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

R. v. Witham [1818] NSWKR 1; [1818] NSWSupC 1

murder, of a child - murder, absence of body

Court of Criminal Jurisdiction
Wylde J.A., 30 January 1818
Source: Sydney Gazette, 31 January 1818

James Witham was next indicted on suspicion of the murder of a boy of 13, named Dell, whom we mentioned in a paper of October last to have been missing from a farm near Parramatta since Saturday the 4th of that month. The leading circumstances of the case were, that the boy was sent from the house of a man who had brought him up from infancy, situated in the direction of the Red Bank; from whence he set out towards Howell's Mill, to get a peck of corn ground, and has never been seen since. The prisoner had himself taken a like complement of corn to be ground at the mill on Sunday morning the 5th of October, and had never taken any thither before; he was also a very poor man, and could not in any period of his subsequent confinement give a satisfactory account of the mode in which he became possessed of that corn. The body of the boy, if murdered, had been sought after by almost the whole of Parramatta, and not found; and consequently from a maxim of law which seems to require that the death of the person supposed to be murdered should be clearly ascertained before the recording of a verdict against a party accused of the offence, the prisoner was acquitted and discharged. Before he was taken from the bar, however, His Honor the Judge Advocate expatiated with much energy on the mysterious circumstances of the case; which though unfathomable to human investigation, could not escape the knowledge of an avenging God!

Published by the Division of Law, Macquarie University