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

R. v. Wright [1829] NSWSupC 70

military defendants in crime - murder - Norfolk Island - convict escape - convict punishment - convict mutiny - jury, military - self-defence

 

Supreme Court of New South Wales

Dowling J., 9 October 1829

Source: Australian, 14 October 1829

AFFAIR OF CLINCH AT NORFOLK

ISLAND.

CRIMINAL COURT.

FRIDAY.

Mr. Justice Dowling having entered and taken his seat about ten o'clock in Court, which gradually became much crowded, a considerable proportion of the audience being military, the usual formula of swearing in a Commission, reading over indictment, and so-forth, ensued.  Three officers of the 57th, two of the 39th, and two on half pay, composed the Commission.[1 ]

The Clerk of the Court next read aloud the indictment of 

Edward Wright, Captain in his Majesty's 39th regiment of foot; for the wilful murder of Patrick Clinch, a prisoner of the crown at Norfolk Island, on 20th October, 1827; and for aiding, abetting, assisting, and councelling [sic] Dennis Tunny, serjeant [sic], and Dennis Reid, private in the same regiment, to slay the said Patrick Clinch, --- to which in a firm tone of voice the prisoner pleaded not guilty.

Mr. Wentworth opened the case for the prosecution in words pretty nearly as follows:-

``May it please your honor and gentlemen of the Jury, I cannot address you on the present occasion without feeling it to be the most difficult task that ever devolved upon me through the whole course of my professional career.  The duty which devolves upon you, gentlemen, is equally unpleasant, but I am sure it will be discharged faithfully.  The offence of which the prisoner stands charged, is one of the gravest character.  Gentlemen, I am not afraid of any bias on your minds, but the fear of being suspected of such bias may be injurious to the prisoner.  The only object of the prosecutor is to attain the ends of public justice.  If after the evidence has been gone through with, you should entertain any doubts, you will give the prisoner the benefit of them.  The evidence to be produced in support of the necessary allegations will prove, notwithstanding the prisoner was not present, that the death of the prisoner Clinch originated through his orders.  It will appear by evidence that a few minutes after the prisoner Clinch had been taken into custody, the prisoner ordered two of his corps to go and do their duty, asking them if they knew what their duty was.  It will also be made to appear, that they went to the place where the prisoner was lying, surrounded by men, and shot him.  Gentlemen, if I prove these allegations, with them I am confident you will not swerve from the discharge of your duty.

I shall now lay the case more fully before you.  It will appear in evidence --- the prisoner Clinch, some days previous to the transaction in question, ran away from he settlement, and while at large made some desperate attempts on the lives of several people, and that while the prisoner at the bar was walking out, Clinch made a charge upon him, no doubt, with an intention of causing him bodily injury, or of taking away his life.  On prisoner's returning home, it will be proved, that he was heard to say, blood required blood, and he would have it.  The attempt on prisoner's life, no doubt, excited a bad feeling against the man.  A few days after, while sitting in the government-house with Lieutenant Cox, they heard a disturbance, and called out the guard.  Prisoner taking a party with him went to ascertain the cause of riot, and left Lieutenant Cox with orders to come to his assistance, if he heard a bugle blown.  At the time this alarm was given, I will prove (continued the learned gentleman) that it proceeded from the hospital where the prisoner Clinch had come, and where he frightened a man named Gorman, and that it was he who shouted.  The object of Clinch's going there, was, he stated, to take some government property, perhaps a blanket, to shield him from the inclemency of the weather.  But, gentlemen, it is immaterial whether he went to rob or to kill Gorman.  Several men were present at the death of Clinch.  Among them was a man named Smith, since dead, and others, severally named McCabe, Howell, and Burke.  They saw Clinch endeavouring to escape from the hospital, when a running fight took place.  Clinch was armed with a pole, bearing a knife at the end of it.  To effect his escape, he had to cross a creek.  The pursuing party was therefore enabled to intercept and arrest him alive.  In securing him they cut off two fingers, and beat him on the head and body so desperately, that he roared for mercy, and fell completely exhausted.  Gentlemen, I take it if the man had met his death in the hurry of pursuit, the killers would have been justified, but yielding and being killed afterwards, the offence has become murder.  McCabe will prove that he told he prisoner, Captain W. of the capture Clinch, upon which the prisoner dispatched Daniel Tunney and Daniel Reid, saying to them, `do you know your duty' - that they replied `yes,' and then that prisoner said `mind you do it.'  They then went (continued the learned Counsel) to where Clinch was lying, and ordering the people out of the way, who surrounded him, fired at him, first one shot, and then the other.  A short time after the prisoner came up and applauded them, saying they had done their duty, and ordered the body into a barrow to the hospital, and when arrived, said jocularly to the Doctor, `can you do any thing for him.'  After the deed had been done, the prisoner, it would be proved, had returned quite elated to the garrison, and in high spirits, on the death of the man, and said we have done for him in the swamp - no doubt feeling happy that the man who had attempted his life was dead.  Gentlemen, the prisoner took care he would not be present at the transaction.  He said when he saw the body, `it is better you had done it than I.'  I will prove that after he had given his orders to the two soldiers, he proceeded to the quarters of the civil officers, which, by the plan I hold in my hand, lay towards the further end of the Island.  It is impossible to conjecture what his object could have been, unless to impress on their minds that he had no hand in it, and he even asked them what shots had been fired, feigning not to know the meaning of the firing.  The next day he said to Lieutenant Cox, `I have given a pound to Meehan to create a diversion.'  Lieutenant Cox said `they say he is not the man.'  `O,' (replied the prisoner) `never mind, never mind.'  This, with his conduct at the civil officers quarters, shews on whom he wished to throw the onus.  Gentlemen, these are the simple facts of the case.  It is not contended, nor can it be, that a mutiny existed on the Island.  It will, however, be impressed upon your minds, that such was the case, and that such an example was necessary.  Gentlemen, do not think that would make out a justification for such an act as this, to instil terror into the minds of these persons.  Why not have sent Clinch to this Court to have taken his trial.  There were officers enough even there to have tried the man, at such a period.  When the man's fingers were cut off, when he cried for mercy, and was knocked senseless, what pretence did there exist for shooting the miserable being like a dog.  Gentlemen, I am satisfied from evidence and from affidavits, that no mutiny existed.  I shall call Lieutenant Cox, who was at the time second in command to prisoner, who will prove that there was even no disposition to mutiny.  I am satisfied the statements which I shall lay before you will have due consideration.  Gentlemen, the case of the prisoner at the bar appears more like the case of Governor Wall than any other to which I can at present refer you.  Gentlemen, I shall only add, if after a due consideration of the case on one side and on the other, you are of opinion there was any immediate danger of a mutiny; that Captain Wright had not time to give the man a trial.  If you are of opinion the circumstances were so cogent, then you will be bound to give the prisoner the benefit of such an opinion."

Having nearly thus stated the case, the learned Counsel proceeded to call witnesses.

Lieutenant Charles Cox deposed, that he was at Norfolk Island on the 20th October, 1827, in the capacity of Magistrate and Assistant Engineer, where he messed with prisoner.  While they were sitting after dinner on the evening in question, between eight and nine o'clock, hearing a noise in the prisoner's camp, and a shot fired in the stockade, witness said what's that.  Captain Wright got up, and took the candle, which went out, requesting witness to light it, which witness did.  Three times witness said I will not light it any more.  I must go to the soldiers, to whom witness went, and found them turned out.  Captain W. came up a short time after, and after making some enquiries, ordered 30 men to file off from the right, to fix bayonets, and load, and proceed to the place whence the noise proceeded.  Witness heard no noise in the camp at the time, but there was a report abroad that the prisoners were surrounding the place.  Witness heard a buzzing, when Captain W. ordered the men to load.  Witness said don't waste the ammunition, but if you will let me go I will see what's the matter.  Witness was not allowed to go.  Captain W. ordered him to remain, and if he heard the sound of a bugle, which he carried with him, witness was to come to his assistance.  Witness went out in front of the government-house to listen, and about half an hour after prisoner left him, heard four shots fired, and saw the flash.  About half an hour after this witness saw prisoner, who said they had settled Clinch, and that he had had him wheeled off to the cell yard.  Captain W. mentioned Clinch's name, and appeared to witness rather pleased that the man was killed.  After this witness and prisoner had some punch together, and talked over the affair.  Prisoner told witness that Clinch had made resistance.  Next morning witness saw the body of Clinch brought out and placed on a platform in an area used for church service.  The body was pierced with four gun shot wounds.  The head was bruised and battered, and the left hand nearly cut off.  Captain Wright addressed the prisoners as follows: ``Prisoners, you see the body of Clinch before you.  You see what he has brought himself to, through his conduct.  What, even if you were to take the Island, what benefit would you get by it.  All the benefit you would get would be an idle life for two or three months.  A vessel would then arrive - the signal would not be answered - the vessel would return to Sydney, and a force sent that would take you all prisoners and you would all be hung."  Before this event, Captain W. had told witness that Clinch had made an attempt upon his life, and that he had great difficulty in escaping, and that he had sent a party in chase of him, and was about telling witness the orders he had given them, when witness told him he had better not, as if any thing happened he might be brought up as a witness against him, and that if he shot the man he would have to answer for it in the Supreme Court, for although the man was a prisoner of the crown, he (Captain Wright) was not justified in shooting him; owing to which prisoner did not tell witness the orders he had given.  After the death of Clinch, prisoner told witness that he had given Meehan a pound note.  Witness enquired for what? he was answered because he had done his duty so well.  Witness replied, I understand Meehan is not the man.  Prisoner said, ``O never mind, it will throw it off the shoulders of the right person."  Witness never observed any appearance of insubordination amongst the prisoners on the Island.  If one man only had been opposed to Clinch, witness, thought it might have been justifiable to have shot him but with the number of prisoners that had been ordered out against him, it was certainly a most extraordinary measure.  Witness told prisoner that shooting men in the way described would not answer.  Witness and prisoner had frequent misunderstandings.

On cross-examination by Mr. Rowe, witness stated that an examination respecting the death of Clinch had taken place at Norfolk Island, but that no person was committed for trial.  That the minutes of the case ought to have been forwarded to the Governor, or Attorney General.  That witness in consequence of the representation of prisoner, respecting Clinch, advised him to tar the body of Clinch over, and hang him at the yard-arm, and not to think that witness would give him any advice that he would not take himself, and be equally responsible for the act.  Witness further persisted, that he did not believe the Island to have been at the time alluded to in a state of mutiny, and that he never taunted prisoner about taking his trial or holding up his hand.  Witness would not injure prisoner by giving false testimony.  He and prisoner differed on legal points, but witness persisted that he did not suspect any mutiny on the part of the prisoners.

John Cavenagh, a prisoner of the crown, was at Norfolk Island in 1827.  Knew Pat. Clinch, and saw the constables in pursuit of him on the night in question, observed several of the military pass, and a short time after heard a voice say stand clear, when some shots were fired, but could not say how many; saw the body next; it was bruised and battered, and some of the fingers were off.

On his cross-examination by Mr. Norton, witness stated that he did not consider the blows and bruises would have caused death --- that he had been ten months in the hulk, and did not know what he had been brought up for.

Edward McCabe,[2 ] another prisoner of the crown, had been an overseer at Norfolk Island at the period of  Clinch's death - apprised prisoner of Clinch being in the hands of the constables who were in pursuit of him, upon which prisoner ordered serjeant [sic] Tunney to take a file or two, and obey his orders.  Went in obedience to the commands of prisoner to ascertain what had been done.  Heard the report of a musket, and presently after a second.  Subsequently beheld the dead body of Clinch, whose fractured skull a soldier struck with the butt end of his musket, for which prisoner called the soldier a scoundrel, and commanded the party to fall in and do things soldierly.  Heard prisoner ask if all were satisfied.  The affair occurred within twenty yards of the camp, the prescribed distance beyond which a garrison order directed no prisoner to venture without due leave, under pain of death - in his (witness's) opinion, this place was double the distance.  Prisoner said the distance need not be measured if witness was satisfied.  On cross examination witness, admitted he had been repeatedly flogged.  That his lashes never equalled four hundred at a time.  That he never conversed with Lieutenant Cox about Clinch's death, and that he had seen an instrument resembling a club, about three and a half feet long, armed at one end with a knife seven inches in haft and blade, reported to have been used by Clinch, but could not find out that any of the military had been wounded by means of it.

Adam Oliver, a constable at Norfolk Island during the above period, swore he assisted a corporal of the 57th, to capture Clinch, who was armed with the club already described, and defended himself with vigor [sic] till after being struck at and knocked down several times, when utterly defenseless [sic], sergeant Tunney and two privates appeared, and calling to witness and the others to stand back, fired at Clinch, who fell in a sort of creek, about twenty rods from the camp, and fifty from the house of the Commandant.

William Bruce, watchman, was one of the party who captured Clinch.  When quite secured, from five to seven minutes after being disarmed, and as he lay entirely at the disposal of the party, the prisoners on the Island not having shewn the slightest disposition in the world to interpose for him, the soldiers appeared as described, and crying out if that was Clinch, bid the party stand clear, when they fired, and shot the defenceless wretch.

Charles Davy was a patient in the hospital, whither the dead body of Clinch was brought, and tumbled out of a barrow on the floor.  Prisoner said, addressing the Surgeon, Doctor, if not too late, restore him, and let him take the course of law.  Another witness, named William Holt, deposed that the prisoners on the Island had evinced no disposition whatever to mutiny.

Jeremiah Gallivan, a private soldier of the 29th, deposed that it was he who called on Clinch surrender, to which the latter replied with threats against the life of witness, some of whose comrades he could not swear who, seeing witness's danger, shot Clinch then and there.  Heard prisoner, who was about three hundred yards behind, exclaiming - ``sergeant do your duty," and on coming up in about ten minutes, ask how far distant they were from the camp; on which, and ascertaining it was beyond the prescribed distance, prisoner added that the soldiers had done their duty, and warned them, that any prisoner taking to the bush should be served in a similar way; and that about a fortnight previously, the garrison had turned out under arms, expecting a mutiny and attack from the prisoners.

-- Tunney, sergeant of the 39th, deposed, that finding Clinch contending against Corporal Meehan, whose life he considered was in danger, and not knowing the people who stood round were constables, but that they were assisting Clinch against the corporal, called --- ``stand away rascals, or I'll shoot you," and instantly, with the private, Daniel Reid, who accompanied him, fired within eight yards distance at Clinch, who fell dead.  After this Captain Wright came up, and ascertaining the deed was done within more than fifty yards of the camp (thirty being the forbidden distance) applauded the soldiers for having done their duty, and hoped the prisoners would take a wholesome caution from it.  Understood the order of the prisoner to witness to attend to the admonition --- ``You know your duty," referred to the established rule of firing on a runaway resisting or refusing to surrender, and that under this order, and conceiving one of the soldier's lives to be in danger, he had shot Clinch.  McCabe had not told prisoner in witness's presence that Clinch had surrendered.  Thirty men, witness was sure, had not been ordered off by the prisoner.  Daniel Reid, private in the 39th, on setting out with Sergeant Tunney, heard prisoner say, sergeant, ``do your duty  you know your duty."  Saw Clinch fighting with Corporal Meehan, whose head appeared to be cut, and tussling against the whole party, sometimes kneeling, at other times groping on his hands and feet amongst the rushes.  There did not seem to be any chance of his escaping.  Heard no caution from Tunney to the constables to stand off, but fired at Clinch, as witness thought, in execution of his duty.

Here Counsel for the prosecution, Mr. Wentworth, agreed to close the case, and sat down.

Mr. Justice Dowling having complimented the learned Counsel on the extremely delicate, proper, and able manner in which he had conducted the case, put it to the officers in the jury-box, without going into evidence, which he deemed conclusive for the prisoner, to record their verdict.[3 ]

 

NOT GUILTY was pronounced, with scarcely a moment's hesitation, and Captain Wright was instantly discharged from the bar.  The Court then adjourned, it being nearly eight o'clock.[4 ]

 

Notes

[1 ] For commentary, see Australian, 14 October 1829:  Hall, the editor of the Monitor, made the  initial complaint about this killing.  A sergeant and a private soldier were first charged and held to bail, until Wright, the commanding officer at Norfolk Island, came forward to be tried in their stead.  The soldiers had merely followed his orders, Wright said.  The Australian noted a number of oddities in the trial.  Wright had been a member of the criminal jury many times even after the death of Clinch, including being a juror on a prosecution against Hall, who was his own virtual prosecutor.  Two members of Wright's own regiment were on the jury for his trial.  The witnesses were also men who had previously been held to bail for manslaughter, and were the immediate instruments of Clinch's death.  Hall later sued the editor of the Sydney Gazette for libel over this issue: see Hall v. Mansfield (No. 3), 1830.

In its usual way of favouring authority, the Sydney Gazette, 10 October 1829, described Wright as a "gallant officer".  On 13 October 1829 it said "never was so grave a charge so miserably supported".  On 15 October 1829, commented on the case again, saying that it had placed Wright under unnecessary stress, only to break down when a witness "bears down all that had been previously brought against him ...The prosecution broke down with its own weight of trash."  The fact that the prosecution barrister admitted that it had broken down was Wright's victory.  There could be no suspicion of a biased jury, the Gazette claimed. The Gazette's report of the case was published on 13 October 1829.

See also Historical Records of Australia, Series 1, Vol. 15, p. 245 (British government requesting information about the case).  Governor Darling sent a despatch to Murray about this case on 21 July 1830 (pp 594-599).  The Monitor had published an adverse article about it, claiming that there had been a cover up.  The governor, however, said that "the Trial of Captain Wright was the result of as foul a conspiracy as was ever engendered."  The conspirators included Lt Cox and the convicts.  Cox had earlier been brought to a Court Martial by Wright.  Governor Darling said that Cox was a tool of a faction which included Hall, the editor of the Monitor, Wentworth and Robison, and that Cox was not of a sound state of mind.  Dowling also sent a report of the trial, which was much longer than those published in the newspapers.  See also Darling to Murray, 27 July 1830 (pp 626-627).  On behalf of the British government, Viscount Goderich replied to the despatch of 21 July 1830 on 23 December 1830.  He said that Wright should be informed that the British government considered him completely free from the remotest suspicion of wrong doing in the death of Clinch (p. 863).

In 1830, three other soldiers were tried and acquitted of murdering a man in custody: Sydney Gazette, 14 August 1830.

[2 ] McCabe was committed by the magistrates to stand trial in the Supreme Court for perjury over his evidence in this case: Sydney Gazette, 31 October, 26 November 1829; Australian, 21 November 1829.  The Sydney Gazette thought that the magistrates should have had jurisdiction to try him themselves: 26 November, 1 December 1829.

[3 ] The Sydney Gazette, 13 October 1829, said that the "Learned Judge then told the Jury that Mr. Wentworth had done himself infinite honour by the manner in which he had presented this case to their notice.  He now candidly admitted that the evidence did not sustain it, that it had broken down under him, and it was their duty to dismiss the accused with honour from the bar by saying he was Not Guilty."

[4 ] For a similar, quick acquittal of a fellow officer by a military jury, see R. v. Lowe, 1827.

Published by the Division of Law, Macquarie University