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

R. v. Jenkins and Tattersdale [1834] NSWSupC 118

murder - separation of powers - criminal procedure - Wardell, murder of - legal practitioners, division of profession - convict escape - approver, evidence by - bushranging - evidence, corroboration - Petersham - Cook's River

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 20 September 1834

Source: Sydney Gazette, 25 September 1834[1 ]

The Solicitor General, in the absence, and by the desire of the Attorney General moved the Court, to fix an early day for the trial of certain persons, now under commitment for the wilful murder of the late Dr. Robert Wardell.  He would beg leave to propose next Friday as the day of trial, and he would at the same time acquaint the Court with some of the grounds upon which he made the application.  The magistrates had examined on oath at the Police Office, an accomplice in the crime, and his evidence had been circulated through the public press.  The case would wholly turn on the evidence of this person, and from the confined state of the gaol, as well as from the publicity which the particulars of the case had gained, it was absolutely impossible to guard against the approver being tampered with by the rest of the prisoners, or other persons employed for that purpose.  Independently of this, the approver might die before the criminal sitting of November next, and by this means justice would be frustrated.  He trusted that before their Honors should decide against fixing upon an early day for this trial, they would hear him upon the point, as he contended for the requisition he had just made, as a right to which his colleague, (and therefore to himself, in his absence) was by virtue of his office entitled.

The Chief Justice, after some deliberation, said, his learned brethren had agreed with him that there was no particular fact shewn to induce them to grant the application just made to the Court.  The local enactment had provided that the criminal sittings of the Supreme Court should be held in the respective months of February, May, August, and November in each year, and if the Judges were to depart from that rule on the present occasion, he would at once say, without making any more pointed allusion to the matter, that the Court would be justly chargeable with yielding that concession from the personal eminence of the unfortunate individual with whose name the application was identified, which they would have denied under more ordinary circumstances.  It would be establishing a precedent, extremely inconvenient to the despatch of public business, which might with equal justice be pleaded on every other occasion.  The learned Chief Justice then stated it was entirely new to him to hear that the Attorney General was possessed of the royal prerogative to call upon the Court to sit whenever he thought proper: circumstances might occur, and indeed had occurred to require the Court to sit specially for the trial of cases of insurrection at the distant settlements of the colony, or from the crowded state of the county gaols, but in this instance there did not appear to be any thing which could be pressed upon the Court as in the other cases, and they therefore did not feel themselves called upon to depart from the rule laid down for their guidance.

The Solicitor General observed, that he applied on behalf of the Executive, who could, if necessary, issue their mandate to the Court in this respect, and he therefore claimed the granting of his motion as a matter of right on their behalf.

The Court remarked, that it had always been customary hitherto, in such matters, for the Executive to communicate direct with the Judges.

The Solicitor General said he had been instructed to pursue the present course; and he would take this opportunity of pointing out to their Honors the bad precedent a refusal on their part would furnish on any future Bench, who might not preserve so good an understanding with the Executive, as was at present happily the case; and induce them, at some future time, to place a veto on the wishes of the government.

The Chief Justice said, he had the greatest possible wish to preserve a good understanding with the Executive, and any proposition which might be submitted by them to the Bench, would be treated with respectful consideration.  Allusion had been made with regard to the precedent which the decision of the Court on this occasion would furnish, but what was to be said of the precedent established in the present motion of the Attorney General to the Court?

The Solicitor General observed, that he for himself was not disposed to give up the privileges attached to his office, and he should therefore, though with the utmost respect, beg leave to enter his protest against their Honors' decision.

The Court enquired how they could possibly sit as a Court of Oyer and Terminer, apart from one of General Gaol Delivery, which under the enactment were inseparable?  The discussion then ceased.

 

Forbes C.J., 20 September 1834

Source: Australian, 26 September 1834[2 ]

 

His Honor stated that the King was the fountain of justice, and might institute Courts for its administration at what time, and in what part of the dominions he pleased - but such Courts must proceed according to the source of the common law - that is by the intervention of grand and petty juries, in the presentment and trial of offences - that in exercise of this constitutional prerogative His Majesty was guided by the Counsel of responsible advisers - that the Lord Chancellor, as the King's highest legal officer, was in the Council, before which the expediency and propriety of issuing a special commission for the trial of crimes, on any particular public emergency, was of course deliberately considered, before such an extraordinary measure was resorted to - but it would be quite new in the history of Courts, if it were in the power of the Attorney and Solicitor General of England to call them into existence whenever they thought proper - it would be something not very unlike assuming to themselves the exercise of one of the most important prerogatives of the Crown of England.  If His Excellency the Governor should communicate to the Court the particular circumstances, and state his opinion as the head of the Executive, of the case, calling upon the Court to proceed as in a case of emergency, the Court would give it every consideration and attend to the suggestions of the Government - but it could not depart from its rules at the requisition of the Crown Lawyers.

 

Forbes C.J., 7 November 1834

Source: Sydney Herald, 10 November 1834

 

TRIAL OF THE MURDERERS OF

THE LATE DR. WARDELL.[ 3]

Friday. - Before His Honor the Chief Justice, and a Jury of Civil Inhabitants.

John Jenkins[ 4] and Thomas Tattersdale stood indicted, for that they, not having the fear of God before their eyes, but being moved and instigated by the devil, did, on the 7th September last, at Petersham, in the Colony of New South Wales, with a gun or pistol, shoot one Robert Wardell, inflicting on his left breast a mortal wound, of which he then and there died.  The prisoners pleaded Not Guilty.

The Chief Justice enquired if they were defended by Counsel, when Mr. Kinsman rose and informed His Honor that he had received a brief through an Attorney, and had undertaken their defence.

The Solicitor General rose and said, that on a solemn occasion like the present, it was to him a matter of extreme regret, that under any circumstances he should feel himself obliged to object to Mr. Kinsman's appearing at that Bar as an Advocate; but it was a duty which he owed to himself and the profession, of which he would indeed be unworthy a member, if he made such an objection without proper grounds.

The Chief Justice said, that he then sat there for the purpose of trying a criminal case, and could not entertain the objection made by the Solicitor General; he would however enquire if Mr. Kinsman had enrolled himself as a Barrister of the Court; Mr. Kinsman answered in the affirmative.

The Solicitor General said, that he would not press the objection farther on the present occasion, which was the first opportunity which had presented itself; but he intended that, on the first day of the next term, he would move this honorable Court that Mr. Kinsman's name be erased from the list of Barristers of the Court. [5 ]

Mr. Kinsman said, he was sure that no Gentleman who had the honor of being acquainted with the Learned Solicitor General could more admire the character and public spirit of that Gentleman than himself; and he felt much happiness in stating, that whatever motion the Learned Gentleman might be induced to press on the attention of the Court, as to himself, it would be answered in the most satisfactory manner; the case then proceeded.

John Neilson. - I am a Surgeon; I knew the late Robert Wardell in his life time, by sight; I saw him dead, about the 8th September, at his house at Petersham; I was called upon professionally; I opened the body; on examining the body I found a gun shot wound on the left breast which, on being probed, was found to take a direction upwards towards the throat; I traced it to its utmost extent, it was a mortal wound; on laying it open, and taking off the collar bone, it was found that the left subelavian artery was ruptured - that was sufficient to cause death; I should think that a person would not live above a minute after from loss of blood, in the wound a third of a leaden bullet was found at the mouth of the ruptured artery; I considered that to have caused the wound; from the time of the death of the deceased until I saw him, from the appearance of the body, might be about twenty-four hours; it was on the 8th day of September, on a Monday.

Emanuel Brace. - I am eighteen years of age; I am a prisoner of the Crown; I have been nearly two years in the Colony; I was assigned to Mr. Adam Wilson; he lives on the Cook's River road; I was in his service nineteen months; on Saturday my master gave me a pass to go to Court; he wanted to keep me in the watch-house; the pass stated that all constables were directed to take me into custody; I did not go to Court, I absconded and crossed the river; I stopped about Mr. Wilson's place until the following Tuesday; when I was standing on a rock, and a man appeared whom I at first thought was a constable, he told me he was in the bush, and had absconded from George's River iron-gang; we stopped together a short time, when he went away and returned in the afternoon with a musket; he did not say where he got it from; we stopped about that place a day or two; we had some powder and ball; on Wednesday we went to Reuben Hannam's place, where we saw an old man, his servant; Jenkins had a musket and a cutlas; he bid him to stand; he asked him to deliver up his key, and lay down on his face; he gave up the key, and I went into the hut, and took a fowling-piece, some tea, sugar, bread, and wearing apparel; Jenkins remained over him with the musket cocked; after I came out, he marched him in the house, and he told me he tied his legs together, and one of his hands behind his back; it was in the morning; we proceeded across the creek, and clambered over some very high rocks; we sat down and had something to eat; Jenkins discharged the old man's fowling-piece, and threw the old musket behind a dead log, together with a white hat, cutlass, and powder-horn; the musket taken from the old man appeared to have been cut down; we travelled down the creek, and near Mr. Thorpe's we made a raft, floated our clothes across the creek, and swam over ourselves on the Dr. Wardell's ground; I don't think it was called Petersham; I knew Dr. Wardell's estate extended to the river; after crossing, we proceded [sic] through the brush as far as a fence, where we made a fire, and having a kettle, we boiled some tea, and took our dinner; after that we went within about three quarters of a mile of Cooper's Distillery, towards the Old Race Course; we returned home to the place in the evening; we had left our things there covered with bark and leaves; we stopped there all night; we did not make any place of shelter that night, but on the following day we made a bark hut, and stopped there about a fortnight, until we saw a man coming through the swamp with a gun and dogs, when we removed; it was on Friday, to a kind of valley, where we stopped that night; we fell in with Tattersdale, who is a shipmate of Jenkins, opposite his master's house; Jenkins wanted him to join us, and Tattersdale wanted sadly to join us himself; I told him not to do so, but he would come, and packed up his clothes and provisions, and went along with us; we built a third hut of boughs and leaves, at the distance of half a mile from the second hut; I think it was on Dr. Wardell's ground; after Tattersdale joined us in the evening, we stopped at the hut all night, and built the third hut on the following morning; we removed our things to it, consisting of provisions, clothes, and fowling-piece; after making the hut, we lay down and slept, and went to the creek and washed our shirts; we remained there until Saturday, when Tattersdale told us where we could get some money and clothes of an old quarryman; it was at the back of Mr. Turner's, Tattersdale's master, nearly opposite the Distillery, on the Ultimo side of the road; when we went to the quaryman's, Jenkins sent me in to light my pipe; Tattersdale stopped behind, because the man knew him; Jenkins told me if any person was there to call him in; there was a man there in bed, and Jenkins came in; the old man was going to get up, when Jenkins was going to knock him on the head with the butt-end of his gun; Jenkins asked him for the key of his box, which he gave to him, when Jenkins opened the box, and took therefrom a velveteen jacket and trousers, some tea and sugar, about three pounds of powder, and part of a leg of mutton; Jenkins told me to go and take his clothes from under his head, where we found about one pound in money; Jenkins tied his hands and we went away; Jenkins put a black silk handkerchief on his neck which was taken from the old man, and the rest of the things were put into a bag and concealed under a tree; there were a velveteen jacket and trousers, lined with flannel, two light waistcoats, a silk handkerchief, and three razors in a case; the tree was at a distance of about twenty yards from where the hut was; there was also a towel which Tattersdale brought with him, and a pair of scissors which had been taken from the old quarryman; they were with the rest of the things on Sunday morning; we made some tea and had breakfast, after which we amused ourselves by firing at a target on a red gum tree; we had cut a square piece out of the tree for the purpose of mixing our flour upon, in the centre of which we put a black mark; none of the shots went within the square; after we had so amused ourselves we lay down and slept; I was between asleep and awake when I heard the sound of a horse's feet, and looking up to see who it was, I saw a gentleman on a white horse, who asked me who I was, but I made no answer; Jenkins looked up, and on receiving the same question answered, ``I am a man;" he asked, who are the other two? when Jenkins answered, they are men; the gentleman then stooped a little from his horse, and took up a small stick which was leaning against a tree, and flourished it over his head as if beckoning for assistance; he said, you are only three poor run-aways, you had better come along with me; he pranced about the hut, and Jenkins dodged him and took up a rock-stone and told him to go away, but he would not; I heard Jenkins whisper to Tattersdale, to go and fetch the musket, when I said, we need not do that, it would be better to go and receive fifty lashes than to risk our lives; Tattersdale moved towards the bush and got the musket, when Jenkins took it out of his hands, which, on the gentleman observing, he said, Oh, for God's sake don't do that, Jenkins answered - By G-d I will!  The horse was prancing back and Jenkins proceeded up to the gentleman, presented the piece and fired, when the gentleman said - Oh dear, I'm killed the horse turned short round, and started off at full speed, and went a great distance, over some rocks; we packed up our things and went towards the river, which we crossed at Mr. Thorpe's, near the place where we crossed before; I thought he was not hurt, but had rode away to bring the police; we had some flour, which we threw away after going some short distance, we took several articles with us, Jenkins had the black handkerchief taken from the quarryman on his neck; we swam across the river, carrying the things on our heads, Tattersdale was nearly drowned with a load of things on his head, but Jenkins swam after him and saved him; we proceeded as far as Pickering's Punt, near Mr. Prout's place, in a hut on whose Farm we stopt on Sunday night; on the following morning we made a fire with brush, a short distance off, and cooked our breakfast; we then went off towards King's Grove, and went again towards the River, on the banks of which we waited until the tide was down, when we swam over to Mr. Sparke's Farm; we crossed Mr. Charles Smith's Paddocks, and crossed the Parramatta Road, near Flinn's, public-house, sign of the Lame Dog, at the back of which, in the bush, we stopped all night, on Tuesday morning we went into Sydney, and went as far as ``The Sailor's Return," on the Rocks, where we got our breakfasts and something to drink, after which we roamed about Sydney, up one street and down another, and getting something to drink, until evening, when we went back again and met Tattersdale, who had been afraid to go with us into Sydney, as the constables knew him, they did not know us; I read in the newspaper at ``The Sailor's Return," that Dr. Wardell had been murdered, until that time, I did not know that it was Dr. Wardell who had been fired at; this was on Tuesday or Wednesday morning, we crossed Cook's River, where we crossed the first time; we went through the brush and forest, and went on the to the Seven-mile Beach, about four miles from where we crossed the River; we proceeded a considerable distance, when we met an old man, an oyster-gatherer, whom Jenkins asked for some tobacco, which he was about giving to him, when he heard some money rattle.  Jenkins took his hat off, and found three shillings which he took, saying he was pushed; Jenkins also took a shirt out of his bosom; Tattersdale begged Jenkins not to leave him miserable, when they returned his shirt and a shilling, and the old went in; we then went along a creek where there was some fresh water, and got something to eat; we then went on and came to a house where I entered, and asked the way to Port Aiken; the man said he hoped we were not in the Bush, and we told him not; we asked the man to sell us some provisions, which he refused, but cut us off some bread and beef; Jenkins stood outside, as he had the gun, we then went away; it began to rain, and we travelled over rocks until we came to a rock which hung over, under which we made a fire, and dried our clothes; we then came to a fence which we ran down until we came to a hut where no one lived, and seeing a footpath, we followed it until we came to a farm, where several men were at work; we lay in the Bush until they went to work from their dinners, when we went into the hut and and [sic] asked for something to eat, when an old man inside, said ``yes, my lads," and went into an inner room and brought out a musket, when Jenkins knocked him down, and told me to take the musket, which I did, and we then took to our heels and ran off through the Bush; there was a great alarm, and we thought we were closely pursued; we met a man on a white horse, and Jenkins went up to him and asked him to give him some tobacco; he said he had none; Jenkins took his hat off his head, but when the man gave him a shilling to buy some tobacco, he returned it to him; Jenkins tried the fowling-piece which we took from the hut on Friday, and not being satisfied with the charge, put five balls into it; we got as far as Judge Stephen's farm, when Tattersdale left us for the purpose of getting some provisions, as there was a man there who knew him; we stopped in the Bush at some distance from the house, when the Police came and took us; when I was taken into Sydney, I was taken to the Chief Magistrate, where I made a confession; I did not tell any thing to the Policemen.

Cross-examined. - We were in the bush five weeks before I was taken; we used to get provisions from Sydney; I used to go into Sydney for that purpose; I went along the road, I never was molested, I never met any of my old acquaintances; I had seen Tattersdale before, but I did not know Jenkins; I never had been into Mr. Turner's house; I did not know the Petersham Estate; I don't know how far the third hut was from Dr. Wardell's house; I had heard Dr. Wardell's character, but I was unacquainted with his person; I never was at his house; the night on which the robbery was committed on the old quarry-man was perfectly dark, there was a light in the old man's hut; we got up early on Sunday morning; it might be about ten o'clock when we were firing at the target; I thought that it was dangerous as we might give the alarm; it is not the usual way in which we amused ourselves in the bush; I never loaded the musket, Jenkins always loaded it himself; after we had done firing, Jenkins cut a musket ball into four quarters, and loaded the gun with two pipes full of powder, that is the usual charge; we had been asleep before the gentleman had rode up; he had a glazed or black hat on; I don't recollect his other dress; I was so frightened I did not know anything; I read the account of the murder to Jenkins, at the Sailor's Return, I did not read anything about a reward;[ 6]  the policeman said to Jenkins that there was a murder against him; Jenkins seemed anxious to get out of the Country.

Re-examined. - When I read the account in the papers to Jenkins, he laughed it off; I had no doubt but it was the Gentleman that was shot by Jenkins, from the description of the horse; I could then recollect the days and months on which the various occurrences took place better than I can now.

By a Juror. - I am sure Jenkins charged the piece with four slugs after having fired at the target; the kettle in which we boiled our tea was left in the bush.

John Chester. - I was in the Mounted Police in September last; I went along with Corporal Paton to Judge Stephen's on the 12th September; we put our horses in the paddock, and I went into the kitchen to bake some bread, when the prisoner Tattersdale came into the kitchen, and I told him to sit down and consider himself my prisoner; I then began bouncing him, and asked him who the men were that I saw with him, when he acknowledged that they were two men in the bush, and pointed out the direction in which they lay, but cautioned me how I approached them, as they were armed, and had threatened to shoot the first man who would go near them; I then went along with Corporal Paton, and apprehended the prisoners, Jenkins and Brace, concealed behind a log; the fowling-piece produced is the same which I found in their possession - there is an owner for it.

Cross-examined. - The prisoners stood up without their arms and readily surrendered themselves; there was nothing said on the road with the prisoners about a reward; while Brace was in Colonel Wilson's house, I had charge of Tattersdale outside; I asked him if he knew anything about the murder, he said he did, and if he had a chance to turn King's evidence, he would tell all about it - but he thought he should not have the chance.

Re-examined. - He meant by saying he thought he should not have a chance, that the other man would tell all about it, meaning the murder of Dr. Wardell; Jenkins was left in No. 5 watch-house; I told him if he knew anything about it, he had better tell.

By the Court. - I did not offer him any reward or hope for telling.

Re-examined. - The bag containing the ammunition is in the same state in which it was found.

Patrick Burns. - I was assigned to the late Dr. Wardell; I do not recollect the day of the month on which he was missed, but it was on a Sunday, after we had returned from prayers, and while we were at dinner, that the alarm was made of his being missing, and we were all ordered out to look for him; Mr. Taverner and Mr. Hearn accompanied us; we continued our search until the moon went down, when we gave it up; on the following morning we found the horse in the paddock; I was not present when he went off in the morning; when the horse was found all hands were called into the paddock, as it was inferred that he must be somewhere near the place; the overseer found the master's hat near a hut made of boughs, and the body was found about half a mile distant; I found the body myself, when going from the hut where Mr. Johnson left us, for the purpose of getting some provisions; the body was in the head of an oak tree; one of his legs was bent under him, and one hand was in the fall of his trousers, I called to a man named George Bell, and told him the body was there; we then called, and Mr. Johnson and Mr. Taverner came up; we never touched the body before they came up.

Cross-examined. - The body was lying in the branches of the oak tree; he was lying flat on his back; I did not perceive any rent in his coat; there was a deal of blood on his clothes.

David Johnson, Esq. - I remember the day on which the body of Dr. Wardell was found; it was on the 8th September; I was in company with my brother and several other persons; we were searching the enclosures in order to discover the body; after searching some time, we were informed by Mr. Abraham Hearn that a hat had been found near a hut, who expressed his belief that the Doctor was no more; we proceeded towards the hut spoken off, where we observed evident marks of some men being there; in searching about the place I discovered, concealed in the hollow trunk of a tree, several articles of wearing apparel, a velveteen shooting coat, two waistcoats, a pair of trowsers, and a neck handkerchief; we observed a tree which appeared to have been fired at, as at a target; my brother and Abraham Hearn proceeded to Sydney for the purpose of informing the police, and left us to search for the body; we searched about three hours, when I saw one of Dr. Wardell's men, who said he thought he heard a moan, which we found to be the lowing of a cow at a great distance; I saw a track on the ground which, from its size, I took to be that of Doctor's horse, and, in following the track, I saw two of the men whom I had left at the hut, they called, and on going to them, they pointed out the body of the Doctor by the side of an oak tree; I traced the horse to within about fifteen yards of the tree, there was a find of foot mark from the horse track to the tree about five strides, which I took to be the mark of the Doctor's foot, he having fallen off the horse from exhaustion, and had risen and attempted to run on, when he had fallen on the head of the tree; there were no marks of blood about the place where I observed the foot-marks; the ground was rather soft and might have absorbed it; I took some trouble to discover traces of blood, but could not; from the hut where the hat was found, the body could not be seen, nor the tree; there was a hill or rising ground between; I would know the things again which were found in the tree.

Cross-examined - I should imagine that Dr. Wardell was shot at the hut, rather than at the tree; there were spots of blood on the loins of the horse at the rear of the saddle; the bridle was never found; I never heard of it being found; on examining the clothes of the deceased, they were found to be saturated with blood; his coat was torn as if in a scuffle.

George Plumridge - I was assigned to the late Dr. Wardell; I was employed as groom; the last time I saw him alive, he was in the stable; it was on a Sunday morning; he was dressed in a fustian coat; he went away down the estate; he was mounted on a white entire horse; I think I saw the horse the same evening, but the night was dark; I went towards him, but he ran away; I saw the horse on the following morning, the saddle appeared to be much knocked about, and there were spots of blood on it.

John Taco - I am a servant to Mr. Rouben Hannam; I was in charge of his house at Cook's River; I know the prisoner Jenkins; I was down in a piece of ground at work, and having to remove a root, I had occasion to go to the house for an axe, and I had to cross over a stile; I saw the shadow of a man going round the house, when the prisoner Jenkins came up to me and said ``good morning," and I returned the salute; I was proceeding to cross the stile, when he levelled a musket at me, and desired me to lie down; I asked what was I to lie down for, when he repeated his command, I lay down on the ground; he asked me to give him the key of my house, and desired me not to look up, for if I did he would blow my brains out; he said I wanted to take his life away, but if I did not mind myself, he would take mine; he gave the key to the other man, and stood over me while the other man went away; I had a few good clothes which I used to go to Church in, and I begged of him not to take them away from me, as I was an old man; they said they were distrest [sic] and must take wherever they could find it; after taking every thing I had, the prisoner made me walk into the house, when he made me put my hands behind me, which he tied, and also fastened my left leg behind my back; I drew myself along the ground, and got a knife, with which I cut the rope, and gave an alarm to the neighbors.

Thomas Betterson - I am a quarryman; I reside under a rock at the Ultimo Estate; I remember being robbed, it was on a Saturday evening; a man came to me and asked if there were any lime burners about?  I told him he was astray, as they were on the other side of the water; he then asked me for a light of a pipe, when I pulled some strips of bark, and gave him a light; I then saw a second man near the entrance of my residence, when I said - there's two of you, the second man answered - yes, you'll know it before we go; he then asked me for the key of my peter, meaning my box, which I handed to him, he then took everything I had out of my box, that was worth taking; I would not swear to the persons of the men; the smaller man took thirteen half-crowns out of my trowsers' pocket, which were under the head of my bed, the prisoner Tattersdale was not present; I knew him, and would have recognized him immediately if he had been there; he used to draw the stone from the quarry, he was assigned to Edward Turner, of whom I rent it; I know the articles produced, they were my property; I also lost some razors and scissors, and some blasting-powder; this bag was taken from me.

Thomas McCaffry. - I reside at Saltpan Creek, near the Punchbowl; I remember having some unpleasant visitors in September last, I remember seeing the prisoner Tattersdale, he was servant to Mr. Turner; I remember one of the men coming to my door, and presenting his musket at me demanded some victuals; I said, ``Very well, my lad, don't be in a passion, I'll give you some provisions," when he replied, ``Don't stir a toot, you b- old b-, or I'll blow your brains out" and made a blow at me with his musket which knocked me on the bedside, Jenkins called one of the men, when the approver came in and knocked me down with a waddie, and while falling the stout man gave me a blow which laid me insensible; while I lay on the ground the third man came in and took my musket, which had been knocked out of my hand; when he held his piece to my breast I put up my hand and pushed it aside, and he struck me with the butt; my fowling-piece was standing behind the door, and I seized it for the purpose of defending myself, when I was knocked down; Jenkins called the prisoner Tattersdale in to take my piece, and it was then that I recognised him; I was then lying on the ground, but had recovered myself; I should have known him before if I had not been knocked senseless; prisoners then took my piece and ran away; my men had just gone out from their dinner, and when I gave the alarm they came down to my assistance; the prisoners crossed the paddock in front of my house, but they could not be overtaken; my gun was loaded with small shot to the depth of four fingers, for I had heard they were about, and was determined to give them a warm reception; this is my piece.

James Smith. - I was overseer to Dr. Wardell; I went in search of him on the morning that he was missing, and found his hat near a hut on the estate, and also saw the tracks of his horse's feet; when I found the hat I knew it to be his, as it was the one in which he usually rode out in wet weather.

W. C. Wentworth, Esq. - I saw the body of the late Dr. Wardell when it was brought in from the bush, before the post mortem examination; I saw a wound on the throat which I at first thought was the cause of death, but which on a more minute examination I found to be a mere abrasion, a shot having glanced off the left shoulder in the direction of the throat - it was merely superficial; the wound that caused death was in the left breast.

This closed the case for the prosecution.

The prisoners being called on for their defence, Jenkins called the following witnesses, Thomas Jones, George Armstrong, and Alfred Inness, none of whom were present.

William Smith, examined by Jenkins. - I am assigned to Captain Biddulph, I heard of the murder of Dr. Wardell, I don't remember the day it took place; I don't remember the day it took place; I don't remember the 7th of September, I never remember seeing you and Brace together on that day or any other day.

Jenkins. - Come now Bill, you have nothing to be afraid of speak up like a man, no harm can come to you, was not I and Bruce in your company together on that day?

Witness. - I never saw Brace before the present time in my life; I never saw you and Brace together; you were never in my company.

Jenkins with the most fiend like expression of countenance - I see its no use to ask him any further questions, he's afraid to speak the truth in my behalf - no witnesses present, no one can come forward for Jenkins - never mind, I can do it like a dog.

Brace recalled by the prisoner Tattersdale. - I met you first on a Thursday, I don't remember the particular day, it was opposite to your master's house, I was in company with your shipmate Jenkins.  You called us into the kitchen, and said you wished to join us, you knew we were in the bush, we told you so; I persuaded you not to think of joining us but attend to your master's business, and keep a comfortable life while you could; you said you were determined to join us, and you then packed your things up; we took tea together, and then we left the house, and crossed the ground to where we made the hut.  This witness was cross-examined at great length by the prisoner, but with no visible object that would be of service to his defence.

Edward Turner. - The prisoner, Tattersdale, was my assigned servant for upwards of eighteen mouths; never knew any dishonesty by him; he was industrious, and his character was generally good; he quitted my house on the night of the Thursday previously to the murder of Dr. Wardell; I saw him about nine o'clock, and missed him on the following morning.

Brace underwent another cross-examination by the prisoner, Jenkins, when the case for the prisoners closed.

His Honor the Learned Judge summed up perspicuously, pointing out the nature of the evidence of an accomplice, and shewing how far it recommended itself to credibility.  In the present case, the evidence of the approver was corroborated in many important particulars. - The law for the purpose of the greater facility in bringing offenders to justice, had made accomplices competent to give testimony, their credibility being a matter for the consideration of the Jury.  Where he was corroborated in one or more important points, the law assumed that the whole of the testimony was true, for it was not necessary that the approver should be supported along the whole chain of his evidence; if such other testimony could be obtained, the evidence of the accomplice would be unnecessary.

His Honor went through the evidence very minutely, and put the case to the Jury, who returned a verdict of Guilty against both prisoners.

The prisoners were then called upon, in the usual way, to make their statements in arrest of judgment, when Jenkins vociferated that he had a good deal to say on the subject; he considered that he had not had a fair trial; in the first place, that b--dy old woman, had been shoved in upon them for the purpose of leading them to their destruction he could have conducted his own case with a better chance of justice; and to shew the manner in which the feeling was against him - the Jury were not out a second, when they brought him in guilty; but he did not care a b--dy d--n for either Judge or Jury, or the whole b--dy Court, when he would shoot with the greatest pleasure if he had his gun here; he became very violent and struck the dock with his hand quite infuriated.[ 7] When his excitement had subsided, His Honor proceeded to pass sentence of death on the culprits.  To Jenkins His Honor addressed very few words, his extraordinary depravity rendered such a course unavailing, which it could be observed had affected the Learned Judge in an extreme degree; and there were few person in Court who did not participate in the feeling of disgust, which the conduct of the prisoner had excited, except some few ruffians, who we observed to exchange smiles with the prisoner during the trial, who seemed gratified at the apparent approbation manifested by them of his ferocity of conduct; indeed, one ruffian was heard to say, what a pity such a fine fellow should die such a death.  Tattersdale expressed his consciousness of his innocence of the crime for which he was about to suffer, and begged to be allowed a few days respite to make his peace with God for his sinful life.  His Honor fervently exhorted him, as a man of mind, happily unlike his depraved companion in guilt, to make the best use of the few remaining hours which the law had left to him in this world.  With regard to the prayer of the unhappy culprit, he had no clemency to exercise, his only hope was in reconciling his offended maker by a sincere repentance.

The culprit Jenkins addressed His Honor; he stated that he wished to disclose the circumstances of several robberies of various descriptions which he had committed, in order that after his death innocent persons might not suffer for the same; he could furnish ample proof of his being the depredator.  His Honor informed him, that he could not entertain any further application of the prisoners, the Clergymen of their respective religions who would attend them for the purpose of affording them religious instruction and consolation in their last moments, were the proper and the only person who could communicate with them on such matters.

His Honor had scarcely finished the last sentence, when the culprit Jenkins with a ferocity unparralleled, rushed forward towards his unhappy companion who stood at some distance from him in the dock, and struck him two violent blows; and in all probability would have added another victim to his murderous appetite, but for the police, who rushed into the dock and with much difficulty secured him.[8 ]  From the sudden and unlooked for movement of the prisoner, those, whose eyes were not directed towards him at the time, and did not observe the blows he inflicted upon his wretched companion, imagined that his object was to effect his escape; and a scene of indescribable confusion then presented itself from the anxiety felt, of the probability of his effecting his purpose with the assistance of the mob, many of the worst description of blackguards who infest Sydney being present.  That portion of the police who were not engaged in securing Jenkins, under the direction of the Under Sheriff cleared the Court; such a scene of tumult and excitement, we will venture to say never presented itself in any Court of Justice for the last fifty years as we witnessed on the occasion; and many were the anxious enquiries of persons in the crowd, as the prisoner was dragged along through the dense mass.  ``My God, my God is he off, is he off," such was the panic which his conduct excited; he was however borne away in perfect security, and lodged in the gaol.  In passing along Hunter-street, the melancholy cavalcade were met by the Chief Magistrate, when Jenkins vociterated [sic] with dreadful imprecations, that he would visit him on Monday night certain, and have that vengeance which he could not now obtain, Jenkins seems to be a man of a naturally blood thirsty disposition; from the moment of his capture, we recollected that he had been sent to the iron-gang, from which he absconded for two desperate assaults, with evidently murderous intentions, on Mr. F. Bedwell, Superintendent for Mr. Manning, to whom the prisoner was assigned, and Captain Biddulph respectively, for the first of which he received a corporal punishment, and for the second, twelve months to an iron-gang; he has been but a short time in the Colony, the whole period of which has been filled up with crime, which, fortunately for the Colony, is now brought to a termination.  The motive which prompted Jenkins assault on Tattersdale, at the conclusion of the trial, was, most probably, the acknowledgement [sic] of the latter, that had he had the chance, it was his intention to disclose the particulars of the murder to save himself; Tattersdale seems to be a man of mild disposition, but very ignorant, and likely to be led, under the control of such a villain as Jenkins, to anything; his conduct throughout the proceeding, before and after the murder, did not seem to partake of that marked ferocity which characterized the conduct of his depraved companion.  They are both in the morning of life, and we trust that their example, holding up to public view, the result of a short course of crime, which consigns two young men to an ignominious end, unpitied, may have the effect such a spectacle is well calculated to produce.[9 ]

 

Notes

[1 ] See also Australian, 23 September 1834 (stating that Burton J. said ``that every Special Commission may hold a Court, which his Majesty, by virtue of his prerogative, could institute in any part of his dominions"); Sydney Herald, 25 September 1834.  On the role played by Justice Stephen's servant, William Stapleton, in the capture of the defendants, see Australian, 6 January 1835; he received a reward of £20: Australian, 27 February 1835.  On 2 February 1835, Governor Bourke also recommended to Rice, the Colonial Secretary, that Stapleton should be pardoned.  He had been convicted too recently for Bourke to be able to do so himself: Historical Records of Australia, Series 1, Vol. 17, p. 647.

For commentary on this case, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 467-470.  Currey notes that Jenkins had been convicted of 15 offences in England and had twice been severely punished for misconduct in New South Wales.  After he escaped he lived with an 18 year old fellow escapee, Emanuel Brace, and the two lived by theft.

Wardell was hated by some convicts: see Convict's Tour to Hell.

[2 ] This passage from the judgment of Forbes C.J. was included in a commentary on this failed application for an early hearing: Australian, 26 September 1834.

[3 ] See also lengthy accounts of the trial in Sydney Gazette, 8 November 1834; Australian, 11 November 1834.

Dr Wardell, with W.C. Wentworth, was one of the founding editors of the Australian, and a leading barrister.

The murder of Dr Wardell was announced by the Australian on 9 September 1834.  The funeral was held on 11 September 1834: Australian, 12 September 1834.  At first, no will could be found and as Wardell had no relatives in the colony, the Attorney General moved that letters of administration of Wardell's estate should be granted to Mr Manning, the Registrar of the Supreme Court: Australian, 16 September 1834; Sydney Herald, 18 September 1834; Sydney Gazette, 16 September 1834.  Eventually a will was found, and as the executor and beneficiary were not in the colony, Wardell's oldest friend in the colony, Wentworth prayed to be granted administration of the estate: Australian, 20 September 1834.  For litigation concerning the estate, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 39.

Wardell had 10 convict servants, whom Mr Manning returned to the government: Australian, 19 September 1834.  Wentworth later moved that Wardell's pending suits be handed to Mr Robert Foster, a solicitor: Sydney Gazette, 25 September 1834.

[4 ] The National Library contains a fine online portrait of the young John Jenkins.

[5 ] See Division of the Legal Profession, 1834.  For Kinsman's further professional difficulties, see In re Kinsman, 1835.

[6 ] The Australian, 18 November 1834, pointed out the inconsistency that there was a reward offered in this case, but not in that concerning a much less prominent murder victim, a shoemaker named Fannon.

[7 ] The Sydney Gazette, 8 November 1834 reported that ``Jenkins addressed the Court and jury with the most blasphemous curses, protested he had an unfair trial by the Judge; that the jury had come into Court pre-determined to convict him; and that the counsel officially assigned to him, was a b--y old woman; and concluded by vowing if he had his will he would shoot every b--r of them."  Tattersdale, the Gazette reported, protested his innocence, prayed for a long day, and begged the judge to order Brace, the approver, to be at the execution.

The Australian, 11 November 1834, said: ``Jenkins said he had a good deal to say, and throwing himself into a threatening and unbecoming attitude, remarked, that he had not had a fair trial, a b--y old woman had been palmed upon him for a Counsel; he did not care a b--r for dying, or a d--n for any one in Court; and that he would as soon shoot every b--y b--r in Court."  The Australian gave a similar description of the conduct of Tattersdale to that of the Sydney Gazette.

[8 ] According to the Australian, 11 November 1834, the judge ``sat in mute astonishment" while this happened, and ``it took a dozen constables to secure and handcuff him.  He was eventually taken down the street, venting the most horrid imprecations against the Judge, Jury, and every thing in the shape of humanity."

[9 ] Jenkins and Tattersdale were hanged on Monday, 10 November 1834: Australian, 11 November 1834.  The Australian said that Jenkins retained his appearance of brutal recklessness to the last.  He was first to ascend the scaffold, ``running up the fatal ladder, and pulling one of the ropes" either to ascertain its strength or to ``exhibit another proof of his hardihood."  The Australian continued: ``He addressed his fellow prisoners as follows:  - Good morning my lads, as I have not much time to spare I shall only just tell you that I shot the Doctor for your benefit; he was a tyrant, and if any of you shoould [sic] ever take the bush, I hope you will kill every b--y tyrant you come across.  He confessed having committed many robberies whilst in the bush, and concluded by requesting the people to pray for him.  On being requested to shake hands with his accomplice Tattersdale, he at first refused but subsequently consented to do; Tattersdale nppeared [sic] much affected - Jenkins desired him not to cry, that in ten minutes time he would be happy enough.  It was painful enough to witness the brutal apathy of this unfortunate wretch, who died as but history tells us, he lived - without hope or fear."

The Australian then noted that on the Saturday before his execution, Jenkins sent for the governor of the gaol, and expressed regret for his conduct during the trial.  He asked that his apology be made to the judge, but then ``declared most fully his diabolical intention of adding crime to crime, viz. - Having drawn out a tolerably correct plan of the Court, he said `just before me, there were four Military Officers sitting, and the sword of one of lay upon the table in front of where I stood; I measured my chances; made up my mind to the attempt, but did not like loosing an opportunity of being avenged on Tattersdale, or else I would have jumped on that table, muzzled the sword, fought my way up to the b--y Judge, and served him out then you would have had some fun.'"  Jenkins died almost without a struggle, though it was harder for Tattersdale.

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, 1826.

Among other crimes, Jenkins confessed to have committed a robbery at the house of Mills, but this took place two days after he was in custody.  Jenkins' aim was to deflect blame from a fellow bushranger: see R. v. Maher, Sydney Herald, 20 November 1834.

Published by the Division of Law, Macquarie University