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

R. v. Geeson, Herbert and Welsh [1828] NSWSupC 68

military defendants in crime, murder, mens rea, manslaughter, provocation, convict evidence, jury, military, principal and accessory, benefit of clergy, reception of English law, date of reception

Supreme Court of New South Wales

Dowling J., 29 August 1828

Source: Australian, 3 September 1828

Mr. Justice Dowling having taken his seat, and the Court being formally opened,

John Geeson, John Herbert, and William Welsh, three private soldiers belonging to the 39th Regt, were severally capitally indicted, the first named prisoner as principal and the two others as accessaries to the wilful murder of Terrence Rooney, on the night of the 17th August last, to which the prisoners pleaded not guilty.[1 ]

The Attorney General conducted the case for the prosecution, and Mr. Rowe that for the defence.

The first witness called in support of the prosecution, was, Mr. P. H. Cohen, and next, Henry Ward, both of whom deposed to an effect similar to what they had previously at the Coroner's Inquest.

James Haggett, a settler, living at Campbell Town, deposed to having seen the deceased running under the gateway of a public-house, opposite Payne's, but could not say by whom the deceased had been wounded.

William Danks, a private soldier, belonging to the 39th Regiment, deposed.  On the evening of the 17th August, I was in Sydney.  About 7 o'clock that evening, I was in company with Corporal Duffey and Michael Russell.  We were in a public-house together in Pitt-street.  We had previously gone to Girard's house, in George-street.  I cannot say whether I saw the prisoners at the bar there.  I went into the tap-room with Russell and Duffey.  I had nothing to drink at Girard's house.  I was sober at the time.  I left parade about 5 o'clock.  I had tasted three or four glasses of rum, besides my ration rum, which is about two glasses and a half.  There might have been as many as a dozen soldiers in the house, of the 39th.  They were quarrelling with each other, and I left with Russell and Duffey.  From thence we proceeded to a public-house in Pitt street, and staid there about a quarter of an hour[.]  Returning to Barracks, in company with Russell, we had got to the Barrack gate, at the east corner of the Barrack wall, I saw some stones falling to the ground, and people making a great noise.  There might be twenty persons or more.  At that time Russell left me[.]  I was then perfectly sober.  I saw prisoners Herbert and Welch against the Barrack wall, and the civilians beating them.  A little lower, Geeson was on his knees.  I ran and lifted him up.  He had his bayonat [sic] drawn, and was brandishing it, saying he would have been killed if I had not come on.  There was a man under him,  I took no particular notice of the bayonet, but it was unsheathed and in his hand.  After I had raised Geeson from the ground, he kept knocking the bayonet about while I held him, and after some time he broke loose from me, and ran towards the corner of the new building just beyond the Barracks, at the corner of a lane.  After I had taken him up from the man under him, he wanted to strike some man, and run up to the corner of the lane, where there was a parcel of people.  I saw no more of him till I saw him in the Barracks.  I got my hand hurt in the struggle to hold Geeson.  I saw Geeson the same evening at his quarters, at 9 o'clock.  I saw Herbert next day.  He had lost a brush from his belt.  Next day we were called out by the Serjeant Major, and afterwards had a conversation with Geeson and Herbert.  I told them I should say as little as I possibly could; that if I was called upon I would say that I picked him, Geeson, up when he was down, thinking he would be killed, if I had not,  I believe this to be the fact.  The prisoners were earnest in their entreaty that I should tell as little as I could.  When Geeson got away from me, he returned towards the corner of the new building. I did not see him again that evening.  He was dressed the same as I am[.]  I am not certain whether Geeson had his cap on at the time when he left me.  The other two soldiers had their caps on.

Cross-examined.  Geeson said in the presence of the man who was lying under him, that had I not got up he would have been killed.  There were three or four person round Geeson when I came up.

Bernard Fitzpatrick.  I am a conductor of Police.  On the 20th of August, the prisoners Geeson and Herbert were brought to No. 5 watch-house  this was pending the sitting of the Coroner's Inquest.  They were confined in separate rooms.  I recollect a soldier of the 39th bringing them breakfast.  I was then in the watch-house alone, besides the prisoners.  A soldier of the 39th came to the watch-house door, knocked at it.  I opened it, and the soldier presented two canteens, saying, it was breakfast for Geeson and Herbert.  He made a motion to come in, when I told him you can't come in.  He said, I want to speak to them.  I told him he could not, as it was against the orders I had received.  I then took the tins from him, and bid him go round to the window, where he would see me divide it.  He went to the window which looks into the street, and in his view I divided the breakfast.  On opening the ward-door, each of the prisoners began a conversation; asking, who's there?  I told them that one of their regiment had brought breakfast to them.  After giving them their breakfast, I withdrew, closing the door after me, and then retired into an inner-room, at the back of the wards, where I could hear any conversation, moderately loud, which passed in the wards.  Hearing Geeson call out "Bill, are you there"  I listened.  An answer was returned from the soldier on the outside, yes.  Geeson then said to this soldier, "Bill, is that constable there?"  No, returned this soldier, he is gone backwards!  Says Geeson, Bill, where is Danks now?  answer  He is in No. 5 watch-house!  Geeson - Is he locked up as we are?  Answer  No, he is in the kitchen where the fire is!  I saw him this morning, and spoke to him.  Geeson,  I say, what is he confined for?  Answer  Oh, you know well enough!  Geeson  Do you think he has split any thing?  I understood him to mean, by the word split, had he divulged any thing?  Answer  I don't know.  Geeson said, I suppose they have got him drunk, and have picked something out of him?  Answer  I can't say: but it's a bad job at any rate.  Geeson  All I can say about it is, Danks saved my life.  Herbert, then from the opposite wall, interrupted the dialogue by saying, Jack, I wish you would hold your tongue, or you had better hold your tongue, cannot say which.  The conversation then dropped.  Geeson spoke in a common Irish accent, I should take him to be from Munster.

Cross-examined.  Geeson said, "well, at any rate, Danks saved my life."  I took the whole of Geeson's conversation to refer to Danks only.

Dr. James Mitchell.  I recollect on Sunday evening, the 17th instant, receiving the dead body of Terence Rooney in General Hospital.  The man must have been dead several hours.  I examined the body, and found a penetrating wound in the right side, in the place of which I discovered a thrust through the liver and lower part of the stomach.  One of the vessels had become lacerated, which injury, in my opinion, produced the man's death.  I supposed the wound had been occasioned by an instrument pointed triangularwise; and such an one, as might have been occasioned by a bayonet.  There was no other appearance of injury on the body.  Deceased was a young man.

Thomas Brown.  I reside in Sydney.  A man of the name of Terence Rooney was my assigned servant.  At a quarter to six o'clock on Sunday evening, the 17th instant, he left my house to go to Church; he was then alive, and well, and sober.  I have never seen him from that time to this.

Dr. Halloran.  I am Coroner for Sydney.  On the 18th instant, I commenced holding an Inquest on the body of a man named Terence Rooney.  I took depositions under the Inquest.  A person of the name of Dalton was examined at the Inquest.  I now hold in my hand a soldier's brush, given to my hands by witness, William Thompson.

William Danks recalled. The brush now produced, appears to be the same brush which was produced at the Coroner's Inquest.  It is prisoner Herbert's brush.  Herbert told me on the next day after the affray, that he had lost it over night.  I had seen him set the hair of it about five days before.

Thomas Dalton - I was examined as a witness at the Coroner's Inquest held on the body of Terrence Rooney, on the 18th instant, and succeeding days.  On Sunday evening, the 17th instant, I was going (through George-street) to a new building at the Market-wharf, which I had to take care of.  In going along George-street I met three men in my master's employ - named Hacket, Hart, and Dowd, in company with a blacksmith.  It was proposed by one that they should go somewhere and have something to drink.  We were on our way to our master's in George-street, when three soldiers, linked arm in arm, overtook us.  They were walking in the middle of the road.  When the soldiers came in a line with us, they jostled one and all against me, with some force.  I then turned to the right, seeing they were soldiers and wishing them to pass, I asked their pardon.  The blacksmith, who was with me, linked arm in arm, said - "Soldiers, take care of your pipe clay."  On this word, prisoner Geeson struck the blacksmith - the blacksmith then loosened his arm from mine, and struck Geeson  the conclusion was, that the blacksmith knocked Geeson down.  The other two soldiers then struck at me with their fists, Geeson then drew his bayonet.  The blacksmith at this time was falling, and had his arms upraised, endeavouring thereby to save his face from being kicked by the two soldiers.  At this time the two soldiers were in the act of kicking the blacksmith in the face, head, and body - wherever they could.  Geeson then, on the moment, drew his bayonet, between the waistband of his trowsers and his waistcoat, and stabbed the blacksmith in the small of his back.  I called to the other two men to come up to assist, and the men then made their escape.  I called to them not to run and see a man murdered.  I then took hold of the prisoner Herbert, and pulled him two or three yards away from the blacksmith.  The other two soldiers then faced me with their naked bayonets, and I let go my hold of the soldier I had.  I then seised a stone, for my own preservation, and slung it at Herbert, I cannot say whether it struck him, but I think it did, on the hand which he held up to ward the stone off.  I then made towards my master's gate, and got out of the street.  The three soldiers turned about then, and made towards the Barrack-gate, I heard some people say in the street - "Is there nobody to apprehend these men?"  I said I would for one; when the persons who spoke accompanied me after the soldiers.  The soldiers observing this, turned about, and forced their way up the street again, with their naked bayonets drawn in their hands, brandishing them, and striking people with them as they passed along.  The persons who had been speaking to me about the constables, withdrew from the foot-path to avoid the soldiers.  The next thing I heard was the scream of some persons from the south side of the Barrack-wall.  I did not hear the person who screamed.  Two gentlemen called - "Is there no constable to assist?"  As soon as this expression was made, the prisoner Geeson came over to them, and, presenting his bayonet, made a thrust at them, and asked them what call had they with this.  The gentlemen replied, nothing my good man.  The same soldier, who had no cap on at this time, swore by the Holy G--t he would kill them.  He then turned as fast as he could over towards Mr. Morris's new building.  I then heard the cry of a man - I'm killed - I'm murdered."  I then saw Geeson pass over from Mr. Morris's to where his two comrades were scuffling with some of the people.  The guard from the Barracks then appeared in sight, and the soldiers disappeared, by running up the lane towards the south Barrack-gate.  I saw no more of them.  I saw a man stabbed at Morris, gate, and afterwards saw this man lying under the gate, wounded.  I saw the prisoner Geeson in the act of stabbing this man, and heard a man to cry out he was stabbed.  At this time the other soldiers were at the corner of the lane, within a few yards of Geeson.  I was called upon at the Coroner's Inquest, the ensuing Wednesday.  I was blind-folded at the Inquest, for the purpose of ascertaining if I should know any person by their voice.  In the first instance Geeson was made to speak, whilst I was blindfolded.  I recognised his voice - it was the same voice I heard speak in George-street on the evening of the 17th instant.  I heard Geeson in his conversation with the gentlemen, and also with his comrades, on that particular evening.  I had not seen Geeson the day on which I was blindfolded.  When he was introduced, I instantly recognised his voice.  The three prisoners also spoke while I was blindfolded.  I heard Herbert speak.  He was the man I had hold of in George-street.

Cross-examined - I am a prisoner of the Crown for seven years.  I arrived in the Colony last July twelvemonths.  I never saw Geeson, to my knowledge, before the night of the 17th.  He had not his cap off the first time I saw him that night.  When I first met the men, the blacksmith, who was of my party, addressing the soldiers, said, "Soldiers, mind your pipe clay."  I never said that I knew a soldier of the name of McGuire.  I have a fellow servant of the name of McGuire.  I never told any person on the particular night, that I knew the soldier who had stabbed the man.  The man whom I saw with the cap off, was not beastly drunk.  He might have been drunk.  Geeson spoke in a very loud, tempestuous manner in the street.  When Geeson was before Coroner, he spoke in a law tone of voice.  While I was blind-folded, I recollected the prisoners' voices.  I don't know which of the three prisoners spoke first in the Jury room.  I only recognised the voices of two of the prisoners.  I have been in the rear of the Court-house all day.  I had not been in Court during the trial, nor until I was put into the witness-box.  I have accidentally heard persons going out of Court, converse an odd word together - one asking the other how the matter was getting on.  I did not converse with any one on the subject.  The man who had the cap off had darkish hair.  I never saw Geeson since the 17th of August till I saw him brought from the gaol to the court this morning.  I never said to the Coroner that I did not know the person of Geeson.  The three soldiers were all riotous together.  I did not see the two soldiers endeavour to pacify the other. I had hold of one of the three soldiers when the blacksmith was removed.  I don't know who removed him.  The last time I saw him was when he was laying on his back in the street.  I did not go with Thompson any where that night.  I spoke to him at Payne's house.  I never saw him any where, except a few yards from the house, that night.  I did not speak to Thompson individually.  I did not go with him to a crowd of ten or a dozen persons.  He might have gone, and been there, but he did not accompany me.  Neither of the two soldiers prevented the third from doing further mischief.  It might have been done without my seeing it.  When I had hold of Herbert, I had my eyes fixed upon him, and upon no other person at that time.  The three soldiers were all outrageous, but not so determined as Geeson.  The three soldiers drew their bayonets, when the quarrel took place with the blacksmith.  I have been in the army.  In the regulars - in the 83d Regiment.  Was discharged in 1810.  I was disabled in an action.  I was 14 years in the army, and on my discharge got a pension.  I held a pension when I committed the crime for which I was sentenced to this country.  I was tried in Dublin - Question - What was the crime you was charged with? - Witness hesitated for some time to give an answer to this question.  The Attorney-General told the witness he need not answer the question, unless he chose.

Witness - My offence may be ascertained on reference to Mr. Hely's office.

Question - Was you ever charged with theft? - It is not for my honesty my country has sent me here.

The Court - Can the witness say more than what he has?  He has given the answer to the question.  He stands in the box a transported convict.

Question - Were you ever charged with perjury? - Witness. I will not answer the question.

Examination resumed - I told the Coroner that I could identify the person of the soldiers.  I do not know the reason why I was blindfolded.  Immediately upon the two men speaking at the Inquest, I identified their voices to be the two men who had done the murder.

Dr. Halloran - I examined last witness at the Inquest, relative to the identity of person.  He said he thought he could swear to the person of one of the men, but was quite sure he could to the voice.  I then had him blindfolded, and placed in a corner of the room, with a large board before him, so that it was impossible he could see anyone.  I then called in three or four soldiers into the room, and put some unimportant questions to them, merely for the purpose of his hearing their voices.  Upon hearing the voice of Geeson, this man called out, aloud, "I'll be upon oath that's the man who committed the murder, and the man who spoke before him is the man I pulled away from the blacksmith."  When the soldiers had withdrawn, I read the whole of the depositions to the witness, slowly and attentively.  There were some omissions made in the depositions to this witness, from his going on too fast, and I omitted to notice a particular fact, in the order it occurred, and that was the cause of the interlineation, and then it was inserted.

Cross-examined - When the witness was speaking about the identity of one of the soldiers, I think he said he was pock-pitted.  I cannot say whether he said the soldier had light hair.  He said three soldiers were flourishing about their bayonets.  He did not say that two soldiers attempted to prevent the third from doing any mischief, or that one of the three threw himself between a soldier and a civilian, to prevent mischief being done.  There was one, if not two brought in, before other of the prisoners at the bar.  I am quite sure of this.  Herbert was the second man called in - Geeson the third.  He did not speak of Herbert till Geeson spoke, and then he said, that is the man who committed the murder, and the man before (Herbert) was the one he pulled from the blacksmith.  There was nothing so particular in the dialect of the first soldier who was called before the Inquest, that I could ascertain what particular country he was of, but I believe him to be an Englishman.

Edward Kershaw examined - I am a blacksmith, living in Sydney.  On Monday week, about seven o'clock in the evening, I was going towards the wharf, down George-street, in company with one McCarthy, when three soldiers, to the best of my knowledge, overtook me, and shoved against me.  I asked them their reason for doing this, as there was plenty of room before them, as well as I had.  The answer they  made me I don't know.  They gave me no time to talk, when one of the soldiers struck me with his fist.  There were three soldiers in company.  I did not notice what description of men they were.  The man who struck me, I struck again, and I brought him to the ground.  I was saving myself as much as I could, when I was again struck by another of the soldier party, by the socket of the bayonet, on the side of the head.  I was then knocked down.  While on the ground, and before I could recover myself, another man stabbed me with a bayonet in the hip.  The wound was inflicted between the breech-band and the waistcoat.  I got up from the ground, and while I was getting up, the soldier stood over me, when one of the soldiers came and pulled him away.  The first soldier who stood over me had previously made repeated efforts to stab me but his bayonet missed.  I was severely wounded.  I am now labouring under the effects of the wound I received.  I could not swear to any of the soldiers who were concerned in this affray.  I struck the soldier as hard as I could.  I am not sure whether I struck him in the face or not, so as to leave any marks thereon.  This happened in George-street, convenient to Mr. Payne's premises.  Three soldiers drew their bayonets, but I received only one stab.

Cross-examined - I was walking linked arm in arm along the footpath, when we met the three soldiers, whilst going down George-street.  We pushed against each other.  We were not very sober.  The only man in my company was a man named McCarthy.  We had been drinking together.  There was no other person in our company.  There might be persons walking close to us in the street.  There was no other person linked on my arm but McCarthy.  I did not take notice whether McCarthy, with whom I linked arm in arm, was in link with another person besides.  I had one arm disengaged.  It was me who used the offensive expression to the soldiers, but it was after I had been shoved off the foot-path.  I took no notice whether any other person spoke to the soldiers.  I did not hear any one say I beg you pardon, soldiers.  The soldiers were very offensive in their behaviour.  The words I spoke to the soldiers were spoken pleasantly.  I told them that the street was wide enough for them, and that they need not to have shoved me.  I made use of no other offensive expressions to the soldiers.  To the best of my knowledge I did not say to the soldiers, "mind your pipe clay, soldiers."  I had hardly time enough to say that.

The witness at this stage of the cross-examination complaining of extreme exhaustion, in consequence of the wound he had sustained, was permitted by the Court to take a seat.

Examination resumed - The man who knocked me down, to the best of my knowledge, was not the man who stabbed me.  One soldier attempted to prevent the two others from ill-treating me. - They did not kick me, that I know of, but I was cut in the leg, and how that was occasioned I do not know.

Re-examined - Several persons took me away to Mr. Payne's.  At so early an hour as 7 o'clock, and on Sunday evenings particularly, it is common for George-street to be crowded with persons walking.  I was walking along with McCarthy, and Hart might have met with some of his friends, for aught I know.

The Attorney-General having closed the case for the prosecution, witnesses for the defence were called.

John McMahon.  I am a cabinet-maker, and a native of the Colony.  I know a man of the name of Kershaw.

The Attorney-General interrupted the witness.  Was this upon the Inquisition?  Witness, yes!  I went to see the body of Kershaw.  The Attorney-General objected to the witness being examined as to this particular.  The Court ruled, that the Court was now sitting to try the three prisoners, upon an information filed by the Attorney-General, and had nothing to do with what took place would be the depositions taken by the Coroner, which were in Court, and to be overlooked on application to the Crown Officer.

Dr. Halloran was upon this called, and Mr. Rowe, put the question following;

Did you attend a wounded man of the name of Kershaw, and did he say any thing about pipe-clay?

The Court overruled the question.  Counsel then moved that the deposition of Edward Kershaw be read.

The deposition was accordingly read.

Kershaw was exceedingly ill while I took down his deposition.  I took down his evidence according to the best of my understanding, skill and knowledge.

Patrick Sullivan, private soldier of the 39th Regiment.  Had known Geeson, one of the prisoners.  Recollected seeing him about the hour of seven on Sunday evening, the 17th August, when, to the best of witness's opinion he was not drunk.  He had disembarked on the day of the evening on which the affray took place, from a vessel from Port Macquarie.

Serjeant Hawkins, of the 57th Regt. saw Danks in George-street, a little after 7 o'clock, on Sunday week last, near the south-east part of he Barrack wall.  He was not drunk.  He had been drinking.  Did not perceive any blood upon him.

Richard Bray, private soldier of the 39th, deposed to having seen Danks given in charge of Corporal Willbore, who also deposed to a similar fact.  Danks' hand was cut, and his belt besmeared with blood, between 7 and 8 o'clock, on Sunday week last.

Roger Crawne and John Moehan, both belonging to the 39th Regt. deposed to having seen Danks drunk the preceding Sunday week.

Colonel Lindsay, of the 39th Regt. - A detachment was landed from Port Macquarie on Sunday the 17th instant.  Geeson was of that detachment.  He had been away from Head Quarters probably for twelve months.  Knows prisoner Welch always bore the character of a well conducted man and a good soldier.  Had had a conversation with the witness Danks, who was formerly a serjeant in the 39th, but is now a private.

Serjeant John Walters, of the 39th Regt. - I arrived in the Colony on board of the Countess of Harcourt.  I was the serjeant of that detachment.  There was a prisoner came out in that vessel by the name of Thomas Dalton.  His conduct on board ship was bad.  From his general character, I would not believe him on his oath.

This closed the case for the defence.

Mr. Justice Dowling proceeded to sum up ``[in] conclusion to the grave and important enquiry upon which the Court had been occupied, the learned Judge considered it his duty to offer such remarks as might assist the Jury in deciding upon such a verdict as would be satisfactory to their conscience, and consonant with the ends of Justice.

The affair under comment, his Honor was aware had been a subject of public excitement, to which, from the limited nature of the community in which they lived, it was very possible the Jury were by no means strangers.  It was difficult, the learned Judge considered totally to divest the mind of first impressions, but he was persuaded from the habits and education of the gentlemen constituting the Jury, that their minds would not be warped by any unjust prejudices.  The learned Judge felt called upon to make such a preliminary observation from the circumstance of the prisoners happening to be a soldiers, and the Court, by the peculiar constitution of Criminal Courts in the Colony being partially composed of military officers, but the learned Judge felt confident that the Jury would not allow any natural impulse of indignation to operate against the prisoners, nor on the other hand lose sight of what was due to the offended laws of the Country.  To strict and impartial Justice the unfortunate person into whose death the Court was enquiring, was as fully entitled, as if he had not belonged to that class whose offences may have consigned them to exile.  Situated as the deceased was, it should still be considered he was a British subject, and entitled to the ample protection of British law; and the learned Judge doubted not but the Jury would give the whole case before them that degree of calm, temperate, and deliberate consideration it deserved.  Having premised thus far, the learned Judge would proceed to point out the legal features of the case.  The law made no distinction between principals in, and accessaries to, a murder.[2 ]  By accessaries were meant those who were aiding and abetting, but a person might be present at a murder, and if he took no part either in the commission or prevention of it, be neither a principal nor an accessary.  It should therefore be proved before conviction of the two prisoners charged in the present case as accessaries, whether a murder had or had not been committed, and how far the latter may have been concerned. - The alleged offence of murder was laid in the present case, as committed with malice aforethought, that was to say, with a disposition deliberately, bent upon doing harm, though not directed against any particular individual.  All homicides, the learned Judge would observe, the law considered as murder, until some circumstances capable of alleviation could be produced, to shew the contrary, and provocation could not be considered as exculpatory of express malice.  It did not appear that the unfortunate deceased had provoked the fate which befel him.  From the evidence it would seem that he was at the time a quiet inoffensive passenger in the street, but collecting every circumstance, it would be but a charitable construction to put upon the case, that the deceased had in some way provoked his fate; though the law however disposed to allow for the frailty of human nature, under certain circumstances would not extenuate acts of disproportionate and barbarous revenge.

With regard to the alleged principal in the crime of murder, the learned Judge would beg leave to point out two questions for the consideration of the Jury - firstly, was the death of the deceased occasioned by the prisoner who stood charged as principal? and secondly, assuming the prisoner to be such, was the revenge so taken, inflicted under the first made transport of passion, and proportioned to the supposed degree of provocation given?  If the Jury were disposed to bear to the latter opinion, then they might feel justifiable in finding a conviction of manslaughter? and for the better consideration of both questions, the learned Judge would invite the Jury to a rehearsal of the evidence of which he accordingly entered on a minute recapitulation, concluding with some observations upon the two prisoners charged as accessaries, against whom there had been no conclusive evidence to shew that they had been aiding and abetting Geeson in the act for which he stood indicted as principal.  Whatever the decision of the Jury might be, the learned Judge, in closing his charge, felt confident it would not be otherwise than consistent with the ends of justice and the public interest.

The Jury, upon this, retired, and after remaining out of Court about a quarter of an hour, returned, finding the prisoner Geeson guilty of manslaughter, and acquitting the other two prisoners, who were next day discharged by proclamation.

Forbes C.J., Stephen and Dowling JJ, 6 September 1828

Source: Australian, 10 September 1828

PASSING JUDGEMENTS.[3 ]

Shortly after the Chief Justice, and two Assistant Judges severally taking their seats on the Bench this morning, the Attorney-General rose, and prayed the judgement of the Court on such prisoners as had been tried during the Session, and remanded for sentence  agreeably to which, the following prisoners were called up to the bar  the first of whom was John Geeson, a private soldier, belonging to the 39th Regiment, convicted of manslaughter.  On the prisoner being asked in the usual form by the Clerk of the Arraigns, if he could say why judgment should not be passed upon him, Mr. Rowe, in his behalf, moved an arrest of judgment upon the record, which the Court, considering untenable, overruled.[4 ]  There being no other bar presented to the passing of sentence, one of the three learned Judges,

Mr. Justice Dowling, proceeded to address the prisoner.

He, John Geeson, the learned Judge would premise, was then about to receive the judgment of the Court, having been found guilty of feloniously slaying one Terence Rooney, on the 17th day of August last.  For the wilful murder of the same person he (the prisoner) had been indicted, but the Jury, considering all the circumstances of his case, had felt themselves warranted in bringing in such a verdict as would fall short of incurring the penalty which the law was accustomed to award on cases of wilful murder.  With the finding of the Jury (observed the learned Judge), I find no fault.  Upon a merciful view of your case (continued he, emphatically addressing the prisoner), they have saved you the horrors of an ignominious death, and I have been relieved from the painful duty, at all times distressing to a Judge, of sending a fellow being into the presence of his God.  A human tribunal has pronounced you (prisoner) not guilty of wilful murder; but, in the sight of God, the offence of which you have been convicted requires the same penitence, contrition, and reparation, as if you had been found guilty.  You stand convicted of slaying an unoffending fellow creature under the circumstances of your peculiar case  highly disgraceful, in any state of society.  It is with criminal grief that I see a person having the honor to wear the King's uniform placed before the bar of justice to receive judgment for crime; enrolled as a member of a highly distinguished regiment  honored by being sent here to share in a reputation  and called upon as far as in you say, to set an example of sobriety and good conduct  to uphold the laws and the Government in these remote regions.  But what has been your conduct?  Regardless of your duty as a soldier, and profaning the Sabbath day, you are found reeling drunk in a populous town, seeking an opportunity of giving offence to the peaceable inhabitants.  Upon a shew of resentment by the inhabitants, to your violent behaviour towards them, you at once, by way of gratification, evince those actions and that behaviour, which only spring from a malignant heart.  I am willing to suppose that you suffered strong irritation, under a supposed injury; but, admitting this, does it become a British soldier to sheath his steel in the bosom of an unarmed man?  Can such conduct be reconciled with that magnanimous terperament [sic] for which his Majesty's subjects stand pre-eminent?  Every man in whose bosom the pulsation of British blood is felt, will blush with shame at so grievous a departure from the natural feelings of his countrymen.  I feel for the reputation  the wounded honor of the distinguished regiment to which you belonged  seeing that they must be influenced on beholding the disgraceful example which justice requires should be made of you.  Your case painfully exhibits the dreadful consequences of drunkenness  a vice equally destructive of every generous and noble quality in man  the prompter of crime, the destroyer of human happiness  involving alike the soldier and the citizen in brutal degradation.  I do hope, continued his Honor, that the events of Sunday evening will have a salutary operation upon the general society of this Colony, the prosperity of which depends upon a proper observation of those ordinances which the wisdom of the legislature have enacted.  I am willing to believe, but I fear there is too much reason for suspecting that a supposed sense of superiority over some portion of his Majesty's subjects in this Colony, had its influence on your mind on the particular evening in question.  While it is proper to set a high value on an untainted character, yet those who do not stand on so proud an eminence in society must not be trampled upon or ill-treated.  The constraint persons of this description have to labour under, should rather excite motives of sympathy and compassion  not to take an advantage of their constrained situation, in order to ill use them; for such is at as direct variance with the peace of society, as it is opposed to the laws by which all of his Majesty's subjects are entitled to protection.  The Judges of this Court, after the most anxious consideration of all the circumstances of your case, marked as it has been with an utter disregard to human life, feel themselves bound, in the firm discharge of a public duty, to pass the severest sentence which the law has fixed in cases of manslaughter.

The sentence therefore of the Court is, that you, John Geeson, be transported to such penal settlement as his Excellency the Governor shall think proper to direct, for the term of your natural life.

The prisoner was then removed from the dock.

Notes

[1 ] For its report of the case, see Sydney Gazette, 1 September 1828; and for comments, its issues of  1, 3 and 10 September 1828.  In the latter, the Gazette responded to an attack by the Monitor on the jury's decision.  The jury consisted of soldiers trying soldiers.

[2 ] The Sydney Gazette 1 September 1828, reported that Dowling J. said:

"In point of law there is no distinction between principal and accessaries, in murder, as to legal responsibility, `for all are principals, and it is not material who actually did the murder' (Rex v. Wallis and others, Salk. 334).  Therefore `If A be indicted as having given the mortal stroke, and B and C as present aiding and assisting, and upon the evidence it appears that B gave the stroke, and A and C were only aiding and assisting, it maintains the indictment, and judgment shall be given against them all, for it is only a circumstantial variance, and in law it is the stroke of all that were present, aiding and abetting (1 Hale, 438. Plow. Com. 98, 9 Co. 67, b. Rex v. Macknally, 1 East p. b. c. 5, s. 121, p. 350).  Upon this principle it has been held that in the case of a duel in cold blood, not only the principal who actually kills the other, but also his second is guilty of murder (1 Hale, 442, 452, 1 Hawk. p. 6, c. 31, s. 31).  In order, however, to make an abettor to a murder, a principal in the felony, he must be present, aiding and abetting the fact committed.  The presence however need not always be an actual standing by within sight or hearing of the fact; for there may be a constructive presence, as when one commits a murder, and another keeps watch or guard at some convenient distance (1 Hale, 615, Fost. 350, 4 Bla. Com. 34).  But a person may be present, and if mot aiding and abetting, be neither principal nor accessary; as if A happen to be present at a murder, and take no part in it, not endeavour to prevent it, or to apprehend the murderer, this strange behaviour though highly criminal, will not of itself render him either principal or accessary (Fost. 350, 1 Hale, 439).

"With respect, therefore, to the two prisoners who are charged as accessaries to this alleged murder, assuming that a murder in point of law has been committed by the supposed principal, before you can convict them of murder, you must be satisfied that they were present aiding and abetting the fact charged to be murder.

"Before however you come to the consideration of the cases of the prisoners charged as accessaries, you will first have to determine whether there has been a murder, or that which in point of law amounts to a murder, committed by some one of the prisoners.

"The information charges the alleged offence to have been committed with malice aforethought, thus describing the offence in the technical language I which it is defined by law.  `The legal definition of murder is, the killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law.  Of this description, the malice prepense, malitia praecogitata, is the chief characteristic, the grand criterion, by whichmurder is to be distinguished from any other species of homicide.  It should however, be observed, that when the law makes use of the term `malice aforethought,' as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particular individuals, but as meaning that the fact has been attended with such circumstance, as are the ordinary symptoms of wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief (Foster, 256, 262), [sic] And, in general, any formed design of doing mischief. may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed; but also in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder (1 Hawk, p. 6, c. 31, s. 18; Foster, 257; 1 Hale 451, 454.)

"Malice may be either express or implied by law.  Express malice is, when one person kills another with a sedate, deliberate mind, and formed design; such formed design being evidenced by external circumstances, discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes, to do the party some bodily harm (1 Hale, 451, 4 Blac. Com. 199).  And malice is implied by law from any deliberate cruel act, committed by one person against another, however sudden; thus, where a man kills another suddenly, without any, or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause.  And it should be observed as a general rule, that all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears from circumstances of alleviation, excuse, or justification; and that it is incumbent upon the prisoner to make ou [sic] such circumstances to the satisfaction of the Court and jury, unless they arise out of the evidence produced against him.  It should also be remarked, that were the defence rests upon some violent provocation, it will not avail, however grievous such a provocation may have been, if it appears that there was an interval of reflection, or a reasonable time for the blood to have cooled before the deadly purpose was affected.  And provocation will be no answer to proof of express malice; so that if, upon a provocation received, one party deliberately and advisedly denounce vengeance against the other, as by declaring that he will have his blood, or the like, and afterwards carry his design into execution, he will be guilty of murder, although the death happened so recently after the provocation as that the w [sic] might, apart from such evidence of express malice have imputed the act to unadvised passion (1 East, p. c. c. 5, s. 12, p. 224.

"The writers, upon this branch of the criminal law, have divided cases of murder into different classes, which it is unnecessary for me on this occasion to particularize.  One, however, of these classes is cases of provocation, within which class, I think the case now under consideration may be treated as falling, although it certainly does not appear that the unfortunate man, who has lost his life, had given any the slightest provocation to the party by whom the mortal wound was inflicted.  Indeed, according to the evidence, he appears to have been an unoffending passenger in the street, at the time of the transaction in question.  In think, however, it may now fairly be collected, form all the circumstances of the case, that the person who inflicted the mortal wound acted under a supposition, in his blind fury, that the deceased had either himself, or was one of the persons who had given some provocation.  Viewing the transaction in that light, which in point of charity we may fairly assume to be the case, I shall inform you, what the law is, as applicable to such a state of assumed provocation.

"As the indulgence which is shewn by the law, in some cases, to the first transport of passion, is a condescension to the frailty of human nature, to the furor brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason; so the provocation, which is allowed to extenuate in the case of homicide, must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is committed.  All the circumstances of the case must lead to the conclusion, that the act done, though intentional of death or great bodily harm, was not the result of a cool deliberate judgment, and previous malignity of the heart, but solely imputable to human infirmity (1 East. P. 6. c. 5, s. 19, p. 232).  For there are many trivial, and some considerable provocations, which are not permitted to extenuate an act of homicide, or rebut the conclusion of malice, to which the other circumstances of the case may lead.  Though an assault made with violence, or circumstances of indignity, upon a man's person, and resented immediately by the party, acting in the hear of blood, upon that provocation, and killing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood, that the crime will be so extenuated by any trivial provocation, which, in point of law may amount to an assault, nor in cases even by a blow. - Violent acts of resentment, bearing no proportion to the provocation or insult, are barbarous, proceeding rather from brutal malignity than human frailty; and barbarity will often make malice.  By Lord Holt, Keate's case, comb. 408, an assault, though illegal, will not reduce the crim of the party killing the person assaulting him to manslaughter, where the revenge is disproportionate and barbarous."

[3 ] See also Sydney Gazette, 8 September 1828.

[4 ] Justice Dowling gave the following account of this point (Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 332):

"[Where a prisoner was found guilty of Manslaughter only upon an  indictment for murder, Held that the indictment would not conclude "Contrary to the form of the "Statute"; and that he may be sentenced under statute.]

"Saturday 6th September 1828

"Forbes CJ Stephen J Dowling J

"Rex v John Geason

"Manslaughter

"In this case Rowe for the prisoner moved in arrest of Judgment that as the indictment did not conclude against the Statute no judgment could be passed, clergy having abolished by the 7&8.G4.C.29.

"The Court was however unanimously of opinion that there was nothing in the objection, and I proceeded to pass sentence."

See Application of Criminal Laws Opinion, 1828 on the applicability of the new English criminal laws in New South Wales.

Published by the Division of Law, Macquarie University