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

R v Butler [1826] NSWSupC 49

murder - Hawkesbury River - domestic violence - capital punishment - Crown mercy

Supreme Court of New South Wales

Forbes C.J.,[1 ] 28 July 1826

Source: Australian, 29 July 1826

 

Charles Butler was indicted for the wilful murder of Catherine Collins on the 13th day of May last.[2 ]

It appeared in evidence that on the day in question the prisoner and deceased, who had cohabited together for some time before, proceeded in a boat to the residence of one Summers, on the banks of the Hawkesbury; that they arrived there, and after having partaken of a moderate share of refreshment, rejoined their boat and set out in a direction towards home.  The prisoner, it would seem from the evidence, reached home by himself, and on being asked where the mistress, meaning the deceased, was, said he had set her on shore at Doyle's Point, for the purpose, as she stated, of obtaining the signature of Mr. Doyle to a petition, which she had drawn out for some particular purpose.  This mode of accounting for the non-appearance of the deceased, seems to have been disregarded at the moment , on account of the feasibility of the prisoner's statement; but, it happening some time after that a report was raised of the deceased's body having been found floating down the Hawkesbury River, suspicions were excited, and several persons in the neighbourhood and places adjacent thereto, repaired to the Coroner's Inquest.  The body, on examination, was found to exhibit a mark of violence on the cheek bone.  A stone appended to another stone, was also fixed to the chest.  This was, in substance, the case against the prisoner.

There was no defence; and the Judge proceeded to sum up the evidence to the Jury, who, after some minutes consideration, returned into Court, finding a verdict - Guilty.

The Judge then proceeded to pass the awful sentence of the law, on the unhappy prisoner. - In the course of his observation the learned Judge, said that, after a patient hearing of the whole case the Jury combining the whole circumstances together, had pronounced him (the prisoner) Guilty; it therefore became his Honor to pass the verdict of the Court on the prisoner.  Situated as you are, continned [sic] his Honor, it would indeed be highly improper in me, to address you by any language from which an inference might be drawn, of mercy being extended to you - think not of Hope, that is shut out least in this world.  The learned Judge then passed the sentence of the law, in the usual manner, on the unhappy criminal; and which was fixed to take place on Monday morning next.[3 ]

 

Source: Australian, 5 August 1826

 

The unexpected delay in the execution of Charles Butler, who suffered on Thursday morning,[4 ]occurred partly on account of the reason stated in our last, and partly owing to an Order of the King in Council - an Order which has recently reached the Colony.  In England the fate of criminals who receive, or who are liable to receive sentence of death, frequently depends much on the opinions of the Judge who happens to try them.  He is considered best able to speak of the features of the crimes committed, and say, whether any thing exists in individual cases, calling for the exercise of clemency, or for a mitigation of punishment.  Circumstances which may affect the doom of the culprits sometimes appear when the cases are settled by the King in Council, but for the most part the Judge's notes, or the Judge's sentiments are the main guide.  This is a weighty responsibility for a Judge, and we therefore do not wonder at the Chief Justice of a distant Colony feeling delicate in the exercise of it himself, when he might with propriety leave that responsibility in the hands of the Executive Authority. - Accordingly the Chief Justice, when requested by the late Governor to express an opinion in capital cases for the guidance of his Excellency, very wisely adopted the course of laying before the Governor the notes taken on the trials, unaccompanied with comment, and immediately suggested to Lord Bathurst the propriety of the Governor receiving the assistance of an Executive Council as to these matters, after the manner of the Royal Council at Home.  This suggestion has been replied to.  And an Order of the King in Council, which, as we have stated, has just reached the Colony, ordains, that when a criminal has been capitally condemned, the Executive Council shall meet and finally determine, whether he must be executed.  So stood the case with respect to Butler.

In the generality of capital cases, the assembling of the Council for the above purpose, will be attended with no inconvenience, but we can hardly see how it is possible, however expeditious matters may be conducted, for the Order in Council to be complied with in cases of murder, and without violating a public and peremptory law - a law which cannot be dispensed with by order of the King in Council ... a law which requires a person convicted of murder to be executed, within twenty-four hours after the verdict of the Jury is recorded.  For these trials Friday is usually selected, in order to evade the strict letter of the law, by making Sunday, which is in law a dies non intervene between sentence and death.  A trial may endure till late on Friday night, it might last till Saturday.  The time for calling together a Council, and going through all the forms rendered necessary by the Order, is obviously too short, unless the law we have alluded to be violated.  The Council was called together in the case of Butler, but we believe that the power of doing so will be fully considered before its interference on a similar occasion will be called for. ...

 

EXECUTION.[5 ]

Charles Butler, who was tried yesterday week and found guilty of murdering a woman named Collins; who was sentenced to pay the forfeit of his life on the following Monday; was in some measure prepared for the awful event, but had it deferred from that day, suffered on Thursday morning.  He professed himself a protestant.  The Rev. Mr. Cowper attended him assiduously, and endeavoured to bring the unfortunate man to a sense of the enormity of the crime for which justice demanded that he should suffer a premature - an ignominious death - that an open confession of the part which he taken in depriving the hapless woman Collins of existence, would not tend to make his final exit from this world the more painful, nor detract from that shew of commiseration which witnesses of his untimely end would naturally feel, and which it was a foolish and a very general idea with many person unfortunately situated like himself, would not be afforded, when the culprit promptly confessed his crimes, and that his punishment was called for to appease the laws of outraged justice.  On Monday, when the fatal warrant was momentarily expected to arrive, Collins appeared firm and composed in his demeanor.  He spoke but little, and maintained his innocence of the horrifying crime of murder.  Subsequently he admitted having been present when the woman met her death, but denied any participation in it himself.  He accused two men, who have since been apprehended and lodged in Gaol, of having been the assassins.  That those were the men who having rowed in a boat with himself, and the woman Collins, to some distance up the Hawkesbury River, satisfied their murderous dispositions by throwing their hapless victim overboard.  Whether any violence had been committed on her previously to this taking place, he would not disclose.  From the circumstance of a severe gash being discovered on the cheek bone, when the body was found, it was conjectured that some additional violence had been offered.  At nine o'clock, or a few minutes after, of Thursday morning, Charles Butler left one of the condemned cells - repaired to the usual place of execution, at the back of the gaol - and, after passing a short time in prayer, with the Rev. Clergyman, ascended to the fatal platform.  When the ministers of death had completed their preparations, and when the last sound of retreating footsteps, as the Clergyman and other descended from the scaffold, had died away, the drop was let fall - the criminal became suspended between earth and heaven.  His agonies appeared long and painful; and between seven and eight minutes had slowly expired, ere the body ceased to exhibit symptoms of animation.  This unnecessary prolongation of punishment, at the view of which humanity shudders, was thought to originate in the executioner's negligence.  This unhappy man had a wife - she appeared to have scarcely seen 17 winters; and in her manners, exhibited symptoms of strong and unaffected grief.

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.

[2 ] The Monitor reported this case on 4 August 1826, noting that Butler was a convict assigned to the service of his wife, who lived at Portland Head.  The victim, Catherine Collins, also known as Kitty Carman, was a lodger in the same house.

[3 ]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, the judges gave the condemned prisoners an extra day to prepare themselves for death.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3. By s. 4 of the Act, the judge was given power to stay the execution; for another example of that, see R. v. Fitzpatrick and Colville, June 1824.

For the governor's decision that the prisoner should hang, see Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 74.

[4 ] 3 August 1826.

[5 ] See also Sydney Gazette, 5 August 1826.

Published by the Division of Law, Macquarie University