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

R. v. Miller [1828] NSWSupC 100

murder, domestic violence, police, criminal defendants, insanity defence, capital punishment, dissection, Crown mercy, murder

Supreme Court of New South Wales

Dowling J., 28 November 1828

Source: Australian,  2 December 1828

Case of Murder.

The Court was considerably crowded this morning - the trial of Matthew Miller, the constable, for the alleged murder of his wife, being on the tapis, Mr. Justice Dowling presided.[1 ]  The murder was laid in the information as having been accomplished on the 9th of November last; about which time, as it appeared in evidence, the deceased and prisoner had been married about seven weeks.  The prisoner was a constable, and had been employed in that capacity for 16 years past.  After marriage, his wife and he, it was observed, frequently quarrelled; and the people of the house, belonging to one Moxam, in which they lodged, in Cockle Bay, remarked that on the day described, whilst the prisoner and his wife were thought to be up stairs at tea, the wrangling was louder than usual, and a hurried stamp, as of a women's foot, was heard, and female screams of murder, murder, followed by the exclamation "Miller, don't strangle me."  On hearing the cries and this ejaculation, one of the persons who were below hurried up stairs, and, knocking at the door, and asking it to be opened, the prisoner opened it, and coming outside, bid the person who had knocked, to go away, and take no concern in his business.  It was then remarked to the prisoner, that his wife had screamed out murder.  This he at first denied, but presently after admitted, declaring she had done so without occasion.  Shortly after this, the prisoner went down stairs, and lighting his pipe at the fire, and taking a few puffs of it, during which he seemed to be quite tranquil, and spoke rationally, the prisoner went up stairs again.  On re-entering the room, it was further deposed in evidence, prisoner and his wife had another angry altercation, and the wrangling continued for a full hour together, but nothing particular occurred to excite the attention of the people below, till between three and four o'clock in the afternoon, when the sound of a female voice again became audible.  It was recognized as the voice of the deceased, crying, in a smothered tone, "don't strangle me Miller, don't strangle me."  This was succeeded by a noise as of a person convulsed, and bursting for breath; to which, after a moment or two, a deep silence succeeded, and no one seemed to be stirring, till the evening had become further advanced.  It was between eight and nine o'clock, when the prisoner came down stairs, bearing in his hands a quart pot and a candle, which he lit, and filling the pot with water, from a bucket, returned up stairs with this supply of water and the lighted candle - nor did he make his appearance for that night again.  On the following morning, the people who occupied the lower part of the house got up, when, finding neither prisoner nor deceased stirring, they were called to, and the door was knocked at several times, but no answer being returned, the calls were repeated, and silence still continuing to reign within, the neighbours suspecting something wrong, forced open the room door, which was locked on the inside, and the key removed, when the woman was discovered stretched in her clothes on the bed.  They called to and felt her body, but her limbs were cold and stiff, and death, it was evident, had been there.  Prisoner could not be perceived any where about the room or the house.  The neighbours raised an alarm - despatched a messenger for medical aid, and Doctor Bland shortly after came - he viewed and felt the body, and pronounced all human aid needless..  The ill-starred woman was sleeping the sleep of death.  There was a constable's staff lying under one of the chairs in the room.  The deceased was much younger than the prisoner.  One of the witnesses, a female, named Parrott, had known deceased for some time.  She always considered her to be a sober, honest, and industrious woman.  She could not say whether or no Miller had gone out during the day to buy a Sunday's dinner, but he was never seen in the house after his lighting a candle and carrying a pot of water to his room, on the night of the 9th November.

From the evidence of Doctor Bland, the physician who had been called in to visit, it would appear that gentleman found the deceased laying in bed on her back, rather inclining towards the left side - the face particularly directed so.  The fingers of both hands were half clenched, and the frame much discoloured in various parts, and rapidly hastened to a state of decomposition.  From every appearance, Dr. B. was induced to conclude that life had been extinct for some hours previously.  On the right arm and hip there were several bruises, as if of blows with a stick.  The throat and right side of the ear shewed a contusion, and every thing bore evidence of death having been brought about by violent external means, such as strangulation.  The body was a good deal bloated, and the intestines bore every appearance of the deceased having been an intemperate drinker.

From the evidence of Chapman, lately a runner attached to the Police, whose evidence was in some points corroborated by that of the chief constable, it appeared that the prisoner was taken by a private soldier between Liverpool and Sydney, and confessed to Chapman, as well as by his subsequent admission to the chief constable, that he had been the cause of his wife's death, describing the manner of this, by clapping both hands on the throat, and appearing to attribute it to the effects of jealousy - the deceased having formerly lived with one man, and being suspected still to have more than one paramour.  The prisoner, it was observed by the chief constable, Mr. Jilks, had always been quiet and steady, and well conducted, till his marriage with the unhappy deceased, when he became an altered man.

Pearce, a Sydney constable, described his meeting with Miller about ten days before his wife was found dead, when dispatched in quest of him by the chief constable, at Woolloomooloo, without a hat, in a desponding and broken hearted state - he seemed to court solitude and silence - he was altogether sunk in thought, and was tearing up some small shrubs that grew about.  At last, after considerable entreaty, he exclaimed in a tone of anguish, "my wife has been the ruin of me."

Several most respectable witnesses, amongst whom were Messrs. J.T. Campbell, W.H. Moore, George Allen, and Simeon Lord, came forward to give the prisoner an excellent character, having known him, some for ten and twelve, and others for fourteen years past, and the case both for and against the unhappy prisoner being closed -

The learned Judge proceeded to charge the Jury upon the evidence - explaining the law of murder - and leaving it with them to deliberate and decide upon their verdict.  After about ten minutes consultation in their room, the Jury returned into Court with a verdict of - Guilty.

Upon the announcement of this vidict, [sic] silence was proclaimed throughout the Court, and the prisoner being asked if he could plead why judgment should not be then and there passed upon him, and continuing silent -.

Mr. Justice Dowling, having assumed the black cap, proceeded to address the prisoner in he terms following:-

Matthew Miller - You have been indicted for the wilful murder of Mary Ann your wife, and on your trial have put yourself upon God and your country, which country has found you guilty.  It is impossible that any dispassionate person who has heard your trial, can entertain a doubt as to the propriety of the verdict which the Jury, after the most patient and anxious consideration of the whole circumstances of your case, have pronounced.  No well constituted mind can question the justice of that dreadful sentence which it becomes my painful duty to pronounce upon you.  You have been found convicted, upon the clearest evidence, of one of the grossest crimes which human nature can perpetrate.  Your crime is one of no less a magnitude than that of wilful and deliberate murder - a crime which, in all ages and in all nations, has been held in the greatest abhorrence; for, however mankind may differ in opinion as to the severity of the laws for the protection of property, or may have differed in opinion on other matters, they have universally concurred in one sentiment concerning the demerits of this atrocious crime - as if all were witnesses to the promulgation of that divine precept, which says, that "whosoever sheddeth man's blood, by man shall his blood be shed."  But this crime, great as it is, nevertheless is capable of several aggravations.  In your unhappy case there are circumstances developed, which must call forth the strongest emotions of every person who has heard your trial.  The unhappy person whose death you caused, was the partner of your bosom - of your bed.  You chose her for your helpmate - with all her infirmities and failings on her head.  At the altar you swore to protect, to love and to cherish her.   Scarce five weeks had elapsed when you dipped your hands in her blood.  This woman was your wife and claimed every tender protection and humanity from you, as well as to protect her person from violence at the hands of others.  Unhappy man - I hope that I have no need to persuade you, to employ the short time you have to live in this world, to make your peace with God.  I fervently trust that you own compunctions of conscience, ere this, have brought you to a proper sense of your awful condition.  But should this unhappily not be the case, and you have not yet reconciled your mind to the awful change which awaits you, by being ushered in a short time out of this into eternity - let me warn you to defer the work of repentance no longer.  The laws give institutions to society which, whether in a civil or a savage stage, deem it necessary that your offence should be expiated by nothing short of life. -  But I trust you are already sensible of the dangerous precipice on which you stand - a few short hours and your mortal career will terminate for ever.  Those objects which deluded your senses and which tempted your passions, will then no longer be visible to your right, or capable of inciting those passions which tempted you to embrue your hands in human blood.  That glorious luminary which lights all creation in existence, will no longer light on you.  On Monday next you will be ushered into the presence of an all omniscient Being.  There no subterfuge will avail - no disguise will answer to screen you from the penetrating searcher of all hearts, to whom every secret is known.  If, unhappy man, you have not already warned yourself of the dreadful situation you stand in at this moment, let me now entreat you to shut out from your mind all thoughts of this world - let me advise you to prostrate yourself upon your knees, and endeavour by hearty and sincere prayer to the throne of grace, to make your everlasting peace with an offended Divine Majesty.

In this work of penitence you will have the assistance of a worthy pastor.  I recommend you to open your heart to spiritual devotion, which can alone save you from those terrors which we are taught await the wicked.  I trust the ignominious example, which justice requires should be made of you, will have a proper effect in arresting guilty passions, and that there will be those who will learn from your unhappy fate, the fatal consequence of setting the laws of God and man at defiance, which not only exposes them to severity of justice in this world, but also to the avenging wrath of Heaven.  Unhappy man!  I would have saved these admonitions; but a duty to yourself, and the duty I owe to my situation, I could not restrain myself from doing so.  I trust you will submit to justice with contrition, and I trust that contrition will meet with forgiveness in a future state.  It now only remains for me to pronounce on you the dreadful sentence of the law, which is, that you, Matthew Miller, be taken from hence to the prisoner from whence you came, and that on Monday forenoon next you be thence taken to the common place of execution, and be there hanged by the neck until your body be dead, and that your body be afterwards taken down to be anatomized and dissected,[2 ] and may God in his infinite mercy have compassion on your soul.

This solemn and eloquent appeal of the learned Judge produced a general sensation of compassion throughout the crowd towards the prisoner, who was removed from the dock to the condemned cells in the gaol, there to spend the interval preceding the last awful act on Monday morning, which is finally to ind [sic] up his concetns [sic] with this world.[3 ]

 

Source: Australian, 2 December 1828

REPRIEVE OF MILLER.

Miller, the culprit, who was convicted in the Criminal Court on Friday last, for the wilful murder of his wife, has been respited from the capital part of the sentence then passed, which directed his execution to take place yesterday morning.[4 ]  The conditions of the message communicated to the unfortunate man, on the visit of the Sheriff and the Registrar of the Supreme Court, on Sunday evening, was, that he was "respited till further orders."  The unhappy man has been induced to indulge hopes that this capital sentence will be commuted.  He still pays considerable attention to the instructions and exhortations of his clergyman; and, in other particular, exhibits the deportment of a man tottering on the brink of an awful eternity, cheered on by hope, yet prepared to await the worst behests of fate.  Miller was, for fourteen years, a soldier in the German Legion; and has spent sixteen years of his life as a constable in this Colony.  A petition, very numerously subscribed by signatures, it is said from between two and three thousand, were obtained in six-and thirty hours from the conclusion of his trial.  Miller, whilst he acknowledged having been the agent of his wife's dissolution, all along declared it was not his intention to commit murder. - His orderly and peaceful habits of life, of which there has been abundant evidence, go to support the probability of this, and induce a more general feeling of commiseration, on his side, than people commonly allow in respect of men who stand in the situation of a murder.  His character and services make the man certainly a subject worth of commiseration and clemency.

Notes

[1 ] On 28 November 1828, the  Australian reported that "The trial of Miller, the Sydney constable, is to be brought on in the Criminal Court to day.  A plea of temporary insanity has been put in by the prisoner on the side of the defence."  This trial was also reported by theSydney Gazette, 28 November 1828.

[2 ] Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer be hanged in chains.  If he did not order that,  then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial.  The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9.  He argued that the purpose of criminal punishment was deterrence, not retribution.  As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment.  In England, this led to riots against the surgeons: Peter Linebaugh, ``The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.

[3 ] The Sydney Gazette, 1 December 1828, thought the jury could "not do otherwise than find the unfortunate man guilty, but there never was a case which excited greater sympathy with the Public, inasmuch as it is pretty universally believed the man never intended to destroy life."  It then announced that he had been granted a reprieve.

[4 ] On the exercise of Crown mercy, see Sydney Gazette, 24 March 1828.  On this case, see also Australian, 9 December 1828.

The governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason.  In the latter cases, the final decision had to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645.

Ultimately, Miller was sent to Moreton Bay: Sydney Gazette, 24 February 1829.  In a despatch dated 30 July 1829, Murray informed Governor Darling that the sentence had been commuted to transportation for life at a penal settlement, the most severe punishment short of death.  In recommending that, Peel nonetheless said that he thought that the sentence of death ought to have been carried out in so aggravated a case of murder.  Source: Historical Records of Australia, Series 1, Vol. 15, p. 90.

This suggests that when the colonial governor respited the sentence of a murderer, the British government would not overturn the governor's initial decision not to hang the prisoner even when it thought that the decision was wrong.  If this is so then in practical terms, the decision whether to hang a prisoner was made by the governor.  In formal terms, the governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason.  In the latter cases, the final decision was in law to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645.  Law and practice were not the same.

Published by the Division of Law, Macquarie University