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

Published by the Division of Law     Macquarie University

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[burglary - bushranging, in Sydney - approver, evidence by - bushranger, harbouring - South Head lighthouse - convict escape - road gangs]

R. v. Ireland

Supreme Court of New South Wales

Burton J., 19 May 1836

Source: Sydney Herald, 23 May 1836[1]

 

Thursday, May 19. - Before Mr. Justice Burton, and a Civil Jury.

William Ireland was indicted for burglariously entering a dwelling house of our Sovereign Lord the King, at the signal station, South Head, in the district of Sydney; and Robert Lord for aiding, contenancing, and abetting the prisoner by lending him a certain gun for the purpose of effecting the robbery.

The principal witness in this case was an approver named Byrne, who deposed that he had been a scourger in No. 4 Road Party, situate at Berrima, from which he absconded, and was joined by the prisoner Ireland, who was attached to another Road Party, and with whom he became acquainted in Bong Bong gaol, where they were confined together.  They robbed a station at Mittagong, and by the prisoner Ireland's advice they came to Sydney, where he said he was well acquainted, and they could live well, and on their arrival they took up their station at Buffalo Bay, where they were joined by two other bushrangers, named Ferris and Johnstone, and they agreed to remain together.  They crossed the river by the old mill, and proceeded to Bondi, near to which the prisoner Lord, who is a shoe-maker, lives, whom, Ireland stated he knew well, and who would supply them with every thing they wanted.  On the night before the robbery, they called at Lord's, and he gave them a fowling piece, as they had only a musket, and two pistols amongst the four, and thus armed they went to the signal station at the South Head, expecting that one of the men stationed there, named Williams, had a large sum of money.  The obtained entrance into the house by representing themselves as the Police, and as soon as the door was opened, witness and the Prisoner rushed in, the other two men remaining outside the door, and witness presented his musket at Williams whilst Ireland searched the house.  They got no money, but took some bread, tea, and sugar, with which they decamped,  In consequence of information received, Inspector Christie, with other constables went after the bushrangers, and nearly came up with the witness and Ireland, but the latter escaped and the witness was taken, and almost immediately gave information to Colonel Wilson of his comrades being harboured by the prisoner Lord, and of his lending them the gun, and the constables were ordered to look out for the bushrangers.  No proceedings, however, were instituted against Lord until the prisoner Ireland was taken, in the month of February following, a period of upwards of three months, although the evidence of the witness was corroborated in the following manner: Christie, with other constables, conducted the witness to Lord's house, and sent him in to converse with Lord on the subject, whilst they stood listening outside, and heard Lord tell the witness that ``his comrades had not been there since he was there; that the constables were after them, as he had called that day at Christie's and seen several constables there; that witness had better go out of the way, as he (Lord) would not have them taken on any account; that Christie thought that he (Lord) would give him information, but he would not do so in a hundred years."

This witness was corroborated in many parts of his evidence by the men, Williams and May Cock, who were at the signal-station, and by Christie who deposed to most of the facts.  There was no proof of the identity of the gun which was described by the witness, but which had not been taken on the prisoners, and two witnesses were called for the defence who swore that Lord never had a gun of the sort described by the witness Ireland was sworn to positively by May Cock as being one of the men who entered the hut.

His Honor in putting the case to the Jury observed that with respect to Lord, they were not trying the case of his harbouring bushrangers; the charge against him was his ``aiding and abetting a felony by lending a certain gun, &c.," and the Jury must be satisfied that this part of the information was supported.  The only evidence to this point was the uncorroborated evidence of an approver, who stood in the box convicted on his own testimony of various crimes, and who, had he not been received as an approver, but had been put to the bar, would have had his life forfeited, on the evidence of the witness Williams.  Besides this, several parts of his evidence had been flatly contradicted by the other witnesses.  He was, however, a competent witness and the Jury would take his testimony, suspicious as it was, for what it was worth.  It was a very singular feature in the case that, as according to the approver's testimony he had given information of the circumstance, and all relating to the gun, to Colonel Wilson, in November, no steps were taken against Lord until the February following, which might be supposed would have been the case if, as he said he had informed Colonel Wilson of it when he was taken.

The Jury retired a short time, and returned a verdict of Guilty against William Ireland; Robert Lord, Not Guilty.  His Honor ordered sentence of death to be recorded against Ireland, and Lord was discharged.[2]

The Attorney-General said that although Lord was free, and had been acquitted by a Jury, he thought that he ought to be sent to the Magistrates to be dealt with summarily for harbouring bushrangers, and wished the court to direct the Magistrates to proceed against him.

His Honor said it was a very proper case for the Magistrates to notice.  It was a civil process however, and he could not make any order on the subject.

 

Notes

[1] See also Sydney Gazette, 21 May 1836.

[2] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).