[approver, evidence of - robbery]

R. v. Kirkham, Burke, Nosworthy and Weston

Supreme Court of Van Diemen's Land

Pedder C.J., 28 January 1835

Source: Hobart Town Courier, 6 February 1835[1]

Wednesday. -- Present, His Honor the Chief Justice.

The Solicitor General moved that Michael Rice be admitted as King’s evidence in the case of Kirkham and others.

Thomas Kirkham, John Ashton, John Burke, Charles Nosworthy, and William Weston, for stealing a quantity of property for Mr. James Hamilton’s store at Ross, and putting Mr. James Hope in bodily fear (Nosworthy and Weston as accessories before the fact), were then put upon their trial.

It appeared that the five prisoners with M. Rice concerted the robbery two days previous to the commission of it, at the hut of Nosworthy and Weston, and that in consequence Kirkham, Ashton, Burke (who was the Captain), and the approver, Rice, went armed to Mr. Hamilton's house on the night of the 24th November last. Ashton blacked his own comrades’ faces with a box of blacking which he had brought with him. The dogs in the neighbourhood having set up a great barking the inmates of the house were disturbed, and a boy opened the street door, when the four men rushed in. While Rice kept guard with a gun, the other three tied Mr. Hope and two boys, and then proceeded to plunder the store of an immense quantity of goods, some of which were afterwards taken from each of the prisoners.

The approver Rice was apprehended near New Norfolk by district-constable Peel upon another charge, and during the time he was in gaol he confessed all the facts of the robbery, and upon his statement, Mr. Peel with other constables went up the country to the hut of Nosworthy and Weston, where they found all the five in bed together. They secured the prisoners’ arms, and then took them into custody; first taking Kirkham, Burke, and Ashton, upon the pretence of their being runaways, to Mr. O’Connor’s, where they were secured, and then returning for the prisoners Nosworthy and Weston, whom they had left in the hut, not daring to apprehend the whole at the same time; by which scheme they contrived to secure the whole five without exercising violence.

The Judge explained to the Jury the law upon the case, and after his summing up at some length the evidence, the Jury retired, and returned in a few minutes with a verdict of guilty against all the prisoners. His Honor in passing sentence of death upon each of them, told the prisoners Burke, Ashton, and Kirkham, that he could hold out no hopes of mercy to them.

Burke displayed throughout his trial a violence of temper which was quite indecorous, even in a man so situated.

Source: Colonial Times, 3 February 1835

            Thomas Kirkham, John Ashton, John Bourke, Charles Nosworthy, and William Weston, were put to the bar, the three first charged with having feloniously entered the house of James Hamilton, at Ross, and stolen various articles of wearing apparel, &c. therefrom, and the two last with having been accessaries, both before and after the fact.

            James Hope being called, said, he was servant to Mr. Hamilton, who resided at Campbelltown, but who had a store at Ross, of which he (witness) had charge. Recollects the evening of Monday the 24th November last. About 10 o’clock, having closed the store, he was sitting in a room adjoining, along with a boy named Reeder, who assists him in the store; there was also another boy in the room; who was lying on a bed. Hearing a noise of dogs barking violently and human voices, he desired the boy Reeder to see what was the cause. Reeder went and opened the door, when four armed men with their faces blacked rushed in. Three of them came into the room where witness was, and the other followed Reeder, who ran into the store. One of them, Kirkham, came up to him, presented his piece and told him to make no noise, or he would blow his brains out. He (witness) begged of him not to shoot, and moved to another part of the room; Kirkham followed him and stood guard over him. The man who followed Reeder into the store now brought him into the room where witness was, and tied his hands behind him. Witness and the other boy were also tied in the same manner. The men then took three counterpanes from the bed into the store. One of them opened a box, which he pulled from under the table, and turned out its contents. He asked where the money was, and witness replied, that he had none. The man then went into the store, but came out again directly - searched a portmanteau and a writing desk which were in the room, but finding no money, again demanded where it was. Witness replied, that what money he had was in a desk in the store. The man went into the store, and witness heard a noise which he knew to be that of the lid of the desk opening. He called out and begged they would not take away a watch of his own that was there; to which a voice replied “they would not.” A little time before this, the man who guarded him was relieved by another. There was a pistol above the fire, which one of them took down; they were in the house about three quarters of an hour. When they went away, they cautioned them not to move or give any alarm, for that they should watch the house for two hours. Soon after they went, one of the boys disengaged his own hands, and then untied him (witness) and the other boy. They then went into the store, which they found in the greatest confusion. He missed several hats, waistcoats, jackets, trowsers, handkerchiefs, knives, razors, combs, and other articles. He had seen these articles safe a little while before the men came to the house. He felt very much alarmed during the time the men were in the house.

John Reeder corroborated the last witness’s statement; he only saw three men while in the house, but distinctly saw four coming to wards the house, all of who had arms.

Cross-examined by Mr. Horne. - Cannot recognise the men at the bar.

District Constable Peel produced a number of articles, which he said he had taken from the prisoners, a handkerchief which was given up to him by Emily Presnell, a knapsack taken from the house of a person named Gordon near New Norfolk, and other articles; also two muskets and a double-barrelled gun, which he took from the hut of the prisoner Weston. He stated that in consequence of information, he proceeded on the 17th December last, to a place called Curryjong Bottom, near Oatlands, to Weston’s hut. Constable Lamph and two of the Oatlands police accompanied him; it was about thee o’clock in the morning; Lamph entered first; there were five men in the hut; Lamph said they were come there as they suspected some of them to be runaways; they then requested the men that were in the hut to accompany them to Oatlands, in order that they might ascertain whether they were runaways or not; Burke, Kirkham, and Ashton went with them, and the other two stopped in the hut. When they got to Mr. O’Connor’s, at St. Peter’s Pass, they charged the prisoners with felony; they attempted to resist, but were handcuffed and conveyed to the gaol; witness and his party then returned to the hut, where they found Weston and Nosworthy whom they apprehended.

            Constable Lamph corroborated the last witness in his examination.

John Whittick, a tailor, recollects giving up to Peel a waistcoat, which he had from Kirkham to alter. Kirkham gave it to him about the 6th or 9th December; gave it to Peel about the 22nd of the same month.

Emily Pressnell, who resides at the Barradale Inn, Glenarchy, recollects giving up to Peel a silk handkerchief, which she had purchased from a man called Paddy Bourke, about a month before - the handkerchief now produced is the same.

Constable Lewis. - Remembers taking a knapsack and a waistcoat from Hugh Gordon’s, near New Norfolk, which he gave to Peel. A woman named Saunders delivered it to him. Mrs. Gordon was not present. That is the knapsack.

Mary Gordon examined. - A man named Rice left the things in her care on the 11th December; does not know what was in the knapsack.

Hugh Gordon examined. - Knows Rice; saw him take a yellow waistcoat from his bag on the 11th December, and ordered it to be given up to Lewis - the waistcoat now produced is the one.

Joseph Ibbotson examined. - Is servant to Mr. Maclanachan; knows the prisoners. On the evening of the 24th they were at his hut, which is about two miles from Ross; Ashton told him they were going to Ross, and Rice asked if he would go with them; he said he would not, as he was very much tired, having been washing sheep all day; did not know at that time what was their errand at Ross; a few days afterwards was at Weston’s hut, where he saw the five prisoners at the bar and Rice; Weston’s hut is in the Western Tier, about sixteen miles from Ross; saw some knives and combs; Rice offered him some of them; he (Rice) said they had them from Hope’s, and that they had got more things; Rice and Bourke said they would sell their’s; but Ashton and Kirkham said they would keep their’s. Weston and Nosworthy were outside the hut during this conversation; does not know whether they could hear it; slept at Weston’s hut that night.

By His Honor. - Weston’s hut is twelve or thirteen miles from the place where he lives; was never apprehended for this affair himself; did not receive any of things that were offered to him at the hut; he had to go to Mr. Harrison’s to look after a sheep-dog, which took him within five or six miles of Weston’s hut, and when there he thought he would go and see Ashton; the prisoners never told him what they were going to Ross for; made a different statement when examined before Captain Forster, but was not then on oath; they did say they were going to Mr. Hope’s, but not to rob him.

Michael Rice, one of the four men who was present at the robbery, and who turned King’s evidence, was next called.

[One of the prisoners objected to Rice as a witness - the prisoner accused this man of the most awful crimes, even murder!]

Witness remembered Saturday, the 22nd November; was at Weston’s hut, which is the five prisoners were all present; Ashton said he was at Ross a few days before, and that he had about 15 or 16 miles from Ross, on that day; received information about a store, where there were plenty of goods, and which could be easily robbed; not much more was said about it until Sunday, when it was concerted that the robbery should be effected on the night following. Next morning it was proposed that Ashton, Burke, Kirkham, and himself should meet at a hut belonging to Mr. Maclanachan, about two miles from Ross, where a man named Joe resided; Weston and Nosworthy were to watch about their own hut, to see that no soldiers or policemen were thereabout, to intercept them, when they returned from the robbery; they (Bourke and witness) left Weston’s hut about nine o’clock; when they arrived at Joe’s hut, there was nobody in; they waited until Kirkham and Ashton came up, when Ashton said he knew where Joe kept the key; having found it, they let themselves in, and had some tea; Burke and witness then took the fire-arms and hid themselves at a short distance; Kirkham and Ashton waited for Joe, who was to be the fifth man in the robbery. Soon afterwards they came and said Joe had returned, but had a stranger with him, and therefore could not come. This was about half an hour before nightfall; they accordingly went to Ross; as soon as they came within sight of the light in the store, they each stopped to blacken their faces. They then walked several times up and down the street without seeing any person. He (witness) was armed with a pistol, Ashton and Burke had a double-barrelled gun, and Kirkham had a bludgeon. When they came to the store, two dogs which were on the premises, barked violently, a door was opened to see the cause, and they all four rushed in and shut the door after them; Burke went into the store, Kirkham and Ashton into the room where Mr. Hope was sitting, and he (witness) remained in the passage. [He then described what took place in the house in the same manner as the first witness, Hope, had done.] Before they left the house, they made the goods they had taken into three bundles with the rugs they had taken from the bed. Kirkham stayed after the others went away. When they had got about 300 yards, Kirkham overtook them; they went in the direction of Weston’s hut, When they had got to about a mile from the hut, Weston met them, and said that it was all right, meaning there were no soldiers or constables about, and that he expected them sooner; he took Kirkham’s bundle to carry. When they reached the hut they found Nosworthy had prepared some tea and meat for their breakfast; after eating it, Burke proposed that they should divide the booty into six equal shares, it was accordingly done; he (witness) got some cloth, handkerchiefs, trowsers, braces, a hat, a razor, two shirts, and some ribbon. Some of the articles produced are like those he had. They then planted the greater part of the goods - this was on the Tuesday. On the next night, Joe came; the whole party were inside the hut, as it rained. Joe said, there were constables after them; had never seen Joe before, and did not know his other name (Ibbotson being recalled, the witness at once recognized him). Weston said he was a good and trustworthy man, and ought to have some recompense. They, therefore, all agreed to give him something. Joe slept with them that night. Burke, Ashton, and himself (witness) left the hut on Wednesday, and went to Bothwell, then to the Hollow Tree, near Hamilton, where they parted - Burke and Ashton going towards Hobart Town, where they intended to sell their goods. He (witness) was apprehended by District constable Peel near New Norfolk, about a fortnight after the robbery; he had left the knapsack at Gordon’s.

By His Honor.- Weston and Nosworthy were not present at the robbery, but were to keep watch about their own hut to see that the coast was clear; did not know that he should be pardoned for thus informing against the rest; had never heard there was a reward offered for their apprehension until after he was taken. Told Peel and Lamph that he knew who committed the robbery. Peel said it was a bad job, and that he had better tell all he knew about it. He (witness) was a free man - had lived at Weston’s hut for some time before the robbery; had only seen Ashton three days before; Weston was engaged in splitting timber for fencing, and Nosworthy was his partner in the job - knows nothing of the others.

In answer to the prisoner Ashton. - “Might have seen you before at O’Connor’s; Peel and Lamph never came to the gaol to see me. Lamph brought me my victuals sometimes.”

The prisoner Burke now questioned the witness - “I was not apprehended for this robbery - it was on a warrant for stealing a cart and some bullocks belonging to Mr. Arthur O’Connor; I never saw you at Cross Marsh or any where else. Ashton and you tried to murder me - never said that warrants were out against me in every direction, and that I did not know where to go to be safe. Never said I wished I had Mr. O’Connor, and that I would settle him like I did the man at Mr. Simpson’s. Never tried to put Mr. O’Connor “out of the way”. Burke then said he was sorry that none of the gentlemen of the Jury knew Rice’s character so well as it was known on the other side the Island - Mr. Mulgrave and other gentlemen knew it well. He had summoned several witnesses, but they had not come. Rice, ever since he had known him, was continually boasting of his bush-ranging exploits, his robberies, and even murders - that he had robbed Mr. Walker’s, and that he had shot a man, who was bed-ridden, at Mr. Simpson’s farm; that he did not believe Rice had earned six shillings for the last six months.

(His Honor was obliged to stop the prisoner several times in this harrangue, and said, that he could not sit there to hear such language - but, that the prisoners would have an opportunity of calling their witnesses, if they had any.)

Rice Cross examined. by Mr. Horne. - He pleaded guilt to this indictment -does not expect to be pardoned, does not know what is meant by King’s evidence.

By His Honor. - After the robbery, they went straight to Weston’s hut; it was about six o’clock in the morning when they were returning. Saw Joe about ten days before the robbery, but it was not thought of them; Joe was to have been the fifth man; he (Joe) was not present at the consultation. Burke and Ashton proposed the robbery; he (witness) agreed to it. We all talked and laughed about it, and Weston said, it was a good job, and well done. Burke made the blacking for their faces at Weston’s.

In his defence; Ashton stated, that Lamph had been very frequently with Rice in the gaol, and that Lamph had persuaded Rice to tell this story in order to hang them all and save himself.

Burke also said he was quite sure that Lamph and Rice had made up this story between them, and that on their way to Hobart Town Lamph and Peel were continually boasting of the sums they were to receive for apprehending them. He had written letters to eight different persons who could prove that he was innocent of the crime of which he was now charged, and that he thinks those letters were intercepted. On the day he was apprehended he was going to Launceston, when he called at Weston’s, and the constables came in while he was there.

Weston said he could prove his having worked for six years at one settlement. He had never seen Rice except the time he ordered him away from his hut, which was robbed directly afterwards, and it was nobody but Rice who robbed it. His master had given him the trousers which were taken from him.

Mr. Horne called Mr. Charles Kerr, who said he lived at Saltpan Plains. The prisoners Weston and Nosworthy were employed by him in splitting timber for fencing. Weston had a sore hand, which he said was caused by the bite of a snake. He (Weston) said he could not work in consequence. He (witness) thought it would not prevent him carrying a bundle. Had given him slops on one occasion, but does not think those produced are the same.

James Maclanachan, of Saltpan Plains, knows Weston and Nosworthy by sight. Weston has been employed by him, but cannot speak to their characters.

Mr. Horne submitted, that there had been no case made out against his clients, Nosworthy and Weston. His Honor thought there was ample evidence against them, it having been proved that they were both present when the robbery was planned; and also that they had partaken of the fruits of the robbery.

In charging the Jury, His Honor said that Rice’s evidence must not be received, unless it was corroborated by other testimony. He conceived that it had been so supported in the most material points. Ibbotson’s evidence must also be received with great caution. He did not think the evidence against Nosworthy was quite so strong as against Weston.

The Jury having retired for a short time, returned a verdict of Guilty against Thomas Kirkham, John Ashton, and John Bourke, on the first count of the indictment, viz - of stealing the goods therein named, and of putting James Hope in bodily fear; and against Charles Nosworthy and William Weston, guilty, on the second count, of feloniously receiving.

His Honor then passed sentence of death upon the whole of the prisoners. To Kirkham, Ashton, and Bourke, he did not hold out any hope of mercy; but he thought that the sentence of the other two might be commuted to transportation for life - they not having been actual participators in the outrage.

On receiving sentence, none of the prisoners except Nosworthy, seemed in the least touched with remorse. He, indeed, declared his innocence, but the rest of them uttered vehement execrations against Rice. Kirkham said, he had had that day plenty of law, but no justice; and Weston said, that the sooner he was hanged the better - for after the false swearing he had heard, he was sick of life.

The trial lasted nine hours.

Notes

[1] On 22 May 1835, the True Colonist published an editorial about false evidence. It claimed that four men were hanged on the word of Rice when he acted as an approver. (An approver was an accomplice who gave evidence for the crown.) The newspaper stated that Rice was promised a release from custody in return for his evidence, but that he had not been released. See also AOT MM, 71/8, pp. 206-22.