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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Thomson, Downey and Fairweather [1841]

convict escape - robbery, armed - robbery from dwelling house - capital punishment

Supreme Court of Van Diemen's Land

Pedder C.J., 20 July 1841

Source: Hobart Town Advertiser, 23 July 1841[1]

Before His Honor the Chief Justice and a Jury of twelve

           

Three absconders. Thomson, Downey and Fairweather, were arraigned on a charge of having, on the 3rd instant, entered the dwelling house of Joseph Walker, shepherd to Mr. Ray, of the Macquarie River, and feloniously stole therefrom sundry articles.

            Thomas Walker was the first witness for the prosecution. - He stated that during the night in question, on awaking, he saw Fairweather standing near him with a gun levelled at his head, threatening to blow out his brains if he moved. He was then asked what rations and money were in the hut. On the reply that there were none, Thomson began to collect the few articles that were in the hut. The prisoners enquired how far it was to his master's house, and whether there was not some free shepherds huts nearer, as they wanted some warm clothing, and that they would have. Witness told them that Mr. Gilbert had a place up the river. The next question was whether he had many men there, and whether they were armed. They then warned Walker not to report the robbery till late the next morning, and he must mind not to say they were armed, for they would leave one behind to watch his movements, and if he attempted to leave the hut they would return and blow his brains out. Witness said there was no fear of his doing so. Thompson took from off a nail near the bedside a pair of boots, a waistcoat, ┬Żlb of shot, and a pair of braces. Downy took a razor and a soap box. The prisoners remained in the hut about an hour. As soon as they left witness got out of bed, and looking through a hole in the thatch saw them go into a scrub a short distance off, where they remained some time. They then proceeded down the marsh towards the river. Witness immediately saddled his mare, and rode to a constable's hut about half a mile off, where he gave information of the circumstance. The constable, with an assigned servant and witness went towards Mr. Ray's house. On approaching they heard the dogs barking, and voices outside. The prisoners were standing at the door, and in answer to the question from Mr. Ray, "who was there?" said "some friends who had lost their way going to Campbell Town, and wanted refreshment." - Mr. Ray told them to go over to the hut where they would find refreshments. Walker then saw one of the men go to the hut (distant about ten yards from the house), but he immediately returned, saying that as there was no fire in the hut they must go into the house. Mr. Ray answered, that "he was a poor man and had nothing to lose." The prisoners assured him "they would not hurt his pocket much.:" Mr. Ray warned them that if they were determined to enter, some of them would be shot as he was well armed, but they replied "we also are well armed, and can afford to lose one man out of five." "Well then," said Mr. Ray, "if you will come in, wait till the females are dressed." Just as they were proceeding to rush the door, Walker and his two companions pounced upon them; on seeing which one of the prisoners exclaimed "here come three men and they are all armed." Another answered, "let us have a shy for it" The constable told them to drop their arms and surrender. Downy levelled his piece at the constable, who also presented his. Fairweather and Longstaff did the same, and witness levelled his gun at Thomson, who was unarmed. The constable told Downy that if he did not immediately surrender he would shoot him, at the same time advancing a step or two. - Downy said, "if you step one inch further I'll blow a hole through you." Thomson advised Fairweather to drop his piece as it might save their necks. The constable placing the muzzle of his piece close to Downy's head, said if he refused to surrender he would blow the roof of his head off. Downy immediately dropped his gun, when the constable putting them all together handcuffed them. Witness saw a waistcoat of his taken from the person of Downy; it was produced and identified, as also a pair of boots, a shaving box, and a pair of braces. The boots were taken from Thomson's feet, on the Saturday, at Oatlands. A cotton handkerchief was shown which witness said resembled one he had lost. About an hour and a half had elapsed between the time witness saw the prisoners at his hut, and when he next found them at Mr. Ray's. The two houses are distant about a mile and a half.

            Cross-examined by Fairweather. - As soon as you entered my hut you threatened to blow out my brains, but you added, that if I would be still you would not hurt me.

            Cross-examined by Thomson. - I know the boots by a hole made to insert a nail by way of a spur, as the mare he rode being heavy in foal, was rather dull. I know the waistcoat by a particular button I sewed on myself, and the braces by being mended with thread wire.

            Here Thomson asked his Honor whether it was proper for the witnesses to remain in court.

            His Honor replied that they might do so, without they were required to go out.

            Thomson wished they might be ordered out, which was done.

            Joseph Cresswell, constable in the Oatlands police was next called. His testimony corroborated that of the former witness, with reference to the capture of the men at Mr. Ray's house. He identified two fowling pieces (produced) as being those he took from two of the prisoners. There were four fingers of charge in each, and on drawing the contents, found a number of large buck shot.

When his Honor asked Downey whether he would ask the witness any questions, the latter objected to the evidence, saying that he (the constable) had asked him to plead guilty, as it would cause him to obtain a free pardon.

Archibald Longstaff was called, and placed in the witness box, but the Attorney-General said he would not examine him, since what he had seen was exactly the same as that stated by the two other witnesses, whose testimony agreed so completely, that it would be useless to enter further into the case for the prosecution.

            The prisoners would not urge anything in their defence.

After a short absence, the jury returned a verdict of guilty against the three prisoners, who were immediately sentenced to death, and advised to dismiss all hopes of a respite.

Pedder C.J., 20 July 1841

Source: The Hobart Town Courier and Van Diemens's Land Gazette, 23 July 8141

           Before His Honor the Chief Justice and a Civil Jury of twelve

            William Fareweather, John Thompson and Thomas Downer, belonging to theJericho chain gang, were capitally charged, under the Act of Council, with being illegally at large, with arms in their possession, and with robbing a hut belonging to Mr. Macmichael, and occupied by Joseph Walker, near Oatlands, on the 3rd July last.

            Verdict. - Guilty, against all the prisoners.

            His Honor, in sentencing them, could hold out no hopes of any mercy whatever to either of the prisoners. The distant settlers, in whose neighbourhood chain gangs were worked, could not be protected if persons were allowed to go about the country armed, for the purpose of committing acts of violence and bloodshed. By the confession of one of them to the constable who apprehended them, it appeared that they had already been punished in this colony, as they had absconded from a chain gang. Sentence was then passed upon each of the prisoners in the usual form, and they left the dock apparently unconcerned at their awful situation.

Notes

[1] According to AOTSC 41/5, p. 79 the defendants were John Thompson, Thomas Dooner, and William Fairweather, all armed with offensive weapons.  By order of the Colonial Secretary Fairweather and Thompson were sent to Port Arthur for ten years or 'any other settlement which may be established for the reception of the worst class of convicts'.  Dooner  was executed.  See also AOT GO44/1, Judge's Report, 26 July 1841.

 

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