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

R v Moloney [1825] NSWSupC 41

murder - evidence - testimony on oath - execution - capital punishment - bushranger - Port Macquarie

Supreme Court of New South Wales

Forbes C.J., 9 September 1825

Source: Sydney Gazette, 15 September 1825


Patrick Moloney was indicted for the wilful murder of William Elliot, at Port Macquarie, on the 29th of March last.[1 ]

The Attorney General[2 ] stated the case.  The prisoner stood charged with the highest offence, which could be perpetrated in society, and if the Jury believed the evidence that would be brought forward, by which it would appear that there was no previous quarrel between the parties, nor the least shadow of reason for the commission of the act, there was no other possible conclusion to be arrived at, but that the prisoner was guilty of murder, as charged in the information.

Thomas Gregory examined.  I am Hospital Assistant at Port Macquarie.  On the morning of the 29th of March, while I was in the dispensary, I was informed that one of the prisoners had been murdered in the gaol-yard.  Shortly afterwards he was brought down by two men, and carried into one of the wards, where I assisted Dr. Moran in dressing the wound.  There was an extensive fracture on the right side of the head through the bone into the substance of the brain, part of which had exuded from the wound, and from which several splinters of bone were also extracted.  The deceased gradually lost his strength, and died on the 6th of April, I am positive from the effect of the wound.

Cross-examined by Mr. Rowe.  I was brought up to the profession of a surgeon; Dr. Moran was the Medical Attendant, and saw the wound first; I was not present at the Coroner's Inquest; Dr. Moran gave evidence there; I have never heard Dr. Moran say that the deceased did not die particularly from the effect of the wound; nor have I heard him give any specific opinion on the subject; I expressed an opinion, that the deceased could not survive, on seeing the wound; the deceased was not a strong man, and rather subject to ill health; Dr. Moran might be able to give better testimony on the subject, but I feel perfectly competent to state positively, that the wound caused the death of the deceased.

By the Court.  Paralysis came gradually on until the day the deceased died.

Thomas Moxam examined.   I am armourer to Captain Gilman, at Port Macquarie; I reside in the gaol for safety, in consequence of having fire arms in my possession; I was in the gaol-yard on the morning of the 29th of March; the prisoner was brought in the day before, as a bushranger; my attention was drawn by a noise of something crhasing [sic] near to me; I turned round, and saw an axe drop from the prisoner's hand, and heard him exclaim, ``you dd scoundrel," or ``you bl--dy scoundrel, you are settled."  The prisoner was secured, and the deceased taken to the hospital, where Dr. Moran immediately attended him.

Cross examined.  The report of the blow was what first attracted my attention, I did not see it given; I have never heard Dr. Moran say that the deceased did not die of the wound.

John Howard examined.  I was present in the gaol-yard, when the deceased received the blow; I was sitting next to him at breakfast; the prisoner sat at the other side; an axe lay near a heap of wood in the yard; the prisoner went for it to break a bone which was in his mess, when he had broken the bone he laid the axe down, and after looking round the yard to see that no one observed him, he again took it up, and struck Elliot on the skull, saying, ``you villain take that;" the deceased fell against the paling.  Moxam came up just after it happened.

Cross-examined.  Moxam came up about five minutes after, the axe was then lying on the ground; I did not see the deceased draw a knife, nor make a blow at the prisoner; I am sure they had no quarrel, and I saw no cause whatever for the act.  I do not know what book I have been sworn on, nor for what purpose I am sworn.  I do not know the consequence of not telling the truth, nor what will become of my soul if I swear false.  I do not know what religion I am of; I cannot say any prayers; and I have never been at any church or chapel.

By the Court.  I was never taught to say any prayers when at school.  I do not know that my soul will go to the Devil if I tell lies; and have no idea what will become of me when I die.  I have been here three years and a half, and was sent here for stealing a shirt.

William Acres examined.  I am a wardsman of the gaol at Port Macquarie; I was in the yard on the morning of the 29th of March, and saw the prisoner strike the deceased on the head with the axe, and then throw it on the ground.  Howard, the last witness, was standing near him at the time.

Cross examined.  The deceased was a weak sickly man.

The Chief Justice summed up the evidence, and observed, that in consequence of his extraordinary ignorance of an oath, he threw out of the scale the evidence of Howard, further than as it served to corroborate the other testimony, by which nothing appeared to show the act to be the effect of self-defence, or of passion; there was nothing to justify, nor any possible cause for its perpetration; there was no quarrel, but in a moment words of a bloody character were used, the axe was raised, and the man struck.  From the evidence of Mr. Gregory it appeared, that the blow caused the death of the deceased; and the law was, that where a man strikes another maliciously, with intent to do him some great bodily harm, and death ensues, it is murder.  The Jury returned a verdict of Guilty.  The prisoner was sentenced to die on Monday, the 12th instant.



Source: Australian, 15 September 1825


Pat. Malony was executed in pursuance of his sentence on Monday morning last.[3 ]  After his conviction the Rev. J. J. Therry visited him in gaol.  His behaviour on leaving the cell on the morning of his execution shewed a mind suited to his awful situation.  Having reached the scaffold, he enquired for a lad to whom he was personally known; the boy was brought to him, he shook hands most affectionately and conjured him to take warning by his untimely end.  He then addressed the multitude around him, nearly as follows: - "My friends, I have been justly found guilty of an offence; and I am now about to expiate that crime by an ignominious death.  But I forgive my enemies - with my dying breath I pardon them for all the wrongs with which they have oppressed me.  My religion teaches me to die in peace with all mankind.  I die happy.  There is, however, one thing which I am anxious to mention; that hard usage, cruel treatment, hunger, and severe scourging, drove me to the commission of the fatal act," - here he was interrupted by the Under Sheriff.  He then said a few words to the minister; and was launched into eternity.



[1 ] The trial was also reported at less length in the Australian, 15 September 1825.

[2 ] Saxe Bannister.

[3 ] 12 September 1825. In this case, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, Forbes C.J. gave the condemned prisoners an extra day to prepare themselves for death.

The short period between conviction and execution did not mean that the governor had no time to consider pleas for mercy.  Forbes C.J. gave notes of the trial to the governor, but was firm that he would never recommend that the sentence of death be carried out.  If he did that once, he said, then any time in which he did not do so might be misconstrued as a recommendation of mercy.  Following English precedent, he did, however, recommend mercy when he thought it appropriate: Forbes to Wilmot Horton, 26 November 1825, Catton Papers, Australian Joint Copying Project, Reel M791.  For correspondence between Forbes and Governor Brisbane on individual cases, see Mitchell Library A 744 Letters from Governor Brisbane to Forbes C.J.

In the same letter, Forbes C.J. showed that he sympathised with what appeared to be the view of Moloney that harsh treatment of convict servants was the cause of some violent crime.  He concluded that ``there is something in Convictism, like Slavery, corrupting to the mind  when we fasten a chain round the leg of a prisoner, and place it in the hand of a Settler, we in effect bind two men in fetters; the one becomes a Tyrant, the other a Slave".

Published by the Division of Law, Macquarie University