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

R v Ryan, Steel, McGrath and Daley [1832] NSWSupC 95

murder - Aboriginal trackers - convict escape - convict evidence - approver, evidence by - Crown mercy - capital punishment, dissection

Supreme Court of New South Wales

Forbes C.J., 14 December 1832

Source: Sydney Gazette, 15 December 1832[1 ]

 

Samuel Ryan, William Steel, Thomas M'Grath and Patrick Daley, were indicted for the wilful murder of John M'Intyre  Esq. at Kinghorne in the county of Durham, on the 6th of September 1830.  The first count laid the manner charging Ryan as a principal, committing he murder with a gun and leaden bullet on the right side of the body and the other, three prisoners, as accessories; The second count charged Steel as principal, committing the murder with a gun and leaden bullet, on the neck and the other three prisoners as

The Attorney general having opened the case.

Edward Doolan was called and examined by Dr. Wardell, after being warned by the Court that any expectation of mercy be held for himself, must depend for realization on the circumstance of his giving nothing but the truth in his evidence.

I am a prisoner of the Crown under sentence; I know the prisoners at the bar; about August 1830, I was a runaway from my master Mr. Edward Wright; I had been sentenced to the tread-mill and absconded on the road; about five days after I ran, I met Steele and Ryan, at the house of a man called Yorkshire Johnny at a place called Long Swamp, about six miles from Newcastle; when I entered the house, I told Yorkshire Johnny, in answer to his question, that I was going to hospital; he asked for my pass, on which he laughed, said I might as well tell at once that I was in the bush, and there were two others there that would be glad to join me; he then sent for Steele and Ryan who came back; Steele suggested a plan to rob Mr. M'Intyre's house, and I agreed to be of the party; about eight o'clock me, Ryan, and Steele, went away, each armed with a musket; a man named ``Paddy the Good, supplied me with my musket; we proceeded toward Mr. M'Intyre's place, which is about thirty-four miles off; this was in September, and we went about eight-and-twenty miles that night, and stopped at day-break close to a creek; we struck a light and made a fire; Daley joined us there, and said he thought the place too strongly guarded for us to stand any chance, but his master would be going to take £750 to put in the Bank next morning, and we could stop him on the road: we agreed to stop and shoot him; we continued there till evening, and then crossed a small river, where we stayed till next morning; about six o'clock, Daley came again to us, said the master was coming, and we were to stop him between his own place and Wolloroba, Daley then left us, and half an hour after we proceeded on the road; it was on a Tuesday morning; we saw nobody till we saw the prisoner M'Grath on the road, and about a quarter of a mile after him, Mr. McIntrye, and Daley about a hundred rods again behind him; our party were about fifteen yards from Mr. M'Intyre; we were all behind trees; when Daley came to us in the morning, he told Ryan and Steele ``they knew what a tyrant Mr. M'Intyre was, and he (Mr. M) was continually getting him flogged; he further said, that if we stopped him without shooting him, he (Mr. M) would get us hanged; We were to share the £750; when we saw Mr M'Intyre come up, I discharged my piece and struck him in the right shoulder, he immediately turned about, and cried out for mercy; the words were scarce out of his mouth, when he received the shots of Ryan and Steele, on the left side, and on the left part of the neck; Mr. M. then dropped on his face and hands; shortly after we went up to the body, and while we were searching it M'Grath and Daley came up; Daley said he was almost sure Mr. M. had the money with him, and told us to search very closely.  We did so, but found only four dollars, a dump, a rupee, an account book, a silver pencil case, a silver watch, two gold seals, and a common seal; as Mr. M'Intyre walked along, I, Steele, and Ryan were standing on his right side; the moment he received my shot, he wheeled round and put up his hand; his exclamation was ``mercy, mercy, Daley. I don't remember what I said when I was examined before the magistrates, as to the side on which Ryan and Steele shot him. When he lay on his face, his face was in the direction from which he had come.  After we had searched the body, Steele said he had a great mind to serve Daley the same way; the blue coat which the deceased had on his arm, M'Grath took away with him' Daley told M'Grath not to mention at home that he had seen him.  We were for proceeding to the house to look for the money, but Daley said there were too many about it; Steele, Ryan, and myself carried the body about three miles or three miles and a half, when we made a fire and put it on; the body was quite dead before we removed it; it might be ten or twelve minutes after the shots were fired when Daley and M'Grath came up;Daley had agreed in the morning to come after Mr. M'Intyre, and to send M'Grath before him as a sign to us; the wound in the neck was a very deep one with slugs; their muskets were loaded with slugs and balls, and mine with ball only; mine went in at the fleshy part of the shoulder behind, and came out in front; I do not know whether it touched the bone; I know he was shot in the side, because we saw the hole through the waistcoat and shirt, about three inches below the arm; I cannot state which of the shots occasioned his death, but I am of opinion it was the one in his left side; we only stopped long enough to make a very large fire, and place the body on it, without waiting to see it consumed; we took a pair of ancle boots, off the body; Mr. M'Intyre breathed for about a quarter of an hour after we came up to him.  Steele wore the boots, after the murder.  We proceeded that night about a mile from the place when we, burnt the body, and next morning Steel went early to see whether, it was consumed.  When he returned, he reported that everything was destroyed.  We took a brown silk handkerchief, with white spots, away from the body, which I retained in my possession about four or, five months, and then gave it in the Sydney gaol to a woman named Mary Connolly.  We proceeded along the Wollombi Road, when we stopped a man with a pack bullock, from whom we took some cloaths, and provisions.  This is the handkerchief we took away from Mr. M'Intyre; The name was on the corner, but I picked it out, because Ryan said I had better do so; On the second day after the murder we returned to Yorkshire Johnny's : we killed a sheep belonging to Mr. Sparke, and carried it there; We continued there I think about two days; We returned up our arms and ammunition to Johnny's; I know the musket I had, from being lashed with cord near the lock; this is the same musket; with the money we took from the deceased we sent for some rum.  Ryan has some blue marks on his arm; we hid the watch about a mile and a half from where the body was burned, but I have not seen it since.

Cross-examined by Mr Rowe; The marks on Ryan's arm were such as seaman make on their arms; I have been in the 10th regt. of foot, and seen marks on the arms of my comrades; both Mr. M'Intyre and the county when he was killed were strange to me; I had scarce fired at him, when the others fired, I could distinguish that they fired after me; the deceased was not staggering when they fired; He had plenty of time to have fallen while he turned round, if my shot had killed him.

By the Jury - It was previously arrainged [sic] that I was to fire first, and Ryan and Steele afterwards; Daley was aware of the murder before, but I do not know whether MrGrath was.

Re-examined - I understood from the prisoners that the person shot was Mr. M'Intyre; directly after the shots were fired, M'Grath came up; I never saw him before; Mr. M'Intyre could not see M'Grath before him, on account of the hills and turns intervening; M'Grath had the coat, but I do not know what became of it afterward; Daley was desirous to known what we would do with the body, but we told him to go away.

Mr. William Rivers examined by the Attorney General - I now live at Hunter's River, and in 1830 lived at Bulwarra, the estate of Mr. Peter M'Intyre; I knew Mr. John M'Intyre well; he frequently used to stop at Bulwarra; I remember when he was missed, and saw him in company with Major McLeod and two of her gentlemen, on the Sunday before he was missed; I saw this handkerchief in his possession when he was at my house on the Sunday, as he was missing on the Tuesday after; I think it was the 2d of September, 1830; I am quite positive of the handkerchief, because I had taken great notice of it; there was a small hole in one corner; Mr. M'Intyre was missing on the Tuesday, and never came back any more; I sent a man with letters for Mr. M'Intyre on the Monday, and he returned on the Wednesday, saying that Mr. M'Intyre was missing; they had been to all the farms after him, but he could not be found any where; there was a report abroad that Mr. M. had been put on one side; enquiries were made after him for about three weeks.

Cros-examined [sic] by Mr. Rowe - It was not a current report that Mr. M'Intyre had left the country altogether, but there was a rumour of that sort among some of the men; I never heard that he was sued about that time for a large sum of money; he was never seen after the 5th or 6th of September 1830; this hole in the handkerchief is a little larger than when I saw it at my house; I do not remember seeing any name upon it, but it might have been.

Mary Ketland, late Connolly, examined by Mr. Moore - I am the wife of John Ketland; I was in the Sydney Goal above a year ago, and then had a conversation with a man named Doolan; he was a countryman of mine, and gave me a handkerchief under the door; I gave him a half handkerchief as a return keepsake; he did not tell me whose handkerchief it was; it was dark and darned with white silk; this is the same handkerchief.

Cross-examined  by Mr. Rowe - A hole had been darned with white silk, and I saw no other hole; at the time Doolan gave me the handkerchief he was under sentence of death, and expected to be hung; this is the man I call Doolan.

Doolan re-examined - I saw Steele put them on, and they were too large for him.

John Butler Hewson, examined by Dr Wardell - I am gaoler at Newcastle; I remember a man who called himself Frederick White being apprehended; this is the man (Doolan); I searched him, and found among other things a handkerchief; the handkerchief was of a chocolate ground, with white spots; there was a hole darned clumsily with twisted silk; I told him I thought he had been taking the name out; this is the same handkerchief; Rouse, the constable, kept it till after his trial, and then gave it up to him after he was cast for death, in consequence of not being owned; I had Steele in my custody at Newcastale but I cannot say that I noticed his boots.

Cross-examined by Mr. Rowe -  I have seen the deceased several times, but cannot tell the colour of his hair; I never heard that he left the country; Doolan was tried at Sydney in 1831; and sentenced to death; it was after that that the handkerchief was given to him.

Mr. George Muir, examined by Mr. Moore - I have a farm about four or five miles from Newcastle, and the same distance from Long Swamp; my farm was robbed in October, 1831, and the prisoner Steele was convicted of the offence; he was brought in by two native blacks, and I recognised him with my overseer's jacket on his back; he had on a pair of ancle-boots, the lace-holes of which were very neatly worked; they did not appear to have seen much worn.

John Eckford, examined by Mr. Moore - I was formerly chief constable at Maitland, and remember the prisoners being in charge there; Steele and Ryan were in charge for a robbery at Mr. Muir's; Steele had on a pair of neat-made boots.

John Budge, examined by Dr. Wardell - I keep the lockup-house at Miatland, and had the prisoners Daley and M'Grath in charge for Mr. M'Intyre's murder; M'Grath  was allowed to leave the lock-up in charge of a constable, to go to the farm, as he said he might find out something about the murder from some of his comrades; when we returned, two or three days after, he had on a blue jacket, which he said was given him by the over-seer; it had a rolling collar, and appeared altered as if it had been too short for a man, or made from some other clothing; Steele and Ryan were brought to me by some blacks afterwards; I do not recollect Steele's shoes.

Cross-examined by Mr. Rowe - M'Grath requested Captain Allman to let him go to enquire about the murder; it was on the 27th October, 1830, that I received Daley and M'Grath at the lock-up.

William Sparke, examined by the Attorney-General - I reside about twelve miles from Newcastle, near the Long Swamp; in the year 1830, there was a man known by the name of Yorkshire Johnny, resident about six miles from me; about September or October of that year I missed about seven or nine of my sheep.

Cross-examined by Mr Rowe - The late Mr. M'Intyre was a tall man, but I do not remember the colour of his hair; it was same time before November that I lost the sheep.

William Bowles, examined by Dr Wardell - I live at Williams' River; I remember seeing a person named M'Grath in the lock-up at Maitland, in January 1831; I had a communication with him, and he said that Mr. McLeod had bounced him and gone to the farm and told the servants there that he (M'Grath) had confessed all, and told him where the hoes [sic] were with which they had committed the murder; but, said M'Grath to me, there he was wrong, for those were not the tools we did it with; I swear that this occurred within a week of the lst of January, 1831; it was not at the lock-up at Newcastle, but at Maitland; directly I got liberated, the next day, I went to Captain Aubyn, and made deposition of what M'Grath had told me; It was in a dark cell I had this conversation with M'Grath, an therefore have but an indistinct recollection of him, as I never saw him since.

Thomas Chandler - I was an assigned servant to the late Mr. M'Intyre; I saw him on the Monday evening, about two years ago, a little before sundown, and have not seen him since; M'Grath was employed as a cook in the house, and Daley worked on the farm; I remember M'Grath coming to the farm in charge of a constable some time after my master was missing; I was in custody with him, and he told me to tell Michael Clare and Charles James to say that they had not been sworn before any Magistrate, and that they saw the master that morning; I was also to tell them that they might say what they pleased for there was no one to contradict them; at the time my master was missed I was burning off, about a mile and a-half from the house; I went up on the Tuesday morning for my milk, and when M'Grath filled my bottle, saw Daley in the house; when M'Grath had given me my milk he shut the door; I went one night after my master was missing in order to get some tobacco, M'Grath said he had none, and I replied that I would wait then till the master came home, on which M'Grath said that he did not think I should ever see him again, for he was gone to h-, or some other fine place; when we were in custody together, we had a conversation, and he said he could not get out of it without putting others into it; I don't know what he meant by it.

Cross-examined by Mr. Rowe - That man is the same M'Grath to whom I allude; I know him well; I was in the bush about 2 months back; I do not know whether I was charged with the murder; I was a week in the bush, and taken before a magistrate, but not on suspicion of my master's murder; I took the bush because I was foolish and did not know any better; I was apprehenced [sic] by one of Mr. Weller's overseers; I was never promised that I should be exempt from punishment if I came up and told this story; I cannot recollect whether I had any conversation since I was caught in the bush about what I should say here; I did not give evidence before Captain Aubyn at Maitland about this; I was examined once there; I was examined about this matter before Mr. Peter M'Intyre, and told him the same as I do now; I was sentenced to receive 150 lashes for running away, but was placed in the cells instead, where I was for three weeks.

By the Jury. - I saw my master on the Monday when I was at work, but I had not hear that he was going from home; I do not remember ever seeing M'Grath with any jacket except a gray one before the master left; but I saw him wear a blue one after.

John Caffray, examined by Dr Wardell - I am assigned to Mr. Peter M'Intyre, and was formerly in his brother's service; I remember when my master was first missed; on the Monday evening I saw him before his house; and on the Tuesday morning between nine and ten, I fetched my bullocks home to yoke them; I went down to the house, and found the door padlocked on the outside; I went away for a short time, and on coming back found the padlock off; I called, and M'Grath opened the door from the inside; I saw the breakfast things lying on the table; on going in for my rings and other hardness, I saw Daley coming out of the master's room, he reddened in the face at seeing me; two or three days afterward I saw a handkerchief, an inside waistcoat, and a shirt, which I knew to be my master's on M'Grath; I have often seen my master wear a blue surtout coat, and after he was missing I saw the tailor inside the master's bed-room window, making a jacket out of a blue coat.

Cross-examined by Mr. Rowe - I know Chandler; and was in the bush with him; we ran away because we were afraid of being beaten by the other men; we gave ourselves up to Mr. Webber's overseer.

Charles James examined by Mr. Moore - I was an assigned servant to Mr. John M'Intyre; the last time I saw him was on the 27th September, I was shepherd, and saw him about an hour before sunrise, with a blue coat on his arm; he gave me some instructions about the sheep, and I never saw him again; M'Grath asked me that evening and the next to sleep in the house with him, the third night he told me I had better sleep at my own place.

Cross-examined by Mr. Rowe - When Mr. M'Intyre left home M'Grath was at the house, and he remained there for some time afterwards, while I got my breakfast and took my sheep out; it is since I told this to Captain Aubyn that have been put in irons; it was not being suspected of stealing some tobacco, but for stealing it that I was put in irons.

William Shaw, examined by Dr. Wardell - I have seen M'Grath and Daley before; on the 24th October, 1830, I apprehended M'Grath; in November following, in bringing down M'Grath, a man named Clare, who had been Mr. M'Intyre's tailor, was also in custody, and M'Grath said to him, ``Be aware what you say about altering Mr. McIntrye's clothes to fit me, or it will go badly with me perhaps; they were sitting at my door at the time, and I was about a rod off.

Cross-examined by Mr. Rowe - I was within a few yards of them when M'Grath said this, and yet he made no scruple of saying it openly; I was never examined on my oath before Captain Aubyn; it was not on my testimony they were committed; I was not examined before a magistrate, till the last Quarter Sessions at Maitland; I hear the conversation in November 1830, but I never mentioned it to any person till the last Quarter Sessions at Maitland; I heard the conversation in November 1830, but I never mentioned it to any person till the last Maitland Sessions, three months ago; didn't tell any body, because I was not asked.

Peter Riley, examined by Mr. Moore, in the latter part of 1830, I was constable at Newcastle; Steele was in the watch-house  there about two years ago, last October or November, having been sentenced to a penal settlement; I noticed his boots, which were ankle boots, of the best quality, such as worn by gentlemen, and remarked upon them being too long for him.

Cross-examined by Mr. Rowe; I knew the late Mr. M'Intyre; there was a report of his having been murdered; I do not remember the colour of his hair.

John Byrne, examined by Dr Wardell, In the latter part of 1830, I was overseer at Dennis's dog kennel; I keep a weekly report book of my gang; the prisoner Steele belonged to my gang, and absconded on the night of the 2d of September, since which I have not seen him till now.

Cross-examined by Mr. Rowe - There was nothing extraordinary in Steele's getting away from the dog-kennel; many others, who did not like the gang left it; it is about sixty miles from my hut to the place where Yorkshire Johnny lived.

Shaw recalled - It is about thirty-three miles from Mr. M'Intyre's farm to Yorkshire Johnny's.

James Gallagher - I was a constable at Maitland, and know where Yorkshire Johnny lived; it was at Sandy Flats, about eleven miles from Maitland; I was sent there with a warrant to look for fire-arms and ammunition; we found anything at his place, but at Paddy the Goose's, we found this musket, a cannister of powder, and some slugs and ball; there was a deal of ammunition there; a description of the musket had been previously given to us by Captain Aubyn, to which it answered in every respect.

Cross-examined by Mr. Rowe - Paddy the Goose was a small settler; he was a prisoner of the Crown, and had no right to have fire-arms; he was suspected of harbouring the bushrangers.

Charles Murphy examined by Dr Wardell - I was a lent servant to the late Mr. John M'Intyre two years and a half ago; M'Grath was a house servant there, once about three months before Mr. M. was missing, I went up to the house for a bullock chain, and M'Grath asked me if I thought Mr. M. had much money in the house; I replied that I knew nothing about it, and nothing further was said till about three weeks before he was missed, when I was in company with M'Grath and Daley, and then he renewed the subject, and asked me if I did not think we could put Mr. M'Intyre out of the way with the assistance of another, and say he was gone somewhere on business; I asked him if he was so bad hearted as to think of such a thing, and refused to have any thing to do with such a thing; as we were coming back M'Grath asked Daley to lend him some money.

Cross-examined by Mr. Rowe - Mr. John M'Intyre had dark brown hair and sandy whiskers.

F.N. Rossi, Esq., examined by Mr Moore - I am Principal Superintendant of Police; some of the prisoners at the bar were examined before me; I remember a man named Doolan coming to give his deposition; after he had given his evidence and was going out; Steel struck him, and said something to him.

Cross-examined by Mr. Rowe - There was one of them who went by the name of M'Grath; Doolan did not seem at that time to recollect him on that account: I do not remember whether the question was even put to Doolan, whether that (pointing to M'Grath) was the man he alluded to; Doolan was examined several times before me, and he did not always give the same answers; Doolan did, one day, unsay almost all he had said, and at last he brought out that his reason for so doing was, that his rations were insufficient on all the occasions he was examined on oath; on one occasion Doolan said that he should have thought M'Grath was the person whom he had described as M'Grath, but from the colour of his hair; I think he swore on the first examination that he was not sure whether M'Grath was the man; recollect Mr. Rowe that you have not a common witness to examine; it is of no use for your to shake your paper at me; I do not recollect all that occurred at the first examination; I mean to swear that on Doolan's first examination, M'Grath's name was mentioned as one of the parties concerned in the murder; my impression is, that Doolan said M'Grath was one of the men on one examination; I did not hear what Steel said to Doolan when he struck him; I was too far away to hear him.

Re-examined by Dr. Wardell - I do not remember whether he pointed out Daley as one; Doolan did not complain when he hesitated about his evidence that he was afraid of his life; he attributed it to his short ration.

This was the case for the prosecution.

Edward Doolan re-called for the defence - Part of Mr. M'Intyre's hair was black and part white; I never told Captain Rossi that my rations was the cause of my refusing to give evidence; but I told him it was on account of my life being threatened on board the hulk.

Re-examined by Dr Wardell - I was about seven months at Moreton Bay when sent for to be examined about this murder.

The prisoners being called on for their defence, Mr. Rowe contended that the information was vicious, because the name of Doolan did not appear, whereas the first wound was given by himself; the whole three taking effect, but his first.  He would show upon authority, that the wound given by Doolan should have been stated in the information, as adduced by Hawkins, and followed up by 3rd Chitty, p. 736; it is absolutely necessary to state the different wounds, or that the deceased died of the first, second, or third; again in 2d Hawkins, page 330, the same, ``such count ought to show that the party died of the hurt specially set forth".  The learned gentleman continued, he was not calling upon the jury for their opinion on the matter of fact, but upon His Honor on the point of law, and he therefore submitted that the wound given by Doolan should have been inserted as it was in evidence that he had inflicted at first, or it should have seen, that in consequence of the three wounds that he died.  If Doolan had told the truth, His Honor would surely not hold that the prisoners were bound to prove the negative.  Again it did not appear in evidence that the person said to be shot, was that of Mr. John M'Intyre; the approver spoke only of what he had been told.  Lord Hale states that he never would convict a man of murder, unless the evidence proved it to be the same person murdered, as laid in the information, or that the body was found.  It must then be in law proved; that the person killed is the same laid in the information.  Has the body of Mr. M been found?  It was in evidence that Mr. M. was a man of dark brown hair and sandy whiskers, and Doolan described him as a person with grey hair.  The Attorney-General maintained in answer, that two distinct shots were laid in the information, and if the jury were satisfied that either of those shots were sufficient to cause death, it was quite competent to convict the prisoners.

Mr. Rowe replied, and

The Chief Justice decided that, not doubting the authority of Hawkins adduced by Chitty, this was evidently a question of fact for the jury, and it would be the province of the Court to point out to them the bearings of the law on the case.  With respect to the second point, Hon Honor was of opinion that there was abundance of evidence to prove the indentity [sic] of Mr. M'Intyre.

It being now nine o'clock, and Mr. Rowe stating that the defence would occupy a long space of time, it was mutually agreed that the case should stand adjourned till ten o'clock this morning.

 

Forbes C.J., 15 December 1832

Source: Sydney Gazette, 18 December 1832

 

Continuation of the trial of Ryan, Steele, M'Grath, and Daly, for the murder of Mr. John M'Intyre.

The prisoners having been placed at the bar, the defence, had a most important point to submit to the Court, viz, that the whole of the evidence given yesterday by the approver Doolan must be struck out, in as much as he was a convict attaint, and therefore incompetent as a witness.  This fact had come out on his cross-examination, when he confessed being a felon under sentence of death, and he, (Mr. Rowe) should therefore first call upon Mr. Gurner, to produce the record of his conviction, and then beg His Honor's reference to his notes of Doolan's evidence.  Mr. Gurner however not being at hand, Mr. Rowe called

Mr. Edmund Wright - I am a settler residing at Bargo Brush and Edward Doolan was my assigned servant; he was assigned to me in the year 1828, and continued in my service till the 8th of October, 1830; in August, 1829, he was sentenced by the Liverpool Bench to ten days on the tread-mill for being drunk, after the expiration of which he returned to my service; he was not out of my service from that period till the 8th of October 1830, when I took him before Major Antill for drowning a horse of mine, for which he was sentenced to 12 months' labour in an iron-gang; he did not at any time abscond from my service previous to that, nor was he from under my observation during the whole of that time; I am quite positive of this; I keep a memorandum book, in which I record all the conduct of my assigned servants, and on referring to that, I found, as I have said, that in October, 1830, he was sent to the iron-gang; he was in my service the whole of August and September, 1830; the distance from my house, where he then was, to that of the late Mr. M'Intyre, is, by common report, at least a hundred and fifty miles; I remember seeing a report in the Sydney Gazette of what Doolan said in his examination at the Police Office, and it immediately struck me that he could not have been where he stated at the time, as I knew he was with me; I knew it from my memory, and I referred to my memorandums, which I found to be the same; I went over to Major Antill, and told him, and he consulted his books, where he found that Doolan was convicted by him in October, 1830.

Dr Wardell cross-examined the witness at very great length, during which he repeatedly contradicted himself, but the circumstance appeared rather attributable to the abilities of the learned counsel, and the advanced age and declining faculties of Mr. Wright, than to any intentional mis-statement on his part.  To the fact, however, of Doolan being in his service up to October, 1830, he remained positive.

Mr. John Gurner examined by Mr. Rowe - I am chief clerk of Supreme Court, I hold a document in my hand, from which I find that Edward Doolan alias Frederick White, alias Frederick Wyatt, was tried before the Supreme Court of this colony, on the 18th of January, 1831, for a robbery in the dwelling-house of Mr. Joseph Fredericks at Newcastle, on the 20th of November, 1830, ad putting a person in bodily fear therein.  He was convicted of the offence, and sentence of death passed upon him; which sentence has been commuted to hard labour for seven years at Moreton Bay.

Mr. Rowe - Upon this testimony, your Honor, I submit that the whole of the evidence given yesterday by Doolan must be struck out, be being a convict attaint, and incompetent as a witness.

The Chief Justice - If you wish, Mr. Rowe, to argue the point, the Court will hear you patiently , but you are aware that it has already undergone the most earnest consideration in the case of Blackstone, when a majority of the Bench decided it; and such being the decision of the Court, I am bound to abide by it.

Mr. Rowe replied that he was perfectly aware of the point having been most elaborately argued on that occasion, but much has came to his knowledge since, which made him extremely desirous that it should be once more discussed, and the more especially so as there was then a want of unanimity on the Bench; however, if His Honor thought it would be of no service, he would not occupy the time of the Court, by now going into, but merely requested that the point might be saved for future argument if necessary.

The Chief Justice could not undertake to save the point, but would take a note thereof, that if desirable he might avail himself of the abilities and counsel of his learned colleagues.

Henry Colden Antill, Esq., examined by Mr. Rowe - I am resident Magistrate at Stonequarry; Mr. Wright is a settler in that district; he has been there many years, and bears a very good character; he brought one of his assigned servants, named Edward Doolan, before me on the 11th of October, 1830, on a charge of carelessness, by which one of his horses was drowned; he was convicted, and sentenced to be worked in irons for twelve months; he had never been reported to me before that period as a runaway; his master is always very correct with his assigned servants, and I should think would have reported him if he had been absent.

Mr. Rowe here moved that the depositions of Doolan before the Magistrates should be produced and read in Court; but the Attorney-General refusing to bring them forward, the Court replied they had no jurisdiction if that officer refused to product them, it being entirely optional with him.

William Gunn Lilly, examined by Mr. Rowe - was overseer in the employ of Mr. Edmund Wright in the years 1829 and 1830; Edward Doolan was his assigned servant, and I perfectly recollect his being on his farm at Bargo Brush during the whole of the months of August and September, 1830.  Her was sentenced to twelve months in an iron-gang in October, 1830, for drowning a horse.

Nothing material was elicited during the cross-examination of his witness.

Edward Doolan recalled, and examined by the Court, at the request of Mr. Rowe - While I was lying under sentence of death in the cells of the Sydney gaol, I had a conversation with a sentinel who was doing duty over me respecting the prisoner, M'Grath; I did not say that ``I should not be able to swear to M'Grath on account of his hair not being of a light colour," but that ``I should not be able to swear to him till his hair should come to its growth.

Benjamin Roden examined by Mr. Rowe - I am now a constable in the Sydney Police, but formerly belonged to the 59th regiment; was often centinel over the condemned cells, and on one occasion had a conversation with Doolan, when he was confined therein; we were talking about the murder of Mr. M'Intyre, and Doolan said he would not swear to M'Grath, because the man at the murder had light hair.

Robert Steele examined by Mr. Rowe - I am a constable, and have known the prisoner M'Grath since the year 1827; his hair was always of the same dark brown colour as at present.

Several other witnesses were called who all deposed to the same fact as the last witness, and with them Mr. Rowe closed the defence.

The Chief Justice then proceeded to charge the Jury in a speech which lasted two hours.  His Honor minutely and carefully put the case to them in all its bearings, pointing out its various corroborations and discrepancies, and leaving them to decide the important questions; first, whether the prisoners were the parties who committed the murder.

The Jury retired for about ten minutes, when they returned a verdict of guilty against all the prisoners.

The learned Judge then passed sentence of death upon them, awarding execution to take place on Monday morning, and their bodies, after death, to be dissected and anatomized.[2 ]

 

Notes

[1 ] See also Sydney Herald, 17 December 1832; Australian, 14 December 1832.

[2 ] The Australian, 4 January 1833, reported that Ryan and Steel were respited and sent on board the hulk for transportation, while McGrath and Daley's execution was postponed.  See alsoAustralian, 11 January 1833, for a report of a confession by James.

On 18 March 1833, Governor Bourke wrote to Viscount Goderich (Historical Records of Australia, Series 1, Vol. 17, pp 50-51) advising that the case should be brought before the King for consideration for mercy.  The central fact of this advice was the perjury of the approver Doolan, the confession by Charles James, and the discovery of the victim's watch.  The governor thought that McGrath was guilty of murder, but had been convicted on false testimony.  As a result he recommended life at Norfolk Island for McGrath.  Daly could not have been guilty as principal, the governor thought, but only as accessory, so the recommendation for him was a commutation, with power being given to the governor to grant him a pardon within the next two years.  The other two (Steel and Ryan) were wholly innocent, said Bourke, and should receive a pardon.  Governor Bourke concluded by noting that two of the judges (Stephen and Dowling) had favoured admission of convict evidence, despite attaint, while Forbes C.J. took a different view.  The present bench of judges, the governor thought, would reconsider the position and probably either recommend a return to the common law, or a new colonial Act.  (By 1833, Stephen J. had been replaced by the more committed Anglophile lawyer, Burton J.)

On anatomising, see also R. v. Worroll, 1827. 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