[burglary, ``breaking" - bushranging - Goulburn - stealing from dwelling house - stealing in dwelling house - evidence - ``bush lawyer"]

R. v. Ryan, Eyre and Malowney

Supreme Court of New South Wales

Dowling A.C.J., 2 May 1836

Source: Sydney Herald, 9 May 1836[1]

 

Monday, May 2. - Before His Honor Chief Justice Dowling, and a Military Jury.

Thomas Ryan, James Hare, and Michael Malowney were indicted for a burglary in the dwelling-house of Richard Julius Hamlyn, at Goulburn on the 12th of February last.  The information contained three counts, varying the charges.

Richard Julian Hamlyn, surgeon, at Goulburn Plains, deposed - On the 12th of last February, I was sitting in my parlour between nine and ten o'clock; the prisoner, Thomas Ryan, knocked at my door, and said some one wanted me; I went to the door and saw Hare, who was attached to the Hospital, with a gun on his hand, which he presented, and said, if I made the least noise he would blow my brains out; I immediately rushed on Hare, to wrest the gun from him, and had nearly succeeded, when I received a very severe stab in the back, I think by a bayonet, and given by Malowney who was in the verandah; after I was stabbed I struggled very hard, and was knocked down by a blow on the head given by Hare, in the verandah.  They did not break into the parlour; I left the door open.

The Acting Chief Justice. - Gentlemen, you must acquit these men on this charge, namely, a burglary, which must be supported by a breaking or entering forcibly.  This happens to be only a house robbery, which appears by Dr. Hamlyn's evidence that the door was left open.

The Jury immediately acquitted the prisoners on this indictment.

The prisoners were again indicted for stealing in the dwelling house of Richard Julian Hamlyn, and putting the said Richard Julian Hamlyn in bodily fear, at Goulburn on the 12th of February last.

Dr. Hamlyn gave the same evidence as in the foregoing indictment; and added, after receiving the blow on the head from Hare, which rendered me senseless, I retreated from the verandah to my parlour, where there was a candle, leaving the door open.  I called for Ryan, who resides at the back of the house in a hut, but he did not answer or come to my assistance; I had found great difficulty before this in keeping Hare from my kitchen, and I gave Ryan repeated directions not to allow any person into the kitchen; Ryan and the other two prisoners were particularly intimate; when I returned to the parlour, Hare and Malowney were there before me, and I caught up a pistol that was on the table, and snapped it at one of the prisoners, but it missed fire, and I do not recollect anything after; my watch (a silver one), chain, and seals, were lying on the table, and when I came to myself I missed them from the table.  Some other property, which I believed to be mine, and my watch, were shown to me at the police office after.  I consider it was impossible for Ryan not to have seen Hare with the gun, and not to have heard my cries for assistance.  The watch and seals now produced are my property, and are those which were taken from my table on that night.

The prisoners cross examined Dr. Hamlyn at some length.  Hare, who is what is generally termed a ``bush lawyer," was very shrewd, and took advantage of every point of evidence.  In his cross-examination, to one of the questions, Dr. H. stated that he received four stabs in the back.

Robert Cussen, a district constable at Goulburn - The things now produced were delivered into my charge at the police office, Goulburn, and have been in my charge ever since.

Dr. Hamlyn re-called. - The great coat now produced I had on on the night I was stabbed.  I had jackets, similar to the one produced, in my stores; but I cannot swear positively to the one now shown me.  I can also swear that the gun produced is the property of Dr. Hartnell, the prisoner Hare's master; it is the sort of gun presented at me by Hare.  The trousers and shirt (both covered with blood) are those I had on the night I was stabbed.

George Hankison, overseer of Goulburn Hospital, heard cries of murder proceeding from the direction of Dr. Hamlyn's house; got up, and taking two men with him, went to Dr. Hartnell's house, where the prisoners Hare and Malowney stopped, and found they were not there; he proceeded towards Dr. Hamlyn's house, and met Hare, who, upon being asked if he had heard the cry of murder, replied yes, that it was Dr. Hamlyn and his servant (the prisoner Ryan) quarrelling, but that they had made it up; witness asked where Malowney was, and Hare said he had gone down the road to quell a quarrel, and he began calling him by name, although desired not to do so; and shortly after Malowney came up, and stated that he had been down the road to quell a riot, which, on enquiry, was found not to have taken place.  Witness heard the ticking of a watch on Malowney, and asked him where he got the watch he heard, to which Malowney replied that he had no watch; witness then said ``if you have not, allow me to search you," but he drew back, and would not, and pushed witness away when he attempted to seize him; Malowney then absconded.  Witness saddled his horse and rode to Captain Alman's; but that gentleman being out, he returned, and saw Dr. Hamlyn standing in his yard with a pistol in his hand, and covered with blood; his neck was swollen as large as his head; he appeared to be quite insensible, and was calling for Malowney.  Witness and another man named Williams led Dr. Hamlyn into his house, where he saw a pillow covered with blood, also a large pool of blood near the house; on seeing which he left Williams in charge of Dr. Hamlyn's house, rode to Captain Alman's, and was Accompanied back to Dr. Hamlyn's by Mr. Francis Alman.  On his way back, the prisoner Hare met him, and said that his hut had been broken open, and a gun and other things carried off; also a bayonet which witness had seen in Hare's hut some time before, and which he said he used for roasting meat.  When witness and Mr. Francis Alman returned to Dr. Hamlyn, the Dr. told them that Hare, Malowney, and his own scoundrel (meaning Ryan), were the parties who had committed the act; and witness saw the gun, without a stock, on Dr. Hamlyn's table, and the bayonet on the parlour floor, with hair and blood on it.  There was a hat found at Dr. Hamlyn's house which Hare claimed as his, and when first met by the witness he had none on; a ribbon was found near the house which Hare stated to belong to Malowney's hat.  Witness saw Hare on the evening of the night of the robbery wearing a pair of white sheep-skin slippers, and on the following morning he saw the slippers in Dr. Hartnell's kitchen, with several spots of fresh blood on them.

A witness named McCatterick was called to corroborate Hankison's testimony.

Mr. Francis Alman corroborated the witness Hankison as to the state of Dr. Hamlyn on the night he was attacked, and as to the finding and capturing Hare and Ryan.

Mr. G. Jilks apprehended Malowney in Parramatta, from an advertisement describing him, and offering a reward of 50 for his apprehension.

Dr. Gibson saw Dr. Hamlyn on the night he was attacked, and it required his utmost exertion to save his life.  In searching the premises he found Dr. H.'s silver watch which had been taken from the table, concealed in the prisoner Ryan's bed, and also a check shirt in the kitchen, marked with blood, and which Ryan acknowledged to be his, but accounted for the blood by stating that his nose had bled on it.  The marks did not appear to be those that bleeding from the nose would make; but rather as if bloody hands had been wiped on it; there was also some blood on Ryan's trousers, and a blow on his temple apparently given by a blunt instrument.  Witness did not think that Dr. Hamlyn would have survived to give his deposition, and, therefore, had the prisoners before him, when he pointed to Hare and Ryan as the parties who had committed the act.

Peter Flynn, W. R. Williams, David Newton, and Henry Thetford, witnesses for the prosecution, were called to allow the prisoners to examine them if they chose.

This was the case for the prosecution.

Ryan, in his defence, stated that he went up three times to the hut where the prisoners Hare and Malowney stopped, and drank three glasses of rum, after which he went to sleep; but Hare and Malowney denied his ever having been there that night.

Ryan called on Dr. Hamlyn, his master, for a character, who stated that he had never committed any offence for which he should punish him; there had once been a charge of robbery against him, for which he was put in prison, but no prosecutor appearing, he was discharged.

His Honor summed up and left the case with the Jury, who retired about a quarter of an hour, and found the three prisoners guilty.

His Honor remarked on the clearness of the evidence against the prisoners, establishing a wanton and cruel outrage on a gentleman who had never injured them; and he particularly dwelt on the ingratitude and brutality of the prisoner Ryan, who had been well treated by his master, and who repaid him with cold treachery, His Honor then passed the sentence of death on the prisoners, who all evinced a cowardly fear at the sentence, which is the usual demonstration of a brutal and blood thirsty character.

 

Notes

[1] See also Australian, 6 May 1836; Sydney Gazette, 5 May 1836 (both newspapers calling the defendants Ryan, Eyre and Maloney).