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

R v Dickenson [1833] NSWSupC 74

murder - Liverpool - indictments, error in

Supreme Court of New South Wales

Dowling J., 2 August 1833

Source: Sydney Herald, 5 August 1833[ 1]

Friday. - Before Judge Dowling, and the usual Commission.

John Dickenson, was indicted for the wilful murder of Mary Smith on the Liverpool road, in the County of Cumberland, on the 1st of June.

Thomas Todd - I belong to the Mounted Police; on the 1st of June, I saw prisoner on the Liverpool road between nine and ten o'clock; James McNally and W. Slater were with me; we heard the scream of a female; when we got to the spot whence the voice proceeded, we saw prisoner apparently on his hand and knees, he jumped up and asked what we wanted, Salter asked him what he was doing, he replied trying to get the woman home; there was a woman on the ground between five and six yards from prisoner; she was lying on the ground by the side of the road with her clothes much torn; I saw blood on the ground; we could see it by the light of the moon; it was by the side of the woman; she was insensible; she was spoken to, but made no answer; Slater ordered us to handcuff prisoner, and we did so; McNally carried the woman to the Plough Inn, about five hundred yards from the spot; Mrs. Ireland washed her head in which there were two large cuts, one on the side, the other on the back; she never spoke, but groaned while McNally carried her; a cart was got and she was sent to the Hospital; we went with her; nothing happened to her from the time she was picked up until she was left in the Hospital, that could increase the injuries she had already received; she appeared about fifty years of age; she was left at the Hospital between twelve and one o'clock; I did not hear her name at that time; while her head was being washed, prisoner was in the room, he was not sober nor very drunk, he could speak; prisoner said it was a woman he lived with, but did not say how she came into the state in which she was found.

Cross-examined by Mr. Rowe. - Prisoner appeared to have been drinking a good deal; the woman might have been drunk, but I think she could not speak from the injuries she had received; we came from Sydney that night to look after bushrangers; we saw no stick near the woman.

John Slater corroborated the foregoing witness with this addition - When we came up to the man I observed his clothes were covered with blood, I asked him how it came there, and he replied it was dirt from knocking about the road; at day light next morning, I examined the ground where the woman was found, and there was a circle as if she had been dragged along the ground; I saw a pair of woman's shoes, I observed that the woman had on no shoes; prisoner's face had a scratch upon it, it appeared as if the skin had been knocked off; a woman's nail might do it as well as any thing else.

Cross-examined. - Prisoner was drunk; he jumped up in surprise when we came upon him; I cannot say whether the woman had been drinking; prisoner would not give me a straight-forward answer, which might arise from drink or some other cause.

Dr. Mitchell - On the morning of the 2d of June, a woman represented to be Mary Smith was received in the Hospital, she was brought in a state of insensibility by the Police from the Liverpool road; there were three incised wounds on the head which had penetrated the scalp, and caused considerable hemorrhage; on opening the head I found a determination of blood to the brain, from all the circumstances of the case, the loss of blood, and the determination to the brain, together with exposure to the cold, no doubt caused her death.

John Ireland. - I reside at the Plough Inn, on the Parramatta road; I am a coach proprietor; I was in Sydney on the first Saturday in June; I was inside the coach, and had got as far as the Brickfield Hill when prisoner and deceased got upon the coach; I knew the prisoner but not the deceased; they came together; I did not perceive then, being inside, that they were the worse for liquor; on arriving at the Plough Inn, they paid their fare for coming so far, and went together into the tap-room; they were then drunk; they called for liquor, but none was given them; they had some beer, and bread and cheese; there was a misunderstanding and some words ensued between them; to prevent the rest of the passengers from being annoyed, I shut the tap-room door; I remained behind, and after the coach was gone, deceased called upon me to protect her, as the prisoner wanted to beat her; he heard this; they had a bundle with them which was given up to me, as they said they wanted to stop; after that, the woman wanted the bundle to proceed on the road, I refused it; it was about seven o'clock; by this time they had got more sober, but not to say sober; they went away together towards the Liverpool road, and were to come for their bundle the next morning; I went to bed; about ten o'clock I was called up, and found the woman lying in the tap-room, and my wife washing her temples, on which there was wounds; I sent her in my chaise cart to the Hospital; she was alive and made a noise in turning her; she was a woman in good health; I don't know her name; I don't remember ever seeing her before.

Cross-examined - It was the usual language of low drunken people that passed between them; the bundle contained a pair of stays, two shawls, and other articles, they were all new and had been purchased that day; I have known the man for several years, he was always considered a hard working man; they went on the road together by mutual consent, the difference they had was made up; he told me he would not touch her.

This closed the case for the prosecution.  His Honor then held that there was a failure of proof as to the name of the deceased, of which the prisoner must have the benefit.  He was therefore acquitted and discharged, after a caution from the Judge to beware of intoxication.

Mr. Rowe defended the prisoner.

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 1.

Published by the Division of Law, Macquarie University