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

R. v. Parker and Donavan [1829] NSWSupC 59

murder - Bathurst - confession - convict escape - Aboriginal evidence - capital punishment, public - capital punishment, dissection

 

Supreme Court of New South Wales

Dowling J., 25 September 1829

Source: Australian, 30 September 1829

Before Mr. Justice Dowling and seven Miltary Officers,[1 ]

James Parker was indicted for the wilful murder of John Haseltyne, at Bathurst, on the 30th Sept. 1828, with George Donavon, as an accessary before the fact.

The evidence in this case rested principally on the confession of the prisoner Parker to a companion who had been in the bush with him, but who surrendered to the mounted police, and now came forward to give evidence.  The first witness, Bernard Smith, a prisoner of the Crown, employed in a road party on the Bathurst road, from which he absconded in March last, deposed that he went to Dr. Redfern's station at Mount York, where, in about a fortnight's time, the prisoner Parker came.  Smith told him that it was rumoured among the men on the farm that he killed Kangaroo Jack, by which name the deceased was known; prisoner replied, ``if you knew how it was, you would think nothing of it;" Smith said ``he must be a very poor man to let you kill him;" Prisoner then said, ``after you left the employ of Dr. Redfern, I got six months to an iron-gang, and I took the bush from there, and went to a station where George Donovan, and Birmingham were shepherds, and Kangaroo Jack was hut-keeper: the shepherds were out with their sheep, and we consented to kill a bullock, and accordingly roped one which Kangaroo Jack knocked down, and I stuck with a knife; whilst we were cutting it up, the blacks came and took some of the meat, and went towards Mr. Grant's station; we then went to a station of Mr. Norton's, and there heard that the blacks had informed Mr. Grant about the bullock, and that he had sent for the soldiers to Cox's river; at Mr. Norton's station a man told me that Kangaroo Jack was a shipmate of his, and wondered that I would have any thing to do with him, as he hanged one man at home, and transported two; after this he went to another station of Dr. Redfern's, and stole some cattle, and hearing that he was suspected, and likely to be punished, he took to the bush; I went in search of him, and told him it was better that one of us should turn King's evidence about the bullock than both of us be hanged; Kangaroo Jack said we could not be hanged, as we had put the skin and brand away; I said the blacks' word would be taken before ours, and that we had better kill another bullock and produce the hide as that belonging to that which the blacks saw us cutting up; Kangaroo Jack said he did not care if we did so, and I then knew what he would do; in the evening we made a fire with some leaves and dry wood, and whilst Kangaroo Jack was on his knees blowing it with his mouth, I struck him on the head with a tomahawk; I did not kill him with the first blow; but I soon settled him after; there was no one in the bush at the time but him and me."

A second witness deposed to a similar effect, and others to the finding of the fractured skull and bones which were produced in Court.  To affect Donavon as a participator in the murder, there was no evidence.  After retiring for about five minutes, the Commission returned Parker as guilty, Donavon not guilty.  Sentence of death was then pronounced upon Parker in the usual form.

 

Execution, 28 September 1829

Source: Australian, 30 September 1829[2 ]

On Monday[3 ] morning three victims to offended justice graced the gallows erected in rear of the Count y gaol in George-street.  One a lad of about 19, named Parker, was tried in conjunction with another on Friday last, and, as described elsewhere, found guilty of murdering John Hazeldine, a fellow prisoner, who commonly passed under the name of Kangaroo Jack.  Parker's conviction, it will be seen, rested almost altogether on the testimony given by two men of questionable character, as to a confession being made of  the foul deed by Parker himself, and a conversation stated to have been overheard betwixt him and Donovan, in which some deed of blood had been adverted to.  There was nothing to shew that Donovan had taken part in the act.  Parker, almost to the last moment of his existence, peristed [sic] in denying the accursed deed; and indeed there were sufficient circumstances to raise a strong suspicion that the very two who had sworn Parker's life away were themselves the murderers.  The idea of his innocence produced a pretty general feeling in favor of the culprit.  For our part, various circumstances concurred to cause us to differ totally from this opinion.  The other two culprits were named respectively Grier and Penson -- the former being a tall athletic man, apparently about 30 years of age -- the later short of stature, sinewy, and rather bulky, did not seem to exceed 29.  Friday evening, and the whole of Saturday and Sunday, till the fatal morning, were passed by the three culprits, in the cell, (to which they were confined by strong and heavy chains round the ancles) with the penitence, prayer, and tribulation usual on such occasions.  Before nine on Monday morning, their irons being struck off, the three condemned wretches quitted the condemned cell, and proceeding along the platform in front of the felon's strong room, accompanied by the Clergymen, Under-Sheriff, Gaoler, and officiates in the gaol, with the executioner bringing up the rear, the awful train turned off through the central door, and parading the short passage which leads into the gallows yard adjoining, passed under the drop, where three coffins lay ready to receive the bodies, and halted when opposite the fatal pile -- in front of which a strong military Subaltern's guard was drawn up with fixed bayonets -- whilst other parts of the yard were occupied by a tolerably numerous group of spectators, and on the heights without the gaol, and overlooking the melancholy spectacle, was assembled, a dense crowd.  We were pleased to find that the ordinary attendance of the confines'-gang in irons, or out of irons, was judiciously dispensed with upon this occasion.  The frequent sight of capital punishments has invariably a tendency to harden the human heart rather than to lead it to reform.  After hearing their warrants read over, the culprits fell upon their knees.  The Reverend Mr. Hill, who attended in the absence of Mr. Cowper, read aloud such parts of the Church service as were peculiarly applicable to the gloomy occasion, and the Reverend Doctor Lang, Presbyterian Minister, who also attended, followed with the repetition of suitable extempore prayer.  It was an affecting scene, and drew tears from more than one spectator.  Grier's devotion was the most fervent and impassioned; Penson's, thought not less so, apparently expressed more of hope and confiding resignation; whilst Parker, whose youth and the idea which prevailed as to his probable innocence of the foul deed of murder, seemed rather to fix his thoughts upon this world than the next, and even to look forward at the last to a reprieve.  Rather strange to say, on the very morning of his fatal exit, we chanced to light amongst our English files upon the following record of Parker's former conviction.  At the Hertford winter assizes, before Mr. Baron Vaughan, in December 1827,  ``Charles Parker, a lad of seventeen, was indicted for a highway robbery on the person of John Crane, a lime-burner, of Ware, as he was returning from Hertford, on the night of the 20th of August.  The prisoner effected the robbery by the aid of another man, under circumstances of great violence, and stole the purse and watch of the prosecutor.  It was stated that, notwithstanding the prisoner's youth, he was an old offender, and at the head of a desperate gang who infested the neighbourhood of Hertford.  The Jury found him guilty, and he was sentenced to transportation for life."

When the extempore prayer had closed, the culprits rose from their knees.  Grier, with some emphasis, and not an inappropriate gesticulation, repeated aloud some verses of a hymn.  ``In mercy Lord to thee I pray;" which all three joined in chaunting, with voices rather musical than otherwise.  The executioner and his assistant now proceeded to tighten the pinions which held their arms, and the culprits turned to ascend the fatal ladder, which they mounted slowly and deliberately.  Having gained the drop, and communed for a few minutes with the Presbyterian Clergyman, the ropes were put over their necks, and tardily adjusted.  Before Doctor Lang quitted the fatal drop, Parker at length confessed his guilt of the murder -- his inexpressive countenance undergoing a perceptible alteration, and, for the moment, assuming a demoniacal turbidity and darkness.  As the finishers of the law were closing their preparations, and as the sound of their retreating footsteps died away on the ears of the condemned wretches, there was an awful pause.  At length, on a signal from the Under-Sheriff, the executioner laid hold of the protruding lever, and with a sudden movement withdrew the supporting prop.  Down fell the drop, with one short loud clap, and the culprits swung in pendulous agony.  The limbs of Grier, who was a tall muscular man, quivered horribly for some mintues [sic], owing to the shameful negligence, or inexpertness of the executioner's assistant, it would seem, for the rope had twisted round towards the nape of his neck.  Parker, to borrow the ordinary phrase, ``died easy; and Penson, after twirling round rapidly for a few moments, shewed but few contortions of limb.  The fatal ceremony over, the guard trooped away, and the assembled group gradually dropped off.

After hanging nearly an hour, the bodies were lowered into the rude coffins prepared for them -- those of Grier and Penson being conveyed away for interment.  Parker's to be anatomised.[4 ]  On removing the covering from the face of the latter, the countenance did not seem to have undergone any considerable change.  There was a frothing about the mouth, which remained slightly opened, and a livid hectic in the cheeks; but the agonised eye, though it exhibited the fixity of death, was open, bright, and keen.  The pericranium was not such a one as would induce us to turn converts to Gall or Spurzheim.

Three culprits are still in the condemned cells, and on the chain, the day of their awful exit not being yet announced to them.  The heavy chains which the legs of condemned malefactors are ordinarily loaded with, we think might very well be dispensed with, without offending justice or humanity.

 

Notes

[1 ] See also Sydney Gazette, 26 September 1829.

[2 ] See also Sydney Gazette, 29 September 1829.

[3 ] In this, 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, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.

[4 ] 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.

Published by the Division of Law, Macquarie University