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Decisions of the Superior Courts of New South Wales, 1788-1899 |
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Published by the Division of Law Macquarie University |
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[Black Act - bushrangers] R. v. Flanagan, Bayley, and Browne Supreme Court of New South Wales Forbes C.J., 23 November 1825 Source: Sydney Gazette, 28 November 1825
James Flanagan alias Reilly, Thomas Bayley, and William Browne, were indicted under the Black Act, for maliciously shooting at Thomas Horford, at Argyle, on the 23d of September last Flanagan as principal, the other prisoners as accessaries. The Attorney General[1] stated the case. Thomas Horford deposed, that he is in the service of Mr. Robert Futter, a Justice of Peace, in the County of Argyle; that on the 23d of September last, his master hearing that the prisoners, who who [sic] were noted bushrangers, were in the neighbourhood, took with him witness and another man, and went in pursuit of them; they came up with the prisoners who were all armed, about 4 miles from Mr. Futter's residence. Mr. Futter desired them to stand, which they refused, and presented their arms; Mr. Futter then rushed in and seized Browne, and Flanagan immediately discharged a blunderbuss at witness, the contents of which lodged in a tree close to him; the three prisoners were then, after a desperate resistance, taken into custody by Mr. Futter and his servants. His Honor observed, that to bring this case under the statute, it was necessary that the gun should be loaded with powder and shot, or slugs, and likewise that it should be presented with a malicious intent, as whether death ensued or not, the levelling constituted the offence. If the Jury were satisfied that such an intention existed in the mind of the prisoner Flanagan, it brought the case within the statute, inasmuch as he was concerned; how far the other prisoners were aiding and abetting, they should collect from the circumstances of the case. Guilty. Remanded.[2]
Notes [2] Judgment of death was recorded against the prisoners: Sydney Gazette, 8 December 1825; Australian, 8 December 1825. 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). For other Black Act cases, see R. v. Byrne, Wright and Murphy, June 1825; and R. v. Storey, Percival, Bishop, and Mitchell, 23 November 1825, Sydney Gazette, 28 November 1825. On the background to the Black Act, see E.P. Thompson, Whigs and Hunters: the Origin of the Black Act, Penguin Books, London, 1977. |
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