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

R. v. Stanley [1827] NSWSupC 12

Aborigines, killing of - Aborigines, legal status - murder - Port Stephens - capital punishment, at place of crime - Crown mercy - Norfolk Island

Supreme Court of New South Wales

Forbes C.J., 3 March 1827[1 ]

Source: Australian, 6 March 1827

 

Thomas Stanley stood capitally indicted for the wilful murder of an aboriginal native of the Colony, at Port Stephens.[2 ]

Mr. Joseph Pennington examined --- I live at Port Stephen Branch, situate about 18 miles from Newcastle, and the same distance from Port Stephens --- I have been some time there, as superintendent for Mr. Lord - prisoner was a servant of Mr. Lord's, and lived at the same place - I knew a native boy who frequented the huts - he was about 12 years of age, and was called Tommy - On the 18th of May last, one Colthurst came into my hut, where I and the native boy were - the latter was asleep, but Colthurst awakened him - he said to the boy "white man will give you patter," meaning dinner - In the course of the same afternoon it was proposed by some of the men, that they should go kangaroo hunting - Stanley (the prisoner) and another man named Chips got into a boat, taking the boy along with them - as soon as they had pushed off from the beach, one of the men who remained on shore, called out to the two in the boat "take care the little --- don't jump over the bows" - one of the men from the boat replied "we will take d--d good care of that" - the boy cried out to give him his pipe - a reply was made to him, that "he should get his pipe to-morrow" - the boat proceeded down the river - the other two men, Colthurst and Ridgway, who remained ashore, proceeded along the bush, in a direction towards the place where it was intended the boat should make - about an hour after, the whole of the four men returned - the boy was not with them - I overheard the prisoner (Stanley) say "don't tell him anything about it" - considered from that, he meant me - my suspicions were excited in consequence - but being in the power of those men, I gave no hint of my suspicions - about ten days after, I observed the body of a black person, resembling the boy that was missing, floating up the river - there was a crow sitting on the body - I ordered the body to be drawn on shore, and had it buried - the prisoner assisted on the occasion - he was the first who recognized the body to be that of the boy Tommy - is speaking of the boy's death, he said he supposed the boy had fallen from a tree, and got drowned.

Daniel Woodhill --- is servant to last witness --- recollects the prisoner proposing to get the boy out of the superintendent's hut - heard prisoner say "let us take the boy to the cedar raft" - this was about half-a-mile from the huts, down the river - another servant, a man named Chips, consented - prisoner then went out of the hut, and brought in with him some wet currojong - this is generally used as a substitute for cord or string - prisoner asked Chips, if that would do --- the latter replied "yes, if there is enough of it" --- witness, with the prisoner Stanley, Chips, Ridgway, Colthurst and the black boy, went to the boat.  This witness described their going and returning, in much the same terms as last witness.

The Chief Justice summed up the evidence, and the Jury returned a verdict --- Guilty.[3 ]

 

Notes

[1 ] This case was tried on Saturday, 1 March 1827.  Murder trials were usually held on Friday, and if the defendant were found guilty, the execution took place 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, 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 an example of that, see R. v. Fitzpatrick and Colville, June 1824.  Unless a stay were granted, Stanley should have been executed on Monday, 3 March 1827.

However, a new policy was put into effect in 1826. The Monitor, 13 October 1826, reported that "In order to increase a more powerful example by the execution of criminals, it is in contemplation to make the actual scene of their respective crimes in future the place of punishment.  With this view it is supposed that the delay has taken place in allowing the law to take its course in the cases of nine unfortunate men who are now awaiting the awful mandate.  Port Stephen - Parramatta - Bathurst - and Burwood, will in that case, witness the operations of retributive justice."  This was of doubtful legality where the crime was murder, due to s. 1 of the murder Act.  It was not possible to reach Port Stephens so quickly.  See also R. v. Mustin and Brown, October 1826.

[2 ] The other three were tried and convicted in September 1826: see R. v. Chip, Ridgway,Colthurst and Stanly, September 1827.

[3 ] After he was initially ordered to be executed at Port Stephens, Stanley's sentence of death was eventually commuted to hard labour in chains for life at Norfolk Island.  The path to Crown mercy in his case is examined in the footnotes to R. v. Chip, Ridgway,Colthurst and Stanly, 1827.

Published by the Division of Law, Macquarie University