Brook, and I met seven men in the bush, six of whom are the prisoners at the bar; one of them, the sixth man, Chitty, directed me to go down to the creeks as a prisoner, and I was detained by them till sundown; they took my mate also and a shepherd, and asked us if we heard anything of them as bushrangers, and I told them not much. They had a pack horse and seven saddle horses; they took the beef in the hut and walked off with it; they offered no violence.

After this witness had left the box, the prisoner Everett said, "I hope that you will be the next that is shot and every b----y dog like you."

Mr. John Paterson - I live four miles from Scone; all the prisoners called at my premises about 9 a m., on the 21st December, and robbed me of a horse and pistol, they appeared very much agitated; they took the horse from the door, they compelled my man to saddle the horse, and they took it with them.

James Norrie, I am a settler in the vicinity of Scone, the persons came to my house on the 21st and had their breakfast; they frightened me very much; Davis told me to go in as he would shoot a man I a moment; they had shot one already; they told me to look out and give them warning if I saw any one coming from the same direction they had come from.

Cross examined. I had some knowledge of Davis; I had seen him before; he had had some refreshment before at my house; I have no doubt as to Davis being the man who spoke to me, but I cannot swear as to him. They left a £1 note to pay for what they had; they offered me no violence.

Mr. Richard South, Publican, of Page's River; seven men came on horseback to my house about noon, on the 21st December, and bailed us all up, and broke some fire arms I had in the house; Marshall told me he would deal with me before he left the house; he had robbed me three weeks before, when aided by Shea and Davis; I heard a shot fired at Mr. Rundell's store, after a man on horseback, the man showed me his pocket through which the shot had gone without injuring him.

Mr. Isaac Haig, surgeon, deposed - I was called on the 21st to examine the body of a young man named Graham, who had died from internal hemorrhage, caused by a gun-shot wound, the whole of the left cavity was filled with blood, the ball had passed in at the back about two inches from the spine, and had lodged in the muscles in the chest. I made a post mortem examination of the body of Graham, but did not find the ball; death had evidently been caused by the gun-shot wound, and medical aid could not have availed.

John Nowlan, constable, who was of the party who apprehended the gangcoroborated the evidence of Mr. Day, and was one of the party who took Glanville on the succeeding day, who afterwards shewed where he had flung his arms; this witness was of opinion that the first shot was fired by the bushrangers, who had their arms with them, and commenced firing on Mr. Day's party as soon as they (the bushrangers) took to the trees.

This closed the case for the Crown. Mr. Purifoy in an able address on behalf of the prisoner Davis, contended that there was no evidence of such of a constructive presence as would warrant the jury in finding his client guilty of being present aiding and abetting; he also submitted that the discripancies between the charges set forth in the information, and those contained in the evidence were fatal. He also insisted on the distance between the houses, as a proof that no such constructive presence had been made out, as was necessary to warrant the jury in finding them guilty of being aiding and abetting in both the felonies, and called on the jury to give the benefit of any doubts they might have respecting the guilt of the prisoner to his client. The prisoner Davis stated that he had subpoenaed a witness named Walker; he was called, but did not appear.

The Attorney-General, said he would restrict his observations in reply to the case of Davis, who was defended by Mr. Purefoy. He had to caution the jury against being led away by any spirit of compassion in his behalf. It was proved that at the time of the murder, he was aiding and abetting, so far as to be acting as a sentry on the parties bailed up in Mr. Chivers' bar when the murder was committed, and but for whom aid might have been extended to the inmates of Mr. Dangar's house. He also reminded the jury that it was a principle of British justice that if parties went out to commit a robbery or any other felony, and there was another perpetrated by one or other of those who went out to commit the first, that unless the others could prove that they had no hand in the perpetration of the second the whole were in the eye of the law legally guilty as accomplices.

His Honor the Chief Justice in putting the case to the jury, remarked that in whatever way the present case was viewed, it was a most serious charge; whether as regarded the prisoners, the public safety, or the maintenance of the laws, it was the most serious case which had been presented to the Court during the present, he might with safety say, during the last three or four criminal sessions. The jury would bear in mind what had been so ably impressed on them by the counsel for the prisoners, viz. - that they were not trying them for being bushrangers, nor for being illegally at large with fire arms in their possession, but for aiding and abetting in the crime of murder; all with the exception of one of the prisoners were indicted for this offence, the renaming one by the first count of the indictment, was charged with being the principal in the commission of the murder. With respect to the legal principle introduced in the case submitted to the jury, he felt it is his duty to inform them that it was a broad principle of the British law, that if any body of persons went out to commit one felony and another takes place, they are then all alike liable to the law for being accessories, His Honor here cited a case in which when he was a young man, nine young men in London went out to commit a burglary on the house of an uncle of one of the burglars, when the nephew went with the rest armed with a blunderbuss, and shot his uncle at the window, and seven out of the nine were executed for the murder, although it was proved that none of them were armed but the nephew. He also called on the jury to dismiss all prejudice from their minds, either in favor of or against the prisoners, he was the more anxious to impress this principle on the minds of the jury, as it might be that the very case in which they were now called to pronounce a verdict on, was one which had been made a matter of outcry, even by a portion of the public press, in order to impugn the due administration of justice, and solemnly implored them to try the case purely by the evidence adduced in support of the allegations contained in the indictment. He then went over the whole of the evidence commenting on the different parts which contained either direct or inferential evidence, for or against all or any of the prisoners; and remarked that he trusted the government would see the propriety of rewarding in the highest degree, those ticket-of-leave men and assigned servants who had behaved in such a becoming manner, by perilling their lives immediately when called on to put down such a system of rapine and blood as was charged against the prisoners.

The Attorney General informed His Honor, that all the men he referred to had received free pardons.

His Honor said he was most happy to hear that this was the case, as he was of opinion that it was a very judicious mode of teaching assigned and ticket-of-leave convicts to earn good characters for those they had lost, by preserving the lives and properties of the rest of the Colonists. He also pointed out to the jury, that the evidence which had been given of the subsequent proceedings of the party, had been put in for the purpose of enabling them to judge whether or not, the two parties before the attack on Dangar's and Chivers' premises, had not been in league before the said attack, was made which had been planned by the whole gang, and carried simultaneously into effect for the purpose of aiding and assisting each other. He also called the attention of the jury to the evidence given in favor of Glanville, who when taken on the 22ndDecember, denied being preset at the time when the shot was fired, and knew not of his own knowledge who had shot the deceased. It was also worth while for the jury to consider, whether this circumstance could not enable them to distinguish between the case of Davis and Chitty, and that of Glanville; also whether Marshall, by being present at both houses, was not a sort of link by which they kept up a co-operation between both parties, in order to enable them to aid and assist each other, and informed them that they were all equally concerned in the robbery of both houses, as well as of the other acts, provided the jury were convinced that they had separated themselves into two parties for the purpose of effecting their unlawful purposes. His Honor concluded by informing the jury, that if they entertained any well-grounded doubts of the guilt of any one of the prisoners, that they would give them the benefit of it; at the same they were bound to apply the evidence to the counts charged in the indictment, and if they found that the latter was established by the testimony brought before them, they were bound by theirto find the prisoners guilty.

The jury retired at a quarter past six, and returned at half past seven, with a verdict of guilty against all the prisoners.

After silence had been proclaimed, His Honor the Chief Justice, placed the black cap on his head, and called over the prisoners by name, to which most of them in the most careless manner replied either "here," or "here sir." He then proce[e]ded to inform them that the last scene but one of their guilty career had now arrived; that he was sorry to perceive from the hardened manner in which they had answered even the last interrogatory which was likely to be addressed to them, that they were all so callous and careless of the sentence that the justice of their country through him was to award to their crimes; he could not close his eyes to the fact that their guilty career had been checked by the praiseworthy exertions of a distinguished and praiseworthy magistrate, who, on hearing of their open violations of the laws had at great personal risk, and with the most commendable activity and exertion, put an end to that course of iniquity which they had so recklessly commenced. He had some reason to doubt that when they had commenced their fearful course of iniquity and crime, whether they had meditated murder, but still such was the end of it, for a most respectable jury had after a long and patient investigation of all the circumstances of the case, not only against them as a body, but also against them individually, found each of them guilty of that awful crime they were charged with as having committed. It was a mournful reflection that such crimes as that which they had been convicted of, were only to be traced to the neglect of the principles of religion and morality; and tended, however, unfounded to bring discredit on the Magistracy and Police of the districts where they occurred. It could be no reflection on the laws of the Colony, that such awful crimes as that which the prisoners had been convicted of were but too common amongst us, as whenever these laws were appealed to, they were invariably found to be strong enough to punish the guilty, as well as afford protection to the innocent, whenever the transgressors were subjected to their influence. It was not to be tolerated that bands of men who had been sent hither for the twofold purpose of enduring the punishment of their crimes in their native lands, and also for the purpose of trying what secondary punishment could do in the way of effecting a reformation of them, and converting them from vicious to virtuous citizens, were to be allowed to roam armed over the country, plundering the homes of the peaceful and well-disposed portion of the inhabitants with impunity, and setting the laws of God and man at defiance, by shedding the blood of those who, as in the present instance, attempted to protect the property of those who entrusted it to their care. The prisoners at the bar had had a long and ample opportunity of reformation afforded them, which by their own deliberate acts they had cut themselves off from in this world, and which acts of theirs had also been the means of numbering their days. He was sorry to see six apparently young men thus cut off, at a time when, by pursuing another line of conduct, they might have been in the fair way to be returned to society with regained characters, as he was happy to say thousands had been before them, with even less means than the prisoners. Although he addressed them as a judge, he could not avoid declaring his feelings as a man, when dooming his fellow creatures, as in the present instance, to an untimely end, which had been caused entirely by their own wicked acts. He felt it to be his duty solemnly to warn them, that there was not a shadow of a reason for any one of them hoping that the awful sentence he was about to pronounce on each of them would be either delayed, mitigated, or changed. From the outrages which had been committed of late by persons like the prisoners, setting the laws at defiance and carrying on the practice of bushranging, it had become necessary whenever the blood of human being was shed, to visit that crime on the heads not only of the principals, but of all who should be convicted of aiding and abetting in the perpetration of such a crime, and therefore as the sincere friend of the individuals at the bar, he solemnly counselled them to make the best use of the brief space of time that would be afforded to each of them on this side the grave, to which their crimes had borne them with such deplorable rapidity, ere they had apparently attained the prime period of manhood. He could solemnly assure them that the light of the day would soon for ever close on each of them; the game of their guilty career was now up, and they would ere long have to stand before the Author of their being, to answer not for one, but for every guilty act which they had committed. It had been said by some of them that they would prefer the doom about to be awarded to them to that of being transported for life to Norfolk Island, and it had been given in evidence that such was their boast to the gentlemen who had been the means of checking their guilty careers; their awful wish he could assure them should be gratified, in order to make an example of them to deter others from pursuing such a course of guilt and crime as they had plunged into. As their time was short, he would not harrow their feelings (if any they had) with a recapitulation of the enormities they had been guilty of, but trusted that they would employ the few moments which were still granted them to make peace with their Creator, and to show by their contrition (when they made their exit from this world) an example that would be the means of inducing their, as yet undetected fellows in crime, to the belief that no one could act as they had done, and quit the world without earnestly desiring that they had done otherwise. His Honor then passed sentence of death on the prisoners in the usual form.

During the course of the day the prisoners Everett, and Shea, behaved with all but disgusting levity. From the awful manner in which Davis changed his appearance when he heard the foreman of the jury pronounce him guilty, it was evident he had all along anticipated an acquittal. During the time the jury were retired to consider their verdict, these three appeared to be quite unconcerned laughing and chatting to such of their friends and acquaintances, as they recognised among the crowd which was intense during the whole time of the trial. In order to put a check to such unseemly conduct, they were ordered into the cage till the jury returned, when they began quarrelling among themselves, all of them assailing Davis, and charging him not only with being the cause of their ruin, but also with being the means of injuring some parties who had harboured and otherwise assisted them, when Davis heard his sentence he was seen to shed tears, while some of the others observing Mr. Lane the Superintendant in Hyde Park Barracks, in Court, vented their anger in wishing he might break his neck. The whole were removed to the gaol about fifteen minutes after sentence had been passed, each pair being handcuffed between three constables, and some hundreds of person marching along with them. We observed during the day, an unusual number of assigned servants and ticket-of-leave holders intensely listening to the proceedings.

Source: Sydney Herald, 27 February 1841

As a number of the junior members of the profession of the law have expressed a desire to obtain a statement of the points of defence, in the case of the seven bushrangers, by Mr. Purefoy, on Wednesday last, we subjoin the following, which we believe contains the legal points which that gentleman urged.

Mr. Purefoy, on behalf of the prisoner Davis, addressed the jury in an able and powerful speech of considerable length, the learned gentleman contended, first, that all the prisoners were out that day with a two-fold object in view, each distinct from the other, viz: to plunder the houses of Chivers and Dangar; that each had a separate part allotted him previously, and that those engaged in the robbery at Dangar's were in no way whatever, at the time, connected with those engaged in the robbery at Chivers's public house, that, therefore, as the two felonies were perfectly distinct and separate, one from the other, those engaged in the one, could not be said to be actors, or abettors, to those engaged in the other. The learned counsel next contended, that as the houses of Chivers and Dangar were sworn to be upwards of 200 yards apart, and that persons engaged at one, could not be heard or distinctly seen at the other, that there was not such a constructive presence as would render those at Chivers's aiders or abe[t]tors to those at Dangar's, at which latter place the murder was committed; lastly, the learned counsel cited a case from Foster's Crown Law, to shew that where several go out with intent to commit a felony and that one commit murder, the rest will not necessarily be guilty of murder, unless thee be evidence to shew, that allconsented to it, or that it was committed in order to carry into effect the common purpose in which they were all engaged. The learned gentleman concluded his very able and ingenious address to the jury, by informing them, that if they entertained any doubt whatever as to Davis being present at the murder of Graham, that they were bound to give the prisoner the benefit of that doubt, and acquit him of the capital charge.

Notes

[1]              See also Sydney Gazette, 27 February 1841; Australian, 25 February 1841.

Published by the Division of Law, Macquarie University