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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Walters [1833]

burglary - robbery - Restdown

Supreme Court of Van Diemen's Land

Montagu J., 13 November 1833

Source: Colonist, 19 November 1833

George Walters stood indicted for a burglary and robbery, in the dwelling house of Thomas Sharp, on the night of 30th September last.

Thomas Sharp examined by the Attorney General. - Lives at Restdown; recollects the night of 30th September last; was disturbed by a noise at the outside door; heard some persons talking; witness got out of bed and asked who, or what they were; they said they were constables from Kangaroo Point, and were in search of bushrangers; witness replied that there was no person in the house, but his own family; heard some person at a distance say, "burst the door open," which was immediately done, and three men entered; one was disguised with something like a black handkerchief over his face; another was disguised with a comforter wrapped round his head; the third person was not disguised; the man with the handkerchief over his face was armed with a large pistol; he with the comforter was armed with a small fowling piece; the man that was not disguised, was not armed; witness retired to bed on their entry, and the robbers got a light; one of them stood sentry over James Conolly, (the overseer) in the outside room; there were no other persons in the house belonging to the family but Conolly, witness and wife; the man with the handkerchief seemed to direct the movements of his party; he ordered them "to search well; there was plenty of time before morning, and to examine the old woman's pockets particularly, and if they made any resistance to scatter their brains on the pillow;" the man, who received the order, came into the bedroom, and ordered witness to hold up his head; having done so, he ransacked under the pillow; they plundered the outer room at first, and deposited the articles outside; the man with the black handkerchief ordered witness and wife to hold up their heads, that he might examine under the pillows; during the robbery, the dogs barked, and two of the men went out, but returned immediately; the robbers carried away two guns value fifty shillings, one telescope value fifty shillings, one time piece value thirty shillings, a silver table spoon, and a quantity of wearing apparel, they took every thing they could lay their hands on that was any value; they never put their finger on any of the inmates, but they threatened to blow their brains out in case of resistance; witness firmly believed that the prisoner was one of the party; he knew him by his voice and personal appearance. [Mr. Justice Montague here cautioned the witness to say nothing that he was not sure of, as the prisoner, if convicted, may not be living that day week.] He was certain he was the man that wore the black handkerchief over his face; he was armed with a pistol and stood over the overseer's bed; saw the prisoner three or four days after the robbery, at Mr. Wise's farm, which farm was adjoining to that of witness; had some conversation with him, and in about a week after he was taken into custody; suspected the first time he saw him that he was the man; but wanted to hear his voice more particularly, he being a stranger; the reason why he did not give the prisoner in charge at first was, that he labored under an apprehension that by so doing the others might escape; witness was looking at the men from his bed-room all the time they remained in the kitchen, during which period they had a light; prisoner had on a smock-frock, duck trowsers, and scotch cap; the handkerchief was tied round his face, had seen him a few times before, but did not know his name, or where he lived; knew him by his size, and the shape of his person; could distinguish his voice from any other; had no doubt but he was the man.

James Conolly corroborated the testimony of the preceding witness, and stated that the prisoner was the person who held a pistol to his head, and threatened to blow his brains out; he had no knowledge of the prisoner before that night, and what he derived then was from his voice; would swear positively that he was one of the men, and when in the inside room heard him say that if the old woman made any noise they were to scatter her brains on the pillow.

Edward Merrott examined by the Attorney General. - Was a boatman to Mr. Ross; recollected the night of 30th September; it blew very fresh and witness had to run his boat under Mr. Sharp's land; he came on shore and proceeded in the direction of Mr. Sharp's dwelling to procure a drink of water; saw three men come from towards the house; one of them had a gun, another had a pistol, and the third struck at witness with a stick; none of the men were disguised; it was within about fifty yards of the house where witness met them; swears positively that the prisoner was not one of the three; the man that carried the pistol wore a red shirt and scotch cap, they were joined by two others, and the whole five went in to the bush together.

For the defence, Mr. Capon and Mr. Peet were called. Each of these gentlemen gave the prisoner an excellent character; Mr. Capon had known him upwards of thirteen years, and never heard his character impeached - he always considered him to be an honest man.

His Honor having summoned up, the Jury after a short consultation returned into Court with a verdict of Guilty.

Mr. Justice Montague, in passing sentence on the prisoner, advised him to prepare for the worst, except indeed the Council entertained a doubt as to his identity by the witnesses for the prosecution, otherwise in the lapse of a week he would be standing before another tribunal; he then proceeded to pass the extreme sentence of the law on the unhappy man.

[The prisoner, who is an aged man, appeared calm and collected through the trial; he protested that he was an innocent of any participation in the robbery as the child unborn; and we understand, that such was the opinion entertained by many in Court.

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