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

R v Byrne [1833] NSWSupC 76

murder - domestic violence - capital punishment, dissection

Supreme Court of New South Wales

Trial, 9 August 1833

Source: Sydney Gazette, 10 August 1833[ 1]

Terence Byrne was indicted for the wilful murder of Ann Davis, on the 24th of July last.

The Solicitor General conducted the case for the prosecution, and Mr. Therry for the prisoner.

Sarah Randall - I live at Lane Cove, North Short; I knew a woman of the name of Ann Davis; I saw her dead at Lane Cove, about three quarters of a mile from where I live; she lived with Terence Byrne as his housekeeper, as it is called; on Wednesday, the 24th of July last, I saw her alive, about three o'clock, at my place; she was then in good health; she came over for a drop of spirits, and I gave her some; the prisoner came about fifteen minutes afterwards; he came in, and began to beat her with a stick about the size of my forefinger; she was sober - the prisoner was also sober; he asked her to go over and mind the hut, she did not jump up at the moment, and then he began to beat her; he dragged her out of the house before he beat her much; he struck her on the head; he then took up the handle of an axe, which was lying opposite my place, with which he struck her across the loins; I got betwixt them, and I received a blow across my fingers, and another across my own loins, with a broomstick, from the prisoner; he had thrown the axe handle away; he then took her away from my place, about three o'clock; she went along with a German who was working with Byrne; Byrne stopped behind at my place for half an hour; I saw the prisoner give her a blow with the axe handle across the loins; he struck her on the head half-a-dozen times with the stick; I said to him, "don't beat her;" he said, "how can I help it" She made no resistance; I saw no blood; she was quite sensible; she smiled when the German took her away; Byrne, after remaining half an hour, said he was going home; about seven o'clock in the evening the German came for me, and said the woman was dead; I found her on Terence Byrne's arm; he said she was not dead; I put my breath to her's, but there was no life in her at all; the prisoner did not say how she came in that state; he afterwards said she tumbled off a  rock 100 yards from his house; the place where he lived is called "Murdering Bay;" it is rocky; they are steep; I saw blood about her; there were several cuts on her head; one at the back of her head, and one at the top, and several on both sides; they appeared to be about half the length of my finger; you might put your little finger in the cuts; she wore a cap; when I saw her dead she had no cap on; I looked for it but could not find it; the prisoner did not tell me what rock she fell from; prisoner said deceased spoke when she heard me and the German coming down the rocks; I did not believe she tumbled off the rocks, I told the prisoner so; there were proper roads to go round without going near the rocks; there was a beaten road; I did not think the woman would be such a fool as to go upon the rocks when she could have taken the road; when I told Byrne I did not believe the deceased had fallen off the rock, he made me no answer; when the constables came up I saw when I supposed he had dragged the body; the tracks were covered with blood in patches, some nearly a yard in length; the blood was close the footpath; if she fell from the rock, she must have gone about three feet further before she could have fallen over; I saw blood at the bottom; I did not then consider she had fallen down; I do not know whether the German accompanied her all the way home, but he went from my place with her; the German was present with me at the prisoner's hut; the blood was a little way from the pathway ; I saw no stick in the house ; I observed plenty of blood on the bed and the pillow; the German went for the constables, who arrived on Thursday, about one o'clock in the day; the prisoner remained at home; there was nothing to prevent his running away if he chosed [sic]; it was dark when I went into the prisoner's hut, there was a candle lighted; the constables saw the blood; I did not see it till next day; I am certain deceased had no blood about her when she left my house.

Cross-examined by Mr. Therry - I had only one glass of rum with the deceased; I said two glasses when I gave evidence before the Coroner's Inquest; I was rather tipsy then; never knew the deceased by the name of Ann Hughes; I do not know she was addicted to liquor; she was in Sydney for a few days before her death; she said she was hurt in the ribs by Byrne throwing her down in the boat; I heard Byrne say the deceased had said she was weary of her life and would make away with herself; did not recollect whether she said at the Coroner's Inquest, that, on the morning deceased came for a glsss [sic] of rum "she said she was tired of her life and would make away with herself;" it might be true that she said so, but I do not recollect it; I saw blood at the bottom of the rock but none on the pathway; can't say whether the wounds were from the sharp edge of rocks or from what they were; the handle of the axe and the broom-stick were free from blood; prisoner remained quiet in my house and promised not to beat deceased any more; the body was taken to a public-house at the King's Wharf; I was examined before the Coroner's Inquest which was held on the 25th July; if the deceased had used the expression attributed to her by me, I could not have invented it; I had no suspicion of the German being concerned; I said to Byrne when I came to see the woman dead, "sure enough she said she would destroy herself."

By the Solicitor General - I said to Byrne, she said she would make away with herself.

By the Court - If she did fall from the rock the wounds were such as might have been produced by her coming in contact with the rocks; the prisoner cried over the deceased when she lay on his arm, and appeared to feel very much.

By the Solicitor General - I do not know how many feet the top of the rock was from the ground; the deceased was a very heavy woman.

By the Jury - I did not examine the wounds; I saw no gravel or stone on the wounds.

John Lackman - I am a labourer; I live in Lane Cove; I am a German; I lived with the prisoner; I knew Ann Davis; she was the mistress in the house; I know the last witness; she is a neighbour of ours; Ann Davis is dead; last Wednesday fortnight I saw her dead; I had a cup of tea, and went over and alarmed the last witness; I did not go before, because the prisoner was alongside of her, and he said she was all right, and that there was fear of her; on Wednesday morning I went to my work, between 6 and 7 o'clock, and came home about one in the afternoon; when I came back I found no one at home; I made dinner for myself; I thought it strange there was no one at home; I went to Sarah Randall's, and there found Ann Davis and Byrne in the house; I said to Byrne, "It is almost high water, and I want to go to Sydney to load the boat;" he told Ann Davis to go home, at different times, but she would not; at last, through my persuasion, she said she would go home; Byrne said "Go, and I will be close after you;" the road is very difficult, having rocks, brush, and scrub; the woman had no shoes on; I went with her; she sat down on the road for sometime, complaining she was fatigued; while we were sitting there Byrne came up, and said to me "You had better get the wood in the boat and go to Sydney, and I will see the woman home;" I went to load the boat, and had not put a cart load in it when Byrne came to the top of the rock and called to me to come up; when I came up, I said "What is the matter ? what do you want ?" he said "I wish you would go and see if you can get that woman home;" at the same time he and I walked to the spot where she was; I saw her at the bottom of a rock, about 30 rods towards the hut; she was is a shocking state; she was covered with blood; I did not know it was the same woman I had seen three-quarters of an hour before; I called to the woman two or three times; she opened one of her eyes, and said, in a lew [sic] voice, she wanted a drink of water; I told this to Byrne, when he took up a stick, and said, let her get up, she can get a drink of water as well as you can; I put up my left arm to prevent him from striking her; I said "Terry, Terry, do not strike that woman any more;" I did not see him strike her; I told him not to leave the woman on the ground; the stick was a long as my arm, and two or three inches in thickness; I did not observe where she was bleeding from; he would not give me a hand to bring her home, and, being a heavy woman, I could not bring her home myself; I said "Terry, if you do not lend me a hand to take her home, I'll fetch the bartow [sic] and bring her home;" I went and brought it, and put her on it; we were about 300 yards from home; after some time he took the barrow from me and wheeled her up to the hut; he would not put her inside the hut then; he went in and fetched a pair of scissars [sic] to cut the hair from the wounds; he now and then put the scissars [sic] in the wounds, and I said "Terry do not hurt her;" he appeared enraged, I was afraid of him myself then, there being only two of us there; he cut the hair off; her face was all over blood; I put some water on the fire to wash it; I washed her face; after that, through my persuasions, the prisoner put her on the bed; he desired me after that to make a drop of tea for her, which I did; I brought the tea on the table, and he had his tea, but she was unable to take any; he drank his tea, and he was singing out "Ann, won't you have a drop of tea ?" I had a cup myself; I went to the bed and laid hold of her hand, and felt her pulse; I found her cold and no life whatever; the whole night through he said there was no fear of her; I said I hope not; I went over to our next neighbour, Sarah Randall, and told her, and she came; she examined her and told Byrne she was dead; the woman, Randall, cried, which made Byrne unhappy; I told Byrne, on returning from the bedside, that the woman was dead; he did not say how she got wounded on the head; I did not hear him say to Sarah Randall that she met with any accident; I left them at a place about three hundred yards from the boat; it was daylight when Byrne told me from the top of the rock to go for the woman; I got to the boat when she was lying on the footpath; she was lying close to the path where she would have to come from Randall's house; when I came out and saw the woman in that condition I did not like to say anything, because I was apprehensive of receiving a blow myself; when Byrne came on the top of the rock he had no stick in his hand; when I came to where the deceased was the prisoner took a stick off the ground; there were plenty lying about; about 15 yards off the rock, near the pathway to the house, there was next day found clots of blood; the de-deceased [sic] asked me for a glass of water in a very low tone of voice; I never heard the deceased speak after she asked me for the water.

Cross examined by Mr. Therry - I have been 17 years in the colony; I came here for 7 years; I had a row with some soldiers and was sent for two years to Port Macquarie; I have always been on good terms with the prisoner; he never charged me with throwing a knife at him; I lived about 6 weeks with him the last time; I never heard deceased say she was determined to make away with herself; the rock is about 30 feet high in some places; she might have tumbled down the rock for anything I know.

By the Court - I think it impossible from the nature of the wounds on the head that she could have got them by a fall from the rock.

Fayette Goodwin, conduetor [sic] of the Water-police - I was called on a warrant to go to Lane Cove to fetch the dead body of a woman, and to apprehend the prisoner; I went to the prisoner's hut; he was outside the door; he said, "Goodwin this is a bad job;" I went to the hut and found the body lying on the bed; I took him into custody, and put the body in the boat; I received from Mr. Jilks my instructions to take away the body, and not from Captain Rossi; I brought away the body; before I took away the prisoner, he asked me to come and look at the place where the woman fell over the rock; I set Tobin, a conductor with the prisoner; after, I sent a constable to Sarah Randall, to get the other evidence; I went myself to the spot where the blood was; I saw the marks of some blood on the rocks as if the body had been dragged along; I left the prisoner in custody at the hut; I traced the blood about 5 yards; from the top of the rock I observed no blood, but bout the height of myself on the face of the rock I observed three spots; from the corner of the road where the pathway leads down, I observed the first tracks of blood, about two yards from the corner; further down it is 20 feed high; the greatest quantity of blood I saw was 2 or 3 paces from where the rock was 8 or 9 feet high; after loosing the track of the blood, I observed the track of a wheelbarrow; from Randall's house to where I saw the first blood, may by a distance of half a mile; where I first saw blood there was no rock over which a person might fall and be killed; they might have got a wound in falling, but not to kill; the first spot of blood I saw was on the pathway leading down to the corner of the rock; I traced the blood about five yards; at the end of which the wheelbarrow track commenced; the most blood I saw was off the pathway, on the sand; I found an axe handle in the prisoner's hut; there was some marks upon it which I took to be blood [axe handle produced]; the marks appeared fresher then than now; it appeared as if it had been newly shaved, to try and get the blood off; these are the sticks [sticks produced] which Sarah Randall gave to me, and which she said, in presence of the prisoner, were those he beat deceased with; I found this axe handle close outside the door of the hut, along with some spades; I spoke to the prisoner about the axe handle; he said he did not know how it came there; I called his attention to the blood upon it; he said he knew nothing about it.

Cross-examined by Mr. therry - I should not think if a person fell from where I first saw blood, that he would receive such wounds as the deceased had; the German went up with me in the boat; I have known the prisoner fer [sic] the last two and a half years; always thought him a hardworking industrous [sic] man; Randall never told me that the deceased ever said she would make away with herself.

By the Solicitor General - There was only one rock near the marks of blood, and if she had fallen over that rock she could only, I think, receive one wound; I could have gone to the prisoner's hut, from where I saw the blood, in five minutes; when I spoke to the prisoner about the axe handle, he pointed to the spot where I got it from; he did not say whose property it was; the wounds were such as might be occasioned by an instrument of that description; I have seen the wounds; I do not think she could have got them by a fall from the rock; if she had fallen on the three prominencies [sic], so exactly placed as to receive the head, she might have got three wounds.

James Tobin, conductor in the Sydney Police, gave evidence nearly to the same effect as the last witness.

Mr. John Neilson, surgeon, practicing in Sydney - I saw the body of Ann Davis at a public-house at the King's Wharf; I was called to examine it; there were about a dozen wounds on the scalp; most of them penetrated to the skull; on opening the head, under where the wounds appeared, extravasation of blood appeared on the right side and also on the left; I examined the lower jaw and found it fractured in two places; I also opened the chest, and found on the left side extravasation of blood, and three or four ribs fractured; the extravasation of blood on the surface of the brain was the cause of her death; the wounds on the scalp were confused larcerated wounds; in my judgment those wounds ere inflicted by repeated blows with a heavy instrument [axe handle produced]; the one now produced would cause those wounds; I saw this handle at the coroner's inquest; there are marks of blood upon it; I think the marks of blood appeared fresher a the time I saw it at the inquest than it does now; I believe the name of the deceased was Ann Davis.

Cross-examined by Mr. therry - It is not at all likely the wounds might have been received by falling from the rock; I think the wounds on the ribs must have taken place at the same time as the wounds on the head; I heard some of the jury express a wish to see the place where it was said she met her death.

John Lackman re-examined - I have seen the axe handle at the prisoner's hut, and I know it belongs to him; the marks on it appear to be blood; in carrying the woman on the wheelbarrow blood could not get on the axe handle.

By the jury - When the prisoner called me from the boat his hands were all over blood.

Cross-examined by Mr. Therry - Having blood on his hands might have been occasioned by his assistance to get her home; my hands were marked with it from the same cause.

The case for the prosecution closed here.

Mr. Therry took some legal objections to the offence, as stated in the indictment, not being in accordance with the testimony given.

His Honor remarked that was a question for the jury to decide.

Mr. Therry called the following witnesses for the defence:-

Peter Hill Rapsey, merchant - I know the prisoner at the bar; I have known him nine years; I always considered him a quiet, peaceable man; I waa [sic] on the Coroner's Jury; Sarah Randall said before the inquest, that the deceased had expressed her intention of destroying herself.

James Farrell, labourer - I have known the prisoner for the last seven years; I knew Ann Davis; I saw her two months ago; she complained of three of her ribs being broken; being at Sydney she got intoxicated, and got her ribs broke,

Cross-examined by the Solicitor General - she did not tell me who broke her ribs; I never asked.

Other witnesses were called, who gave the prisoner the character of being an industrious, sober hard working man.

This closed the defence.

His Honor summed up the case with the greatest minuteness, recapitulating the whole of the evidence, Guilty.

His Honor after a most impressive address, sentenced the prisoner to be executed on Monday morning next, and his body to be given to the surgeons for anatomization.[2 ]

 

Notes

[1 ] See also Sydney Herald, 12 August 1833; Australian, 12 August 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 82.

[2 ] Byrne was hanged at the Sydney Gaol on Monday, 12 August 1833.  He denied his guilt to the end: Australian, 12 August 1833.

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.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.  By s. 4 of the Act, the judge was given power to stay the execution; for an example of that, see R. v. Fitzpatrick and Colville, 1824.

Under s. 5 of the same Act, 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