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

R. v. McGee, Laycock and Dawson [1816] NSWKR 1; [1816] NSWSupC 1

murder - capital punishment - evidence, approver

Court of Criminal Jurisdiction
Garling A.J.A., 2 February 1816
Source: Sydney Gazette, 3 February 1816[1]

On Friday Philip McGee, Henry Laycock, and Patrick Dawson were placed at the bar, and indicted for the wilful Murder of Mr Edward Pugh, a settler of Richmond, on the night of the 9th of January, 1815.
The chief witness on this melancholy trial was Andrew Callaghan, who had been necessarily admitted an approver for the Crown.
This witness stated, that on the night set forth he had accompanied the three prisoners at the bar to the house of the deceased, who was a very old and feeble man, with a design of robbing him of a quantity of dollars which he was reported to have had and which formed their chief inducement, they knowing also that he was in possession of a silver watch, and some other property; that on their arrival at the house, the prisoner Dawson it was agreed should remain without doors as a guard against surprise, while the witness and the other two approached and knocked at the door, which was shortly after opened by the deceased: who was immediately attacked by McGee with a waddy, and knocked down, without any effort to resist upon his part; and the blows were repeated by the same prisoner until it was certain the deceased was incapable of resistance or alarm: - McGee then through a blanket over the deceased, and they jointly proceeded to search the house for plunder; that by the light of the fire, near to which the deceased lay, he was observed to stir; upon which McGee was proceeding again to beat him, but was prevented by himself (the witness), who begged he would not murder him: - That McGee drew the bed from under the deceased, and ripping one of its seems, emptied out the contents: That the prisoner Laycock observing at this time that the deceased moved, struck him on the right shoulder with the butt of a musket, the stock of which was broken by the violence of the blow: - they then left the house, and on the division of their spoil, the bed tick made part of the share taken by McGee.- That in consequence of the dreadful circumstances of the murder and occasioning considerable alarm, the witness through a coat, which had been taken from the deceased, into the River, and also saw the prisoner Laycock bury a quart pot, which had likewise made part of the spoil; that McGee afterwards exchanged a jacket with one James Gibbons, servant to W. Cox, Esq and also exchanged with him (the witness) a counterpane for a pair of nankeen trowsers; which trowsers were found in Laycock's possession when apprehended, and proved to be the same.
Assistant Surgeon Mileham being now called, deposed to the death of the unfortunate man being in consequence of the violent treatment he had received upon the night stated in the indictment.
Mr Ainsley McGrath deposed, that the prisoner Dawson was his servant; and he conceived had had a knowledge of the deceased being possessed of a sum of money. The witness swore to a knife found by the side of the deceased the morning after the murder to be his property.
Joseph Maun, in whose service Laycock was at the time, deposed, that on the evening of the murder he saw Callaghan and Laycock in company, at which time they had a gun, which he supposed they intended going with to a neighbouring stockyard; that they returned to his house at midnight, and made tea for themselves; that Callaghan, a few days after, brought to his house at tin pot and canister, when witness, having some suspicion that they might have had a knowledge of the murder, desired that nothing of the kind should be brought to his house; he saw Callaghan altering a pair of nankeen trowsers, where he said belong to Laycock, and heard Callaghan say he had thrown a coat into the river.
John Miller deposed, that the jacket produced in Court very much resembled one that he had left at the house of the deceased shortly prior to the murder; and which had been found in possession of Callaghan.
Mrs Pentoney who had lived in the house with the deceased five years, and had left his habitation the very day twelvemonth upon the night of which the murder was committed, swore positively to the bed tick, which had been found in McGee's possession, and also to the nankeen trowsers that are found in possession of Laycock, as they were both of her own making.
Wm. Cox, Esq, Magistrate, was now sworn, and stated to the Court that on the first implication of McGee in this charge he went to his house at Richmond, and there found the bed tick stated by Callaghan to have been taken from the house of the deceased by McGee, and sworn by Mrs Pentoney to have been the property of the deceased. The trowsers sworn also to have been the property of the deceased were worn by Laycock when he was apprehended, and a jacket produced in Court, making part of the plunder, had been found in possession of Callaghan, who said he had it to altar.
Mr John Howe, Chief Constable at Windsor, deposed to his being present when Callaghan took from its concealment a pot, proved to have been part of the stolen property.
The evidence for the prosecution here closed, and the prisoners at the bar were called on for their defence; which went generally to a denial of the facts, and to prove that several articles found in their possession came through the channel of Callaghan, the Crown approver; in order to depreciate whose testimony, several witnesses were called, two of whom fell severely under the censure of the Court; and one of them was directed to be kept in custody for prevarication in his evidence.
McGee endeavoured to prove an alibi, in support of which George Coffer, servant to Mr Cox, of Clarendon, deposed in evidence, that on the night of the murder he supped in company with McGee, and went to bed at eight o'clock, the latter sitting up alone; which however did not in point of distance preclude the possibility of his being present at the murder; nor could it intend against the weight of evidence presumptive of his guilt.
The whole of the evidence being gone through the Court cleared between six and seven in the evening, for the purpose of considering their verdict; and resuming their seats after an absence of nearly an hour, all the prisoners were pronounced Guilty.
The JUDGE ADVOCATE, before he passed the lawful sentence of the Law, expatiated with peculiar energy on the extreme depravity that had manifested itself in the preparation of the horrible offence, of which they had been found guilty after a long, patient, an impartial investigation of the testimony that had been adduced, as well for them as against them. The crime of murder was in itself abominable; in all ages, and in all countries it had uniformly been punished with death, as the most heinous offence that man could possibly commit against his fellow creature; and in the present case, the learned Gentleman had most sensibly to regret that the crime was marked with a depravity that doubtless must preclude the hope of mercy to either of the prisoners then standing at the bar. It therefore became their last and only duty to supplicate that pardon from their offended Maker, which they had no hope to be extended to them on earth. Heinous was the crime for which they were doomed by human laws to suffer, and in proportion to the weight of their offences should be their solitude for their remission in the world to come. Having solemnly and pathetically admonished the unhappy men to lose no single moment of the short period that might be allowed to them for the duties of repentance, which he hoped would be sincere and unreserved, he proceeded to pronounce the sentence of the law, which condemned them to be executed on such day and place as His Excellency the GOVERNOR should be pleased to appoint, and their bodies afterwards delivered up to be dissected and anatomized.

Note

[1] 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.

Frederick Garling was acting Judge Advocate between the death of Bent J.A. and the arrival of Wylde J.A. While we are confident that he presided over this and the next trial, we cannot be certain.

The three prisoners were executed on 9 February 1816: The three prisoners were executed on 9 February 1816: K. Macnab, Database of Prisoners Sentenced to Death in New South Wales, 1788-1968, unpublished.

Published by the Division of Law, Macquarie University