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

R. v. Smith and others [1817] NSWKR 3; [1817] NSWSupC 3

murder - capital punishment, dissection - Van Diemen's Land

Court of Criminal Jurisdiction
Wylde J.A., 30 September 1817
Source: Sydney Gazette, 4 October 1817 [1]

           Trial for Murder. This day the Court opened at ten, and proceeded to the trial of Samuel Smith, a prisoner; Thomas James, a private of the 46th, then on duty at George Town, Thomas Smith, and Edward Harwood, both prisoners, all late of Port Dalrymple, for the wilful murder of John Randall, on the evening of the 3d of July last, at George Town (a settlement lately formed 50 miles distant from Launceston); by the infliction of sundry cuts and bruises, and other mortal wounds on and about the head. By other counts in the indictment the prisoner Samuel Smith stood charged as principal, and the three other prisoners at the bar with having aided and abetted, assisted and maintained him, in end after the perpetration of the crime.

           By the testimony of William Crowther it appeared, that the deceased was chief constable at the settlement of George Town; and on the evening of the 3d of July (that also of the murder) had proceeded from the house in which witnessed lived, towards the dwellings occupied by the government boats' crews, to give orders for the hauling up and proper securing of the Government boats; from which period he never afterwards saw him alive;- that the prisoners at the bar, Thomas James and Thomas Smith, arrived at the same house after the deceased had left it, and demanding and receiving a pint of rum in his name, afterwards called for and drank another pint and a half after which they became riotous; and the prisoner James inveighed against all constables because more rum was refused them. Smith also said many horrible imprecations against the constables, saying he had suffered enough by them.

           A constable of the name of Barnet was knocked down by James, and treated with such violence as to threaten danger to his life, but for the interference of the witness, who also threatened to be killed, and the candle was extinguished- both these prisoners behaving on the occasion with extraordinary violence: however, Barnet was saved, and the witness escape personal injury. The deceased not returning to his home that night, gave considerable alarm; and the next day at noon the witness was among the number who beheld the body of the murdered man shortly after it had been found. It had been evidently underwater; a large stone was fastened to the right arm by a piece of rope of 6 yarns, which had been unstranded, and appeared as so many distinct yards:- a wound on the back of the head extended latitudinally from the left to the right ear, near to which ear were the marks of two distinct wounds, which had separated for carthilage above and below; and on the concave of the forehead, at the commencement of the nasal projection, a violent blow appeared to have been inflicted, which had blackened and frightfully discoloured the upper part of the visage. A shoe found near the hut he swore to be one of the shoes worn by the deceased on the day he was killed; and a handkerchief, afterwards picked up in a line leading towards the waterside, he also considered, from its pattern, to belong to the deceased.

           Charles Macdonald, a prisoner fourteen years of age, sworn. He was servant to Mr. Leith, Superintendent of the Settlement of George Town. In the evening of the 3d he went to Mr. Leith's orders to direct the prisoner Samuel Smith (the coxswain) to call hands and get the boats properly secured for the night; to which the other replied that he had no hands to get boats up, and as for Tommy Randall, meaning the deceased, if he should come he would take a stick and beat him out of the house; which expressions he several times repeated. They went together to the boats' crew hut, where the three other prisoners at the bar then were, and they all seemed rather intoxicated. He had once before conveyed Mr. Leith's orders to the coxswain in the course of the same evening; and on the latter occasion, when witness was in the hut with all the four prisoners, the deceased entered, and in his capacity of chief constable civilly required that they would see and get the boats up, as he should be compelled to report such as refused to comply with the order; immediately whereupon Samuel Smith seized upon an axe, and raising himself on a log of wood, striking him a violent blow on the forehead: the deceased fell on his back, and witness, fearing that he might share a similar treatment, ran out of the house towards that of his master; and when at a short distance from the hut, saw the deceased run out towards his own habitation, but fell on his face after preceding 9 or 10 yards, exclaiming, "oh, dear! oh, dear!" which was also in the direction of Filcham's well. Witness saw the prisoner James follow the deceased, and lay his hand on him after he had fallen, but not with any appearance of violence; another of the prisoners at the bar followed James, but witness could not say which it was. The witness then went home, and did not report what had happened until after the body of the deceased had been found the day following. He had no doubt whatever that all the persons present notice the blow given in the hut by Samuel Smith; and which Harwood fruitlessly expressed a wish to have prevented, as he exclaimed at the instant, "oh, don't hit the man; don't hit the man!" The next morning the settlement was filled with surprise and consternation at the total disappearance of the deceased; and the witness meeting with Samuel Smith, was by him desired not to mention the affair of the blow he had given him, for he did not know what could have become of him.

           Charles Clarke, a boy of 13, also a prisoner under Mr Leight's orders, sworn. He slept at the boats' crew hut, which contained two rooms below, and a loft in which he slept, over the room called the parlour. There had been much drinking among the hands of the settlement during the 3d of July, and he had been prevailed on to drink in the fore part of the day at another house, but having slipped away the effects of his intemperance, returned to his own home at dusk and went to bed; saw all the prisoners at the fire in the entrance room through which he passed, and between 8 and 9 was called down to supper by the prisoners, who appeared to have been drinking rather freely; but he at that time drank nothing: he went to bed again, and falling asleep, was awakened about two, as he concluded from the cocks crowing usually at that hour, by the noise of persons getting in at the parlour window; which attracting his more minute attention, he heard the prisoner Harwood audibly say, "did you tie a rope about his neck?" but heard no reply, nor any further talking, not so much as a whisper. He thought the circumstance strange, and conjectured that something was amiss, but did not offer to rise. About 9 in the morning he went down to breakfast, and found all the prisoners together in the fire room. He was afraid of making any enquiry concerning the foregoing circumstance; but taking up an axe to cut up a part of a kangaroo, he perceived the blade to be much stained with blood; and laying it down again, took another up. He had already heard of the unaccountable absence of the deceased, and this latter observation, added to what he had before heard, filled his mind with doubt and apprehension. Having divided the meat with the second axe, one of the party, who it would appear had observed him lay aside the first, desired him to stay, should he be questioned, that he had cut the kangaroo with that axe, in order, doubtless, that the stains of blood might have been so accounted for.

           Being in this part of his evidence interrogated by the Court whether he had sufficiently noticed the stained axe to know it again at this distance of time, the youthful witness confidently replied that he most assuredly should, from some remarkable notches on the edge. Four axes were in turn shewn to him, and each in turn rejected; but upon production of the fifth, he pronounced that to be the one, as was identically the case. Near to his bed, in the loft he occupied, he had all along until that morning noticed a piece of untwisted rope, the yarns having been unravelled. In the course of the forenoon (4th of July) Mr Leith entered the hut, and examined the stained axe, which was immediately claimed by Harwood as belonging to him; Mr Leith took it away with him; and shortly after his retiring several constables entered, and on search found and took away the rope also which the witness had described.

           Mr William Leith, sworn. He performed the duties of Inspector of Public Works and Principal Superintendent of Convicts at the recent establishment of George Town, at which 50 prisoners were stationed under a military guard of 12 men, of which number was the prisoner James. Samuel Smith was coxswain of one boat, and Thomas Smith and Edward Harwood were of the boats crew. Samuel Smith did not live in the same hut with the others, but in one nearly adjacent. Mr Leith had described the incident of the morning on which the deceased was missing. No intelligence had reached him to awaken probable conjecture; but he was nevertheless, disposed to the belief that some circumstances fatal to him must have occurred. He was watchful of every movement around him, and directed a diligent search to be made about the settlement and shore, in the possible supposition that some discovery of moment might take place, and at all events from a consciousness that in so doing he was acquitting himself of a necessary duty. He had seen the deceased in the course of the afternoon of the 3d, and had afterwards communicated to him, by the witness Charles Macdonald, his instructions to have the boats that you would buy their crews; he knew him to be a diligent and attentive man in his situation, and his sudden absence had therefore produced the strongest of sensations in his mind. The finding of the dead body was reported to him at about 12 at noon of the 4th, and he immediately proceeded to the spot. It was extended on a plane at a lower extremity of a shelving rock, where it had evidently been abandoned by the tide; one foot was without a shoe, and there was no handkerchief on the neck; a large stone was fastened to the arm by a piece of unstranded rope, consisting of six yarns; there appeared to have been two wounds inflicted on the head; the right ear was separated in two places; on the neck appeared several incisions, apparently made by some blunt knife or similar instrument; and the nose and forehead exhibited a ghastly appearance of contusion. Then it was that the witness Macdonald communicated to him the assault upon the deceased on the previous evening; which induced Mr Leith to go in immediate quest of the axe, though from his general bad opinion of the people who inhabited the hut, theirs would have been the first point to which he would have directed his enquiry. On taking up the axe, which retained its marks of blood, it was owned by Harwood, who was eating at the time, and approached it with his knife in his hand, though witness could not declare that his gesture was menacing: however he was himself upon his guard, and took the axe away. The mention made of the rope by the younger witness, Clarke, corresponding with the description of rope which bound the stone to the arm of the deceased, Mr Leith sent Constable shortly after to the hut, and there a piece of rope was found of the same quality, it being unstranded, and containing six yarns; and both the fragments being sent up under seal of the Coroner, were exhibited and sworn to the same in identity, as they were specifically in appearance, which left no doubt of the one having been a part of the other. The four prisoners at the bar were at this time in custody, and were with the dead body and witnesses removed to Launceston, to await the enquiry of the Inquest whose verdict had sent the prisoners to the bar of this Honorable Court. After several days detention at Launceston, Mr Leith returned to George Town, and proceeding in search of further testimonials with which the recent examinations had acquainted him, directed his attention towards the spot on which the deceased fell, on his running out of the hut; and upon the 9th, to his great surprise, found there a pile of saplings which were newly cut, beneath which the absent shoe of the deceased was found to have been concealed. About 20 yards further from the hut, and in a direction from the place where the shoe was found, extending in a line towards the banks of the river (Tamur) whereat the body had been discovered, was found also a handkerchief, which several witnesses had on its production declared to entirely correspond in appearance with that worn by the deceased on the day of the murder; about this spot a quantity of blood was visible, as was also the impression of a man's head and body on the sand and grass, the head directed towards the river, and the feet towards the hut. Mr Leith further deposed, that in the forenoon of the 4th he observed a stain of blood on the hinder part of Samuel Smith's trousers, a little above the ankle.

           Thomas Kenp, Constable at George Town, sworn. After corroborating such of the foregoing facts as had fallen under his personal observation, the witness stated in addition, that upon the night of the 3d, at 9 o'clock, being at his own home, Thomas Harwood, whose voice he knew well, knocked at the door, and affecting the voice of the deceased Thomas Randall, seemed desirous of admission. On enquiry who he was, he answered "Tommy Randall," but that the deception being evident, he was then called on by his own proper name, and replied in a voice no longer feigned, but declining a wish of admittance, walked away. Thomas Tilmouse and James Lightfoot were in the house with witness at the time, as they all lived together. A few minutes after this, the barking of a dog was heard, and they all went out to examine the cause: when the witness observing a man near the fence, detained and found him to be Harwood; who demanded what the witness intended doing with him? The other informed him that he should give him up to Randall, the Chief Constable; and was quickly answered by Harwood that "Tommy Randall was not at home, and he would be dead if he would be at home that night." Harwood was immediately joined by the three other prisoners at the bar, one of whom, James wanted to fight the witness, but which Harwood interfering and preventing, he was permitted to go away.

           James Lightfoot, Constable, corroborated such part of the previous evidence as had fallen under his knowledge, and described the place where the body was discovered to be about 300 yards from that where the handkerchief was found. He was in the house with Kemp who Harwood had ineffectually feigned the voice of the deceased, and afterwards declared himself; he had also gone out on the barking of the dog, and found Harwood, who had previously dropped a bundle under detention by Kemp. Some place had been robbed that night. He spoke also to the three other prisoners joining Harwood, and the determination shewn by James to fight the witness Kemp, which had however been prevented.

           Jacob Mountgarrett, Esq, Colonial Surgeon at the Settlement of Launceston, sworn. This Gentleman was called on to inspect the body on the 6th of July, during the Inquest, and professionally described the wounds that had been inflicted on the head of the deceased. The blow upon the lower part of the forehead had been given with such violence as to fracture and reduce to splinters the os frontalis, and had occasioned so violent a concussion of the brain as must have produced death, though not perhaps immediately; the deceased might have survived that injury for several days.

           Questioned by the Court. Do you consider, Sir, that after receiving so violent an injury, the deceased could have left the house, and run eight or ten yards? Ans. Most certainly; he might have run so many yards, whereas it is by no means probable that he would have been able to walk steadily. The blow had been evidently inflicted with some weighty instrument, as the contusion was altogether central, and was by no means likely to have been occasioned by any other than a weighty instrument. There were several slight incisions about the neck, none of which could be considered of mortal tendency; but the wounds on the back of the head could not possibly fail of producing instantaneous death.

           He terminated the examinations for the prosecution; and the prisoners being called on for their defence, severally declared their innocence, and called no witness.

           The Judge Advocate and Members of the Honorable Court now retired to consider of their verdict; and after an absence of nearly 3 hours, resumed their seats.

           His Honor the Judge Advocate, in a long and elaborate address to the prisoners, reverted to the various points of evidence which most materially affected the case of each one severally, or of the whole conjointly.- It had become no less the arduous than the painful duty of Court, from the obligation of conscience, to determine on the fate of four persons, and the circumstances of a very complicated nature; inasmuch as that it was possible the crime for which they had been called to answer might have been committed by one person only; while from some of the circumstances that attended it, it was more probable that two at lease had been concerned in its perpetration; and it was also possible that all had been assistant to it; though the presumption of actual guilt had appeared to the Court, after a patient and delicate consideration of the whole of the circumstances connected with the melancholy transaction, to prevail more against two than against any other number. One of these persons there arose no difficulty in ascertaining; for it had been clearly established that the deceased had received from the hand of the prisoner Samuel Smith a contusion on the forehead which must of itself have occasioned death, if no other wound had been inflicted; but who his immediate associate in the subsequent transactions of that dreadful evening might have been, it was impossible for the Court to determine; that secret remained only with themselves, and with that Being from whose all searching eye the crimes of men can never be concealed. Without longer holding in a painful condition of suspense the minds of those who might not have been accessory to the killing, His Honor here thought proper to pronounce the Verdict Guilty against Samuel Smith only; the other three Acquitted.

           His Honor then proceeded to observe, that although a verdict of acquittal had been returned in favour of three of the prisoners at the bar, yet it could not be considered that they were all in ignorance of the deceased having been foully made away with, even before the body had been found; they were all present when the first fatal blow had been given by their unhappy companion: but it was not in evidence that they were either of them present with any other blow was given, and that their presence was not sufficient to constitute a charge of being accessory either before or to the act of murder; they must not only have been present, aiding, abetting, or counselling the principle in the commission of the crime: which one among them had by his expressions shewn a willingness to have prevented. The only certain evidence was against Samuel Smith, and him alone; and no instrument had been produced that the only weighty instrument which he had in the first instance used against the person of the deceased; nor could it be doubted, that the same ill will which had instigated him to the first act of violence, might have further instigated him to follow up his bloody purpose. Another of the parties had used language with respect to the deceased, at a time when he was not present, which seemed to imply an ill will towards him; but these were loose and vague expressions, which were not followed by any violence from the party by whom uttered, and were therefore of no weight in the present solemn investigation. The criminal Samuel Smith, had also used expressions representing the deceased; from which, when connected with the assault, here arose sufficient proof of premeditated violence and of a malice expressed, though the killing without provocation would have constituted an offence of equal enormity, as proceeding from a malice implied; and if any consideration could be urged to add to that enormity, it would be found in the relative situation of the deceased and his murderer. The one was known to be a public officer, requiring of the other an obedience to the commands of his superior; and was discharging the duties of a public trust at the moment when the hands of the assassin was upreared, to sink him to the grave. The conveying of the body in the direction denoted by the shoe and handkerchief, the Court were also at a loss to account for, as it was not probable that one person could have easily effected it; and if assisted, it was impossible for the Court to determine, from the evidence, by whom such assistance had been rendered. It had also appeared that they were together at ten at night; evening a disposition to riot, and always ready to assist and protect each other; the quality of the rope fastening the stone to the arm of the deceased had proved exactly similar to that afterwards found in the hut of the prisoners; yet if one of the fragments had been actually cut that night from the other, still this night have been the act of one only, and there was no evidence to the contrary.

           The testimony of Clarke, the younger witness, which related to an expression he said he had overheard when awakened by a noise of persons getting in at the parlour window, the Court had not inclined to attend to. [On this part of the evidence it must be remarked, that as all the prisoners at the bar had free access by the door, there could be no occasion for their entering at the window. The words he declared to have been mentioned loud enough to be heard by him were, "did you tie a rope about his neck?" to which no answer followed, nor a single whisper more; and although the witness declared the voice he heard to be that of Harwood, yet he could not ascertain which of the persons it was who at 9 in the morning desired him to state, if question, that he had the kangaroo with the stained axe. These were circumstances both of equal weight; and yet the recollection of the witness did not apply to the matter in which he might have been certain, whereas it did apply to that of the voice, in which he might have been deceived. These disagreements, though by no means tending to impeach the intentions of the youthful witness, were nevertheless such as to render necessary that his testimony should be received with every caution upon an investigation of such vital importance to the four persons at the bar.]

           His Honor proceeded. Under all the circumstances, therefore, that had been made known to the Court, it was evident that against one person only the charge had been established; for with respect to any other, whatever doubts may have arisen from the deportment of the whole upon the night of the 3d of July, yet all was uncertainty, and where doubt was admissible, the benign maxims of the British law required that it should be thrown into the scale of mercy, and operate favourably to the persons under trial. As far as respected the prisoner whose guilt had been declared, the very nature of the weapon with which he had effected his sanguinary purpose was of sufficient evidence that his design was nothing short of murder; and had his violence proceeded from a sudden cause of irritation, and not from personal malice and intention to kill, he would have used some lighter weapon, and have been at this time in a condition very different to that in which his crimes had placed him.

           The acquitted persons were now directed to be taken from the bar; and His Honor, addressing himself to Samuel Smith in a pathetic strain of admonition, called his attention to his awful and unhappy condition. The offence of which he had been convicted was of a description by far too heinous to permit a hope of clemency in this life; it was the awful crime of murder, which in all ages, and by all human institutions, had been branded with infamy and abhorrence; and as far as this crime had in his fatal example admitted of aggravation, that aggravation had been added by his perfect knowledge of the unhappy victim of his atrocity being a public servant in the performance of his duty at the instant of his barbarous assassination. Obedience had been his (the criminal's) entire duty, nor was the task required of him fatiguing, or angrily enjoined; on the contrary, no colour had been given for the slightest irritability of temper, even admitting for a moment that such could have been received in extenuation of so gross a violation of public order. The unfortunate man had merely in the course of duty communicated to him the orders of his superior, and was himself responsible for their being carried into effect; his language was that of expostulation and intreaty; he had no suspicion of the violence intended him; but, basely surprised when of his guard, had fallen prostrate beneath the arm of unrelenting treachery and remorseless cruelty. The incident that had occupied him upon that fatal evening after the first violence, he was himself the best acquainted with; but as the aggression had been proved against him, and him alone, the presumption naturally followed that he was the most likely among the number to complete the catastrophe he had set out upon. The only judgment that could be safely formed by the Court was against himself, and only him. It would be well for the persons who had been the companions of his crimes, were they know to include their views intently upon him, and timely reflecting upon the doleful change of his condition, thereby profit by the melancholy warning set before them, and avoid hereafter the dissipation that too frequently pervades throughout the labouring orders in these settlements. With him, all soon would be at an end in this life; and it was solemnly recorded, that whoso sheddeth man's blood, by man shall his blood be shed. With an eloquent and persuasive exhortation to prayer and repentance, the Judge Advocate concluded his admonition; and thence proceeded to the annunciation of the awful sentence; which doomed the criminal to suffer death at such a time and place as His Excellency the Governor should think proper to direct, the body to be afterwards given for dissection.

Note

[1] At this time, Van Diemen's Land was still part of New South Wales and subject to its superior courts (the Court of Criminal Jurisdiction and the Supreme Court). The island had its own magistrates' courts as well as a Lieutenant Governor's Court for small civil matters, administered by the Van Diemen's Land Deputy Judge Advocate. Serious criminal and civil matters had to be heard in Sydney, or litigants had to wait for visits from the Sydney judges to the island.

Governor Macquarie declared in 1816 that Van Diemen's Land convicts should be tried by local magistrates in all cases except murder. They may not have received very careful attention to their legal rights, but this compromise meant that most convicts were not subject to capital punishment for the crimes they had committed in Van Diemen's Land.

The position was different for free persons in Van Diemen's Land who were charged with felony. Well connected free people were granted their liberty on entering into a bond not to offend again, and so escaped punishment altogether. Other free people were sent to Sydney for trial, and thus were subject to capital punishment for offences such as sheep stealing. As West stated (cited by Castles in Australian Legal History at p. 52), "sheep stealing and crimes against the person, committed by prisoners, were punished by flogging, and removal to a more penal station; and thus, while a prisoner of the Crown might escape with a milder sentence, free persons for similar offences were placed in jeopardy of their lives".

This trial concerned 4 of the 25 persons sent from Van Diemen's Land to Sydney for criminal trials between 1815 and 1819. This was expensive for the government, which sent 77 witnesses to give evidence at these trials in Sydney .
See Castles, Australian Legal History 52-53; A.C. Castles , Lawless Harvests or God Save the Judges: Van Diemen's Land 1803-1855, a Legal History, Australian Scholarly Publishing, 2007, 84-89; and for the court structure, see Second Charter of Justice, in J.M. Bennett and A.C. Castles , A Source Book of Australian Legal History, Law Book Company, Sydney, 1979, 31-38. On the first sittings of the Court of Criminal Jurisdiction in Van Diemen's Land, see R. v. Franklin, 1821. See also Barker v. Jemott, 1819.

Published by the Division of Law, Macquarie University