Skip to Content

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

R v Young, Hooper and Battie [1831] NSWSupC 4

murder, prosecution of gaoler - death in custody - manslaughter - convict punishment

Supreme Court of New South Wales

Dowling J., 14 January 1831

Source: Sydney Gazette, 15 January 1831[1 ]

CHARGE OF MURDER.

Robert Young and John Hooper, were indicted for the wilful murder of John Mason, by strangling him with a rope, at Newcastle, on the 6th of July last; and Francis Batty, as accessory before the fact, at the time and place aforesaid.

Philip Josephs - In July last I was a turnkey in Newcastle gaol; I remember a man named John Mason being received into the gaol on the 6th of July last; I received him from the prisoner Hooper; he was to undergo a corporal punishment of 100 lashes; he had not been in my charge long when I missed him, and suspected he had gone down into the privy; I sent for assistance, when a man named Patrick Kelly came round, and I mentioned the circumstance to him; Batty, at this time, was in the gaol-yard, and I told him what I suspected; while we were talking, Mason spoke in the privy, and asked to be assisted to get up, which we afforded him, and he was then taken out of my charge by Hooper; in about an hour after, I saw him in the strong-room, hanging to a beam by a rope round the neck, and handcuffed; I ordered him to be cut down, which was done by a man named Burtonshaw; he appeared to be dead, for I threw some water in his face, and he never moved; I immediately sent off for Dr. Brookes, who shortly after arrived, and said the man was dead.

Cross-examined by Mr. Rowe - I was in the room when Dr. Brookes arrived; he endeavoured to bleed the deceased; Dr. Brookes has been subpoenaed, but is not here to-day; I can't say what the deceased's intention was in going into the privy; I do not know that his intention was to destroy himself; when he was taken out of the privy, he said he intended to get away; I think he could have hung himself to the beam where I found him; I tried and found I could, in the same way, had I wished; I tried with handcuffs on, in the same way I found the deceased; and satisfied myself that I could effect self-destruction in the same way I found the deceased; Hooper was turnkey in the  in the gaol for about three years, and was particularly attentive and strict in doing his duty for the last nine or ten months; I mean that he was more attentive to his duty than formerly.

By Mr. Williams - The vault of the privy into which the deceased man went was a place where a man might have suffocated himself; it was necessary to remove one of the boards, and hand him a rope to enable him to get out; he could not make his escape that way; formerly, when prisoners were to receive 100 lashes, the surgeon used to attend, but latterly not; Young was the scourger, and came to the gaol that day to flog the deceased; I do not know that a message was sent to Dr. Brookes to attend; in the room where the deceased was, there was a post to which persons sentenced to be flogged are tied; it is in the middle of the room, and the deceased was found three or four feet from it; they could not flog a man at that place with any propriety; I have seen prisoners flogged at the post, but never where the deceased was found; I had known the deceased for three or four years, and I believe he was flogged once or twice before, but I did not see it myself; I always considered him sane, but some persons used to call him ``Cranky Jack;" I have known Young about six years, but I do not know much of his habits one way or the other.

By the prisoner, Batty - The deceased was hanging two feet under the berth-boards, and suspended from a beam above; I cannot say where you were when I found the deceased.

By the Court - I told Mr. Batty at the door of the strong room that the man was dead; ``Dead!" said he, and seemed very much susprised; I believe he sent for Dr. Brookes directly; I have known him as gaoler, and always considered him a very feeling man; I do not think he would any ill-treatment to a prisoner if he knew it; the deceased never received a lash.

By a Juror - The deceased could have saved himself from strangulation where I found him, by standing on the berth: if the man had been flogged, it was the duty of the gaoler and one of the turnkeys to have been present; I could have heard an outcry in the room where I was, had a man been suffering; I could have heard the cry of ``murder" had it been made.

Re-examined - If the deceased had wished to commit suicide, he might have done it in the privy; the soil was deep enough to have smothered a man.

Henry Canny said, I am overseer to the General Hospital at Newcastle; on the 6th of July, I examined the body of a man named John Mason; he was confined in the gaol at the time; he was lying in a bottom berth in the strong room, with his head supported by some people about him; I endeavoured to bleed him but could not succeed; Dr. Brookes arrived shortly after, and I went away; a mark, which appeared to be that of a rope, was round the neck of the deceased, but I saw no rope at that time; I saw a rope afterwards, but I do not know that it was the one used, or where it came from; the deceased died of strangulation; his face was dark and livid.

Cross-examined by Mr. Rowe - When I first saw the deceased he was surrounded by some persons who were supporting him; the eyes were swollen, but I cannot say whether they were closed; the tongue was not out; the teeth were firmly closed, but the lips were not; I have been five years and a half overseer at the hospital; I have known Hooper more than four years, constantly employed about the gaol; I never heard any person complaining particularly of him till after this affair.

By Mr. Williams - Dr. Brookes came three or four minutes after me; a message came to me on the 6th of July, for Dr. Brookes, stating that the deceased would not be flogged without he was present; a man named Halfpenny, an attendant at the gaol, brought the message; it purported to come from Mr. Batty; I delivered it to Dr. Brookes, who immediately left his house to go to the gaol; I have known Young upwards of five years, and, as far as I know, he has always acted humanely in his office; I know nothing against his character.

Re-examined - The message was, that the deceased would not be flogged unless Dr. Brookes were present.

By the Court - The deceased had not been punished, for I examined him to ascertain that fact.

By Mr. Rowe - I will not swear positively what was the actual cause of the death.

Stephen Collett - I am an indented servant to the Australian Agricultural Company; on the 6th July last, I was in the gaol at Newcastle; on that day I saw a man, called John Mason, in the gaol-yard, alive; the next time I saw him was in the strong room; I was walking in the yard, and went to the window of the strong room, where I heard a great outcry from Mason; I saw him in the room; together with the prisoner Young and Hooper; Young had a rope in his hand; which he put over Mason's head and round his neck; Mason was handcuffed at this time; when Young put the rope round his neck, Mason put up his hands to prevent it tightening round his neck; Young snatched the rope and pulled it tight round his neck, and then pulled him across the room towards the post; he could not get him up as Mason pulled against him; he then sent up to Mason, put his hand on his shoulder, and said ``you b-------- I'll knock your brains out;" Hooper at this time was standing on one of the top berths, and told Young to hand him the rope and he would pull the b-------- up; Young did so, and Hooper pulled the deceased up to the  post at the edge of the berth, and held him there two or three minutes, and when he let him down he groaned; I saw no more, I might have been standing at the window about ten minutes or a quarter of an hour; I saw no one in the room but Young and Hooper, and a man named Burtenshaw, but I cannot say whether he was present all the time, for I could not see the whole of the room from the window; Burtenshaw was a prisoner in the gaol; I saw two ropes put round the deceased's neck by Young; the first rope was taken off; the second was a larger rope, and had a noose at one end through which I saw Young draw the end of the rope before he put it over the deceased's neck.

Cross-examined by Mr. Rowe - A man named Benjamin Davis was looking in at the window with me, and I left him there after me; I did not complain to any one of what I saw, as I did not consider it my place to do so; there were upwards of twenty prisoners and a turnkey in the yard at this time, but I told no person what I had seen; I never told any one what I had seen until Dr. Brookes came; I then told him how Mason came by his death; I also mentioned it to Mr. McLeod; I was not examined on the inquest; I did not see the deceased dragged off the ground; I saw him fall, and the rope fell with him; Burtenshaw was in the room at the time, looking on; I was under sentence in the gaol for six months at that time; I never had any conversation with Burtenshaw since about this transaction; the gaol-lodge, in which was a turnkey, was not above half a dozen yards from the window where I was looking in; I did not inform the turnkey of what I had seen; Hooper threatened to put me in the cells once, but he never behaved amiss to me in the gaol; he never threatened to put me in the cells more than once, that I remember; I have never seen Burtenshaw since I left the gaol; I might have spoken to him about this business in the gaol, but to the best of my knowledge I never have; I never asked him the reason he stood by while a murder was being committed; I was as good friends with him after this transaction as before.

By the Court - I did not send to the Coroner to inform him of what I had seen; the inquest was held in the goal; I was not examined; I told some constables what I had seen.

By Mr. Williams - I have seen persons punished, but I never saw a rope used in that way before; I cannot swear whether the deceased put up his hands to prevent the rope tightning [sic] round his neck, or to prevent its being brought down round his body; he was very refractory.

By a Juror - The rope was put round the top of an upright post which supported the berths; It was not over a beam, when Hooper let go the rope, the deceased fell flat, either on the ground or on the bottom berth; I did not see what took place after.

William Burtenshaw - I am a private in the 57th regiment; in July last, I was confined in Newcastle gaol for a breach of discipline; I remember a man named John Mason being brought into the gaol, on the 6th of July; I saw him in the strong-room; I was called in by Hooper to assist in tying up the deceased to get his punishment; Batty and Young were present; I refused to assist, and Batty said he would get me 14 days in the cells for it; I remained in the room; I saw the deceased handcuffed, standing with his hands across a pole; Hooper struck him a blow under the neck, with his fist, which did not knock him down; Young then got a rope and put it round his neck; the deceased pulled back, and Young used to let go the rope and suffered him to fall several times; Young said, he would either tame him or break his heart; Batty again desired me to assist, and I went out of the room; Batty followed me and said he would have me punished if I did not assist, and I again returned to the room; when I went in I saw Young put a small cord round the neck of the deceased, and give the end of it to Hooper, who pulled the deceased up to the pole; Batty was not there when I went in the second time, nor did I see him there afterwards; I saw Hooper and Young both pull the rope up to the  post; blood came from the nose of the deceased, and he was quite black in the face, when a voice at the window of the strong-room said ``The man is chokeing [sic]," upon which they let go the rope, and the deceased fell; I then went out to look for Mr. Batty, but could not find him; I went back again into the room and found Young standing in the midst, and Hooper near where the deceased fell; Young told me to go out as I was not wanted there; I went out and the men in the yard were then coming into the strong-room, but the prisoners, Young and Hooper, sent them up stairs; after this I went to the door of the strong-room to get some water, when I met Josephs, the turnkey, who sent me for a knife with which I cut down the deceased, who was then suspended from a horizontal beam above the berths, and seemed to me, at first, as if he was sitting on the edge of one of them; he was quite dead; neither of the prisoners were in the room.

Cross-examined by Mr. Rowe. - I saw a man named Davis, and the wituess, Collett, standing at the window outside; I think it was Collett who called out ``The man is chokeing [sic];" I never had any conversation with him about it after; the strong room is not very far from the lodge; I did not inform the gaoler or turnkeys of what I had seen; I talked to Davis about what I had seen; it used to be talked about by some of the confines in the room, but I always walked away, as I did not like to hear it mentioned; I though that a murder would be committed, from what I saw; there were more than twenty prisoners in the yard, and a turnkey over them, but I did not mention what I saw to any one; I swear positively that a man outside could not see the deceased fall, in the direction where he was; it was up to the post that the two men pulled up the deceased, and not to the beam; I did not see him at the beam till afterwards, when he was dead; I saw both the prisoners pulling him; it was not Young alone, or Hooper alone, they both pulled; his feet were not pulled off the ground at all when I was present; the deceased was very black in the face, and his tongue out; I swear that I heard Collett call out that the man was hanging; I was sent to Newcastle gaol for three years for having words with tke serjeant [sic]; I was 24 hours in a cell there, before this transaction, and 14 days since, for making a report against the present gaoler, for giving liquor in the gaol, but which report the magistrates held to be groundless, though they did not send for my witnesses; Hooper was on the top berth, and Young gave him the end of the rope, which he pulled until he got one turn round the post, and then put his feet against the post to give him more power; Young at that time, held the rope by the neck, to pull the noose tighter.

By Mr. Williams - Mason was very violent before the rope was used; I refused to assist in tying the deceased up, because I did not want the name of an assistant flogger; I saw him attempt to strike the two prisoners; I heard Young say, ``Mr. Batty, send for Dr. Brookes, for I'll not punish him before he comes;" about five minutes after, I saw him dragged as I have stated; the post he was pulled up to was perpendicular; I afterwards saw the body hanging about two feet from the post; I never saw the deceased after I saw him fall, as I have described, till I cut him down; I never said to any person that I saw him rise after he fell; the beam to which I found the deceased hanging was not above five feet from the ground.

By a Juror - When the deceased fell, he pitched his head through the bottom berth, where there was a board out; before the rope was brought the deceased struck at the two prisoners; I did not see any one tie up the deceased to the place where he was found dead; Collett was at the window, but I am sure he could not see the post, to which they were pulling him up from it; I am positive he could not.

Re-examined - I am sure it was Collett who called out ``The man is chokeing [sic];" I saw him at the window; he could not see the post from where he stood, but he might have seen the deceased as he was pulled about; the deceased was nearer to the window than to the post at times.

John Butler Hewson, district constable at Newcastle, said, I went into the strong-room in the gaol, where Mason was lying dead; I took possession of this piece of rope, which was hanging on a beam under the top berths, about give feet from the ground; these other pieces I found lying in the middle of the room; I heard there was another rope which I asked for, and I got this from Mr. Joseph Batty; there was a mark of fresh book on it; I asked Batty how it came there, but I did not hear him account for it; I saw a mark on the neck of the deceased, as if make by a rope; I also saw an incision in the arm where he had been attempted to be bled; I was present when Dr. Brookes was there, and saw him cut the deceased, but he did not bleed at all; he was also cut in the temple, but no blood flowed, at least no quantity, not half of wine glass full; I know the witness, Burtenshaw; I spoke to him on the subject, but only when looking for the witnesses; he told me that he was present and saw the transaction, but did not describe it to me; I heard him give evidence on the inquest; before he was brought before the inquest he told me nothing particular, that I can recollect; he said it was a foul murder.

By a Juror - I was present at the examination of the deceased, when he was sentenced to receive 100 lashes; it was for threatening the life of his overseer; Dr. Brookes was on the Bench at the time.

This was the case for the prosecution.

On behalf of Batty, the following witnesses were called:-

Mr. R. C. Pritchett, merchant in Sydney, has known Batty nine years, and considers him a humane, kind-hearted man; he is married and has children.

Mr. George Thomas Graham, a settler at Hunter's River, has known Batty for three years, and as far as the witness could judge, has always found him a man of the utmost humanity and kindly feeling, and always heard him spoken of as such.

T. McQuoid, Esq. High Sheriff of the Colony, has known the prisoner, Batty, for two years, as bailiff at Newcastle, and subsequently as gaoler, and formed a very favourable opinion of his character for kindness and humanity; believes he was not disposed to do injury to any body; I appointed him gaoler at Newcastle, and should rather have been inclined to remove him for too much softness and lenity.

Mr. Edward Sparke, of Sydney, has known Batty for 6 years, during which time, his general character for humanity and kindness of heart, has been excellent; witness never heard or knew any thing of him to the contrary.

On the part of the prisoner, Young, Mr. Williams called Peter Riley, a constable at Newcastle, who said, I know the deceased; I was present at his examination when he was sentenced to receive 100 lashes; he said he would rather be hanged.

Captain Henry Steel, Keeper of Sydney gaol, said I remember an instance since I have been in office, when I found it necessary to put a rope over a man's person, from his violence.

Barny Doran said, I know the deceased.  I remember when he was brought to the gaol to be punished, on the 6th of July; when he was taken into the yard, he asked among the prisoners for a knife, and said he would stick Bob Young, or any person who came to flog him, as he would sooner be hung than receive 100 lashes; he seemed that day as if he would do any thing.

James Walsh, said, I was in the gaol at Newcastle on the 6th of July; I remember the day, Mason was dead in the gaol; I met Young coming out of the strong room, and asked him what they had done about the flogging; he said they could not tie him up he was so violent, and that they were waiting for the doctor to come.

Mr. Rowe called no witnesses on behalf of his client, Hooper.

The learned Judge then minutely recapitulated the whole of the evidence, - leaving the case to the Jury to say, first, whether they were satisfied that the deceased came by his death in the manner charged in the information; secondly, if so, whether the prisoners were the persons who put the rope round the neck of the deceased; and, thirdly, if the jury were satisfied that they did so, under what circumstances was it done? - whether with the deliberate design of destroying life, or, with abona fide intention of drawing him up to the post to receive his punishment?  In the latter case, although the act was criminal, the offence would be mitigated to manslaughter.

The Jury found the prisoners, Young and Hooper, guilty of manslaughter, and acquitted Batty, who was discharged by proclamation.

The other prisoners were remanded.[2 ]

Notes

[1 ] See also Australian, 21 January 1831.

[2 ] Justice Dowling sentenced the prisoners to a further three months imprisonment, noting that they had already endured seven months there: Sydney Gazette, 25 January 1831; Australian, 28 January 1831.

Published by the Division of Law, Macquarie University