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

R. v. Hunter [1816] NSWKR 4; [1816] NSWSupC 4

murder - accessories to murder - capital punishment, dissection

Court of Criminal Jurisdiction
Wylde J.A., 1 November 1816
Source: Sydney Gazette, 2 November1816[1]

This day the Court met at 12 o'clock, and proceeded to the arraignment of Colin Hunter, Michael Ryan, and Thomas Dooley, for the wilful murder of John Miller, on the evening of the 30th of September last, by shooting him with a gun. The indictment contains several counts; the first of which charged Colin Hunter as principal in the murder, and the other two, as accessories, being present, aiding, and abetting the crime, together with one George Fuller, (who has admitted Evidence for the Crown). The second count, charging the three prisoners at the bar with burglarious entry into the house, made all equally guilty in the eye of the law, and left no shadow of difference in the dispensation of its penalties between the person who committed the fatal act, and those who were immediate accomplices. The admission of their being present, under such circumstances, amounted to a plea of guilty to the whole of the felonies charged in the indictment; and in elucidation of the fact, His Honor here went into a very ample explanation of the law on the subject, in the course of which he cited many important and interesting cases deduced from the ablest authorities. Under all the circumstances of the case, His Honor then observed, that the confession of the prisoners would have been sufficient to justify the Court in proceeding to judgement without examining any evidence; yet, as it was its wish that its proceedings should all times manifest an anxiety for the preservation of a most perfect regularity, he would waive the plea set up by the prisoners, he might possibly have deceived themselves in the presumption that an admission in part of the serious and heavy charges exhibited against them, went only to implicate them in a secondary degree; - and on the plea set up by the prisoner Hunter, that the murder was upon his part accidental, implying thereby that the firing off of the gun by which the deceased was killed was unintentional, His Honor observed, that the Court was under no necessity to enter into any discussion of what his intention might have been, as it was evident he had gone thither for the purpose of committing one felony, and had committed another of a more heinous nature. His plea was in fact to only tantamount to the admission of a homicide by misadventure; to constitute which a man must be doing a lawful act, and have no intention to harm or injure the person whom he accidentally kills; for if the act he was concerned in be not lawful, then the offence of course is murder: he should therefore call evidence to the facts, and proceed in the trial without regard to the plea they had severally set up.
Mrs. Jane Miller, widow of the deceased, deposed that her residence was at a farm called Bunker's Farm, about 4 miles distant from Sydney; that upon the evening of the 30th of September last, between seven and eight o'clock, when her husband was sitting at the fireside, with four children in the room, the family consisting of seven, the door was suddenly forced open, and four men rushed in upon them, nearly together, all of whom appeared to have their faces covered, that two of the intruders were armed with guns, one of which was fired off at her husband, who appeared to be rising from his seat as they entered, but fell at the instant the musket was discharged, and immediately expired; that as soon as her husband had fallen, one of the ruffians presented muskets at her, and demanded money; that they afterwards entered the bed room, and plundered the house of 3 or 4 pounds in money, and all the movables they could find, among which were their children's clothing, together with a small trunk, which latter article she found next morning in a place where the robbers must have left it, about 10 yards from the house.
George Fuller, King's evidence, being first seriously exhorted from the Bench to keep in mind the considerations of his being admitted a witness against the prisoners at the bar, deposed to his having formed a design with Colin Hunter to rob the house of John Miller, the deceased, and fixed upon the night of Saturday the 28th of September for the purpose, but changed their time to the night of the 30th; in the evening of which day they went to a farm called Redmond's farm, in their way to that of the deceased, and proposed to the prisoners Ryan and Dooley to accompany them, to which they both readily consented, and did accordingly accompany them, all the party having taken the precaution to cover their faces, as they might not be visible; that Colin Hunter had a fowling piece, and one of the others a musket; that the moon shone brightly, which obliged them to be cautious in approaching the house; into which Hunter at length entered by forcing open the door, at which instant they all rushed in, the explosion of a musket took place, and he saw the deceased lying on the floor; that he, the witness, immediately went out of the house, and shortly afterwards Colin Hunter went out to him, saying, "George, that murdering villain (meaning Dooley) has shot the man."
Dooley came out shortly after, and accused Hunter of the act of shooting; and upon examination of Hunter's piece, it appeared to have been that which had been discharged. Ryan continued in the house; into which they all returned, and proceeded to plunder. On their going in, the wife of the deceased exclaimed in an agony of surprise and horror, "Oh, heavens, you've murdered the father of my poor dear children!" The parties persisting in their original design of robbery, then commenced pillaging the house, and the witness took out the trunk which the prosecutrix had deposed to finding the next morning within 10 yards of the house.
[It is here proper to mention, that during the examination of Mrs Miller, the prisoner Ryan admitted his assisting in plundering the house after the perpetration of the murder, stating at the saying that he only saw 15 or 16 shillings in money taken away.]
The witness proceeding, stated that the remaining property was taken by them all to Redmond's farm, and there partly divided, and partly secreted in various places of concealment, some of which had assisted Hunter to conceal.
The testimony of the King's evidence was strongly corroborated by that of the constable to whom he had discovered the concealed property after his surrender; and Mrs Miller identified a watch, and many other articles, as making part of those of which her house had been robbed; - and from the testimony of Mr Lewin, Coroner, it appeared that the charge of a musket, consisting of two large slugs, had entered together under the breast of the deceased, and passing through the body, had struck the wall of the room, and thence rebounding, were afterwards found close to the place where the deceased had fallen.
The prisoners being now called on for their defence, only stated that they had no intention of murder when they went to the house of the deceased; and the Court, after a very short consultation returned a verdict, All Guilty.
The Judge Advocate, previous to passing Sentence of Death upon the prisoners, descanted at some length upon the general abomination of a crime of which they had been convicted, and dwelt with considerable emphasis upon the circumstances which had distinguished their case with the most marked atrocity. That they had proceeded to the house of the unfortunate man who had fallen a victim to their depravity, with intention of committing a robbery, they had each of them admitted, while they endeavoured at the same time to shelter themselves from the abhorrence which attends upon this blackest of crimes.

Source: Sydney Gazette, 9 November1816

On Monday morning last the three unhappy criminals who had been condemned to death on the preceding Friday for wilful murder of the late unfortunate John Miller, underwent their sentence at the usual place of execution, and after remaining an hour suspended, their bodies were given up for dissection. Their deportment on this melancholy occasion was becoming their conditions; Michael Ryan, on the way to the place of execution, read prayers to the unhappy companions of his destiny, both of whom joined in his essential duty with becoming further, and however ill they might have lived, yet in the close of their temporal existence they evinced a true and undisguised contrition, which will, it is most earnestly to be desired, obtained a remission of their offences in an everlasting state as a servant who delayeth his coming even unto the twelfth hour, may yet find grace and merciful acceptance. From their earthly destiny, it is no less to be desired, that many who from their criminal ways of life have deserved that the vengeance of the laws should equally overtake and crush them in a miserable career of sinfulness, may from the dreadful example set before their eyes take warning, ere it be too late, and by a timely renunciation of a life of crime, avoid the horrors of a mind overtaken by the certainty of a premature, and ignominious, and a frightful death. Surely, no thinking being who could for a moment turn his thoughts upon the condition of the condemned felon would persist in acts that were likely to bring equal calamity upon himself! Death is in itself appalling; and the very best of us look towards it with anxious doubting; and when from the common course of nature or events its approach is evident, then conscience will pre-dominate - will seize upon its ascendant power in the mind, and give an earnest, while yet we lived, of what we are to apprehend when dead. Unhappy is the man who suppresses the dictates of a conscience, the precious gift of his Creator, to admonish and direct him, and to warn him against evil: his life is a life of self disapprobation; and his death is a death of hopelessness; as a poisonous weed he grows only to be rooted up, and when he is gone his evil deeds are all of him that remain to memory.


[1] See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ776A, p. 277.

Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer be hanged in chains. If he did not order that, then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial. The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9. He argued that the purpose of criminal punishment was deterrence, not retribution. As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment. In England, this led to riots against the surgeons: Peter Linebaugh, "The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.

Published by the Division of Law, Macquarie University