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

R v Cook, Murphy, Bubb and Wilson [1831] NSWSupC 2

murder - Norfolk Island, conditions on - capital punishment

Supreme Court of New South Wales

Forbes C.J., 7 January 1831

Source: Australian, 14 January 1831[1 ]

FRIDAY, JAN, 7th.  John Cook, James Murphy, and William Bubb, were indicted for the wilful murder of Adam Oliver, at Norfolk Island, on the 25th October, 1830; and John Wilson as an accessary before the fact.

Edward Magennis, a prisoner of the crown, and called as a witness for the crown, said, "My Lord and Gentlemen of the Court, when my examination is over, I wish to say something."

Chief Justice  State what you have to say,

My Lord, When this transaction took place, I was in the gaol-gang loaded with heavy irons, and almost starved to death.  A man named Gascoigne, one of the overseers at the time, and who is here to-day as a witness, called me on one side, and told me, that if I did not implicate Wilson, and Murphy, as well as Cook, he would have me up to court and get me flogged; so, my Lord, as I was nearly at death's door at the time, I was afraid to refuse.  I thought it better to say nothing about it there, but to wait 'till I came up to this court, to expose the treachery and perjury of Gascoigne.

The Chief Justice  Then you mean to say, that what you swore against these men at Norfolk Island is false?

Witness  I do, my Lord, and I hope God will forgive me, as I did it out of fear, and intended to tell the truth when I came up here.

Henry Gascoigne an overseer, among others, deposed  In Oct. last, I was an overseer of the gaol-gang at Norfolk Island; the prisoners were in the gang; deceased was assistant overseer; on the evening of the 25th Oct. when the gang were returning from work, I was walking with the deceased behind, when he observed that the men were walking out of order, and said he would go forward and set them right; he did go forward among the gang, and shortly after I heard a noise, upon which I went up, and saw the deceased on the ground, and Bubb striking him as hard as he could with a spade; after this, I saw Murphy strike the deceased, somewhere about the head with a reaping hook; I went forward to strike him with a stick, when he ran after me; I escaped, and he threw the reaping-hook after me; after Murphy struck the deceased, he said, several times, "You br, I've settled you now."

This testimony was corroborated generally by other evidences.[2 ]

Mr. Ross, asst. surgeon of Norfolk Island, examined the body, and found a deep wound, extending from ear to ear, at the back of the head, which wound must have caused immediate death; there were several punctured wounds in other parts of the body.

The learned Judge summed up, concluding that Wilson was entitled to an acquital, as there was not a tittle of evidence to affect him.  Bubb and Murphy, guilty.[3 ]

Cook, Murphy, and Bubb were accordingly hanged on Monday last.[4 ]

Notes

[1 ] See also Sydney Gazette, 8 January 1831.  See also R. v. WelshAustralian, 14 January 1831; Sydney Gazette, 11 January 1831.  Welsh was found guilty of an assault committed at the island on the same day.  He said that it was notorious that prisoners on the island did not care what they said or of what they accused one another, in order to get to Sydney.  He was sentenced to death for this assault.  He had been convicted of a street robbery a year earlier, which led to his transportation to Norfolk Island.

[2 ] See Sydney Gazette, 8 January 1831 for details.

[3 ] According to the Sydney Gazette, 8 January 1831, Murphy declared that he was innocent, and Bubb also insisted on Murphy's innocence.  The Chief Justice said in his summary to the jury that Bubb and Murphy would have been guilty even if Cook's blow had been the cause of death, so long as they were engaged in one common object with him.

[4 ] For an account of their execution, see Sydney Gazette, 11 January 1831.

Published by the Division of Law, Macquarie University