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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Butler, Evans, Lush and Brown [1824]

stealing, sheep - approver, evidence of - criminal trials, legal representation in

Supreme Court of Van Diemen's Land

Pedder C.J., 8 June 1824

Source: Hobart Town Gazette, 11 June 1824 [1]

Tuesday. - Thomas Butler, Edward Evans, Silvester Lush and Daniel Brown were tried on an indictment containing two counts, the first of which charged the prisoner, Butler, with having feloniously stolen certain sheep, the property of Mr. William Walkinshaw, and the others with having received the said sheep, knowing they had been stolen; -- while the second count merely varied the accusation by stating the sheep as belonging to some person or persons unknown.  All the prisoners pleaded Not Guilty.

The Attorney-General called, in support of the prosecution, an accomplice named Thomas Keene, whose testimony was, so far as it could merit credence, and confirmed as it became by more respectable evidence, decisive of the guilt alleged against the first three prisoners. -- This witness underwent a rigid cross examination by Evans, but his evidence in chief remained unskaken.

The next witness was William Kirbey, late a constable, who deposed, that in company with constable Worral and Morris Roberts, he went at day-break on the 3d of June, 1823, to the premises of Lush, when he found and secured him, together with Butler and Brown.  On searching the house, there were found the carcase of a sheep hanging in the bed-room, eight pieces of kidney suet in a shirt, in a box, near the bed, a kangaroo-skin knapsack, and a fowling piece, which Butler owned; five rounds of ball cartridge on Butler's person, eight bullets, and a purse of kangaroo-skin, filled with gunpowder.  At the bottom of the garden, near the water, there was a large fire, in which were several shank and jaw sheep-bones; witness then searched the barn; where, concealed in the midst of a wheat mow, he, after perhaps two hours, discovered about seven cwt. Of mutton, salted in three casks.  Lush was asked where he obtained the fat?  he answered from Fitzgerald.  When the prisoners were being removed, Butler said to witness, ``I have done what will hang me; but if not, there were persons ready to swear away my life."  Two or three days afterwards witness went to the Dromedary Creek, and traced some sheep to a stock-yard, at the Tea-tree Brush, near the Derwent; -- saw three sheep lying dead, their heads nearly consumed, as appeared, by vermin, close to the stock-yard, which evidently had been much used; -- cut off two tails from those sheep which had a feather mark of a blue colour, from India ink, under them.  The skins were much torn, -- some pieces lay about the bush, near the stock-yard - one piece was marked with a W.

Worral corroborated the last witness in most particulars, but stated there were two sheep hanging up in the bed-room, and that Lush accounted for them by saying, that his dog had worried one, and the other he had received from Arthur Connelly. - Witness on the 1st of June had accompanied Kimberly, the district constable, to Evans's house, and enquired if any stranger was there?  Evans said there was a man in the bed-room, to whom he had given a night's lodging, but he could not tell who he was.  The bed-room door was then burst open, and Keene stood within, he was taken into custody.  In the bedroom two hind quarters of mutton hung, which Evans said he had raceived [sic] from Collis, and Collis's son.  There was salted mutton in a washing tub, which Evans said he had from White.

Kimberly stated he went to Evans's early in the morning, and saw the half of a fresh-killed sheep hanging up.  The salted meat had not been long in salt.  Evans said he had received two sheep from Collis, one from White, and a fourth he had done work for.  There were in salt parts of four sheep; and the half-sheep which hung up had not been cut down the centre. 

Arthur Connelly had kept the half-way house called the Black Snake, and he swore, that Lush, a few days before his apprehension, had called on him to borrow a knife, for the alleged purpose of killing some sheep.  He accounted for possessing them to witness by saying, a settler named Elliott had been indebted to for a plough, and not being able to pay in money, he, Lush, had taken sheep for the amount.  Witness accompanied him home, and after placing himself, proud as a Persian, before the fire, lit his dudee, and commenced the philosophic operation of ``puffing away idle sorrow," which the little old gentleman observed he was in the habit of doing every day.  In about half-an hour witness ceased to smoke, and on going out saw the prisoner, Lush, at the gable-end of his house, knealing on a dead sheep, which he appeared to be skinning.  The witness had often lent joints of meat to Lush, thinking him a poor man, but the loan had never been returned; on my oath it never has, said Arthur Connelly.  The day after this visit he again went to Lush's, in whose barn, among the wheat, were three casks of meat.

Here the case for the prosecution closed, and Evans, who more than once indicted considerable intellect, addressed the Court in denial of guilt, with much respectful pathos; called a man namedLuttrell, chief constable at the Black Brush, who gave him an excellent character, and described him as never having being considered a dishonest man until his commitment on the present charge.  Witness also deposed, that on the 1st of June, 1823, about half a cwt. of meat, and six pounds of fat, had been brought to his house from Evans's, by Whaley.

John Whaley was then examined by Evans, and ably cross-examined by the Attorney-General.  He swore, that for more than a month, but how much more than a month, whether two, three, or four months he would not say, before the apprehension of Evans, he had resided with him.  That Keene also slept at Evans's house a few nights before June the 1st. - That after Evans was imprisoned, witness took a washing-tub of meat from the house to Davis's, and then sent it to Luttrell's house by Luttrell's two men, (thus as it must appear directly contradicting Luttrell, who swore that the meat was brought to him by Whaley.)  The meat so sent was no so much as a whole sheep.  Witness never in his life saw Butler at Evans's house; -- slept at Davis's from the time of his apprehension, which might, have occurred two or three days before that of Evans.  Keene was Davis's servant, and had driven his team with wheat to Green Point; on his return he slept at Evans's.  Witness that night went to bed, leaving Evans and Keene up; they went out, he fell asleep, and before he awakened they had returned.  The day Keene went to Green Point, a sheep was brought to Evans's; witness saw it in Evans's bedroom, & believes Keene slept with Evans.  On the following morning there were two or three carcases of sheep in the room, which had not been in it the day before. - Evans had worked very hard as a shoemaker all that week; he generally worked hard, and had business enough to employ himself and two men.  Evans told witness he was working for a person who would pay in meat, and witness knows that Evans could get a sheep for a pair of shoes.

His Honor the Chief Justice summed up the evidence at considerable length, observing on the law as applicable to accomplices; the testimony of whom, though always attainted and inconclusive of itself, was yet suseptible of validity, through the corroborative evidence of disinterested persons, displaying the real features of what had been legally authenticated, distinguishing the different degrees in which the admissible proofs affected the prisoners, respectively; and observing, that as affected Brown, if the Jury should even be of opinion that the sheep found in the house of Lush had been stolen, yet unless it were a matter of certainty, that before the act of receiving the said sheep was completed, he, Brown, knew they were stolen, the Jury would acquit him.  Those Gentlemen immediately retired, and on their return found Butler - Guilty; Evans Guilty; and Lush - Guilty.  But Brown was - Acquitted.

Immediately after the verdict had been recorded, Lush was heard to utter a complaint against Mr. Solicitor Dawes, to whom he said more than £10 had been paid, for the purpose of securing his legal aid during the trial, but he had not attended.  On hearing this, the Court most properly dispatched a messenger to Mr. Dawes, who shortly afterwards took his seat at the bar, and on learning what had passed, rose to address the Chief Justice in explanation.  Mr. Dawes said, he certainly had received a fee to plead in the just then concluded case, on behalf of Lush, and he as certainly would have done so, but when he left Court yesterday, understanding, as he then did, that case would not be brought on before this morning, and finding this morning that it had been partially opened last evening, he was impressed with a fear that his ignorance of the evidence already entered into would shackle his efforts for the prisoner, and in consequence he declined to appear; at the same time ordering his clerk to refund the fee he had received to the party who had paid him it, (but that party was not the prisoner.)  Mr. Dawes disclaimed with animation, even the most remote design to neglect a client's interests, to which he ever yielded his purest zeal, and which he beheld as consecrated by the ties of his profession; or of evincing deficient respect to His Honor, and the Court.  And the learned Gentleman concluded with expressing his confidence, that the error which gave rise to this unpleasantry, would be imputed, as he proudly felt it should be, to the honourable reason that had solely caused it. [2]


[1] See also R. v. Butler, Davis and others, 1824.

[2] Evans and Lush were sentenced to transportation for 14 years: Hobart Town Gazette, 6 August 1824.  The Gazette did not record the sentence of Butler.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania