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

R. v. Herring, Lahey and Lawless [1834] NSWSupC 60

convict escape - attempted murder - hulk

Supreme Court of New South Wales

Dowling J., 14 May 1834

Source: Sydney Gazette, 17 May 1834[ 1]

(Before Mr. Justice DOWLING, and a Jury of Civil


Richard Herring was indicted as principal, and John Lahey and Michael Lawless as accessaries, for maliciously presenting a loaded musket at Constable John Christie, on the Botany road, on the 26th of April, and snapping down the cock thereof, with intent to kill and murder him.  There were several other counts in the indictment varying the intent.

It appeared in evidence that the three prisoners at the bar, together with a man named Smith, and four others, were sent on shore from the hulk, where they they [sic] had been confined, to procure wood for the vessel, under the charge of the boatswain (Sims), from whom they effected their escape, and committed several depredations at the North Shore, and Parramatta and Botany roads.  Four constables, named Cunningham, Christie, Lawless, and Jones, were sent by the Police Magistrate, on the evening of the 26th of April last, in pursuit.  Having arrived within a few yards of the Botany bridge they came up with the prisoners, and the man, named Smith, whom they challenged.  Smith snapped his musket at Christie, which flashed in the pan, and Christie shot him dead on the spot.  The prisoners each endeavoured to shoot the constables, but owing to the wetness of the night their pieces would not go off.  Herring and Lahey, having fallen to the ground, on being rushed by Constable Cunningham, they were secured.  The prisoner, Lawless, ran away, closely pursued by Jones and Lawless: he turned twice round, and tired to shoot the constables, but his piece each time missed fire.  Jones shot at him while running, but without effect.  Lawless subsequently gave himself up to the Chief Constable.  All the fire arms in the prisoners, possession were loaded with powder and ball.  It appeared throughout the whole of the evidence that these misguided men were entirely led away by Smith: deluded by his promise of getting them out of the country, through the assistance of a brother he stated to be living on the sea coast, they were first tempted to abscond; and throughout the whole of their career of crime Smith only was the person who led them on to deeds of plunder.  Indeed it was most satisfactorily proved, by the witnesses for the prosecution, that on the prisoners shewing a reluctance, - in fact refusing, - to plunder the poor man of his hard earnings, their life was, on two occasions, threatened by this monster in the most determined manner.  All the parties robbed stated if it had not been for the interference of the prisoners at the bar Smith would have taken considerably more than he did.  Their object seemed to be merely to get wherewith to satisfy their cravings of hunger - his to goad them on to the deepest crimes, at which their hearts revolted. - Mr. Keck, of the hulk, gave them all excellent characters, and stated his conviction that, if it had not been for Smith, they would never have been in their now awful situation.

The jury found them Guilty, but recommended them strongly to mercy, on account of their previous good character, and their being led away by the deceased Smith.

His Honor, in passing the sentence of the law on them, remarked that the jury's recommendation should be laid before the Governor in Council; at the same time he felt it his duty to state he could not conscientiously second the recommendation.  Offences of the nature of which they had been convicted required the utmost penalty of the law to be strictly enforced for example, to deter others from falling into the same error.  He could not, nor did he think they ought for a moment to entertain the slightest hope in this world.  He implored them to make the best use of the short time allotted them to make their peace with an offended God, and to prepare themselves for that awful change which shortly awaited them.  Sentence of death was then passed upon the prisoners, ordering them for execution at such time and place as His Excellency the Governor should appoint.

The prisoners seemed to feel deeply their awful situation.[2 ]



[1 ] See also Australian, 16 May 1834.  For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3280, vol. 97, pp 49f and 102f.

On the previous day, the three prisoners were convicted of stealing from a dwelling house: Sydney Gazette, 17 May 1834.

[2 ] Herring, Lahey and Lawless were hanged on 5 June 1834: Australian, 6 June 1834.

Published by the Division of Law, Macquarie University