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

R. v. Kyne [1834] NSWSupC 3

murder - Solicitor General, servants of - hulk - dying declaration - Keck, Henry

Supreme Court of New South Wales

Burton J., 10 January 1834

Source: Sydney Herald, 13 January 1834[ 1]

Friday.  -  Before Judge Burton, and a Military Commission.

Bryant Kyne, was arraigned at the bar, charged with the wilful murder of James Gevan, alias James Gavan, alias James Gavanagh, on the 26th day of December last, in the house of the Solicitor-General, at Water View near Sydney.

The prisoner pleaded not guilty.

(A Coroner's inquest had been held on the body of deceased, at Water View, on the 27th December, when the prisoner was committed under the Coroner's warrant.)

The prosecution was opened by Mr. Therry, and Mr. Rowe defended the prisoner.

It appeared that Mr. Therry had been originally intended to conduct the whole of the case for the prosecution, but by some subsequent arrangement of the court, the Solicitor-General completed the case, and Mr. Therry conducted a prosecution in the adjoining court.

Margaret Donolly deposed, that she was servant to Mrs. Plunkett at Water View, the residence of Mr. Plunkett, Solicitor-General; that her master and mistress, were absent at the time this occurrence took place; that several servants were left in the house besides the prisoner, who was overseer, and that deceased was one of them; on the 26th December, deceased went to Sydney on his master's business, and returned the same evening; prisoner told her, before the return of deceased, that the drawing room and parlour, had been broken open, and on his shewing them to her, she saw that the bolts of both doors had been forced off; she had said this was singular, as there were no other persons then in the house, but the prisoner and an old man; she had herself been walking with a fellow-servant to the water-side; soon after this, deceased returned home, and on being told of the affair, said, that if he had been at home, it would not have happened; when the prisoner replied, that if he did not hold his tongue, he would send him on board the hulk; the deceased said that prisoner could not do that; prisoner said he would, and send him there in irons; deceased said, I did not come out with a man's blood on me; prisoner then swore, that if deceased was not silent he would blow his brains out; prisoner then went out of the kitchen into the passage, and deceased followed him; she heard reports of fire arms a minute afterwards; a man of the name of Horping, ran out to see what was the cause, and then she heard another fire, and went into the passage herself, and saw the prisoner lying on the floor, and deceased leaning against the wall; another man servant named Worricott, took a gun and a pistol down to the water-side, and fired them off, to alarm the persons on board the hulk; she (the witness) accompanied him; shortly after, a boat came off bringing Mr. McKeig and Mr. Keck, officers of the hulk, and some soldiers; witness went to the house with them, and found the deceased moaning and lying on the floor; did not hear him speak; he died soon after, and she saw him after his death; in her cross-examination by Mr. Rowe, she stated, that the house was left in charge of the prisoner, who had gone out for a short time in the afternoon; that she was not aware the doors had been broken open until informed of it by the prisoner, who then appeared to be in a great passion; that after returning with the persons from the hulk, she saw the prisoner in the kitchen with his face bleeding; at the time the deceased followed the prisoner into the passage, the deceased was also in a passion.

Mr. Henry Keck stated that he was Assistant Superintendent of the Hulk; that about 8 o'clock in the evening of the 26th December he accompanied the Superintendent of the Hulk, Mr. McKeig, in a boat to Water View; Mr. McKeig went into the house and witness followed; he saw the boatswain's mate seize the prisoner, and ordered him to tie prisoner's hands; he then went to the passage and saw deceased lying there, who caught with both his hands, the hand of witness, and appeared to be sensible; witness took the prisoner to the serjeant of the guard and delivered him into his custody; witness returned with the hospital attendant and found the deceased in a much worse state, who said ``I am dying", witness replied, ``James I am afraid you are"; (witness had known deceased for some time previous;)  witness asked deceased if he would say any thing to be conveyed to his master and mistress; deceased said he could not speak; on witness desiring him to rouse himself, he asked for a Clergyman, and said, he and the prisoner had quarrelled; that prisoner declared he would blow out his brains, and went for a pistol; met him in the passage and shot him - murdered him; the deceased spoke with difficulty; he died in about an hour and a-half after witness and the other persons from the hulk arrived at the house; witness by when he died; two pistols being handed to witness, he said he knew them; they were lent to Mr. Plunkett by him; that they appeared to have been recently discharged, and one of them seemed as if it would go off when half cocked; witness afterward informed prisoner of the death of deceased, and he said he could not help it.  On cross-examination, prisoner had said to witness that the pistol went off accidentally when scuffling with the deceased; prisoner had several cuts on his head which witness ordered to be dressed; prisoner did not say that deceased had done it, but witness was informed so by other persons then in the house.

Daniel Horping stated, that he resided near to Water View, that deceased came back with him on the night of the 26th December from Sydney; that he went into the house with deceased, and in a few minutes after, heard some dispute between deceased and the prisoner at the bar, in the presence of other servants of Mr. Plunkett's; witness could not detail the whole conversation being rather deaf, but heard something about prisoner's threatening to put deceased in irons and sending him aboard the hulk; witness was about to go home when he heard a report of arms; went into the passage and saw prisoner lying on the floor and deceased leaning over him; they were both holding a pistol, and scuffling, apparently each to get it from the other; witness with difficulty wrenched it from them and fired it through the floor; witness had no doubt there was a bullet in the pistol as he picked up a flattened ball near the spot; he threw the pistol away, and saw the prisoner in getting up from the floor receive two kicks from the deceased, and afterward two blows over the head with the butt end of another pistol, which witness succeeded in getting from him and snapped it, but it did not fire, and he threw it away; the pistols were much alike; the deceased then fell crying ``Oh! I am shot Mr. Horping;" prisoner denied this - but deceased exclaimed, ``I am shot, you villian [sic]," (or you murdering villian [sic]); witness to secure other fire-arms, shut the prisoner's room-door, where he wanted to enter, but witness prevented him; prisoner had said the pistol went off by accident when deceased knocked him down; witness then examined deceased and saw a wound, where the intestines came through near the groin; the wound appeared as if made by a shot; witness could not recollect any conversation between the parties until the person arrived from the hulk; prisoner and deceased were both in a passion when they left the kitchen to go into the passage.

Several other witnesses were examined, whose testimony corroborated the foregoing depositions.  During the examination of William Woricott, a servant to Mr. Plunkett, who accompanied the deceased to Sydney and back, - Mr. Rowe alarmed the Court by being taken suddenly ill.  He was removed into the open air, and by the attention of Dr. Moncrieff (who was present as a witness, having been Surgeon to the Inquest), he soon recovered; went home for a short time, and returned into Court.  His Honor said, he would adjourn the Court for an hour, when Mr. Rowe might be able to proceed with the defence.  In the interval, however, Mr. Foster officiated for Mr. Rowe, and conducted the defence to the close.

When the case for the prosecution had closed, Mr. Foster took an objection to the indefinite name or names of the deceased, as stated in the information - but His Honor over-ruled it, observing, that there could be no doubt of the death of a person as charged in the information, although there might have been some difficulty as to the correct manner of spelling the name.

The Solicitor General and John Weston, Esq. Both spoke to the general good conduct of the prisoner prior to this unhappy affair.

His Honor addressed the Jury, expounding the law of the case and recapitulating the evidence with great precision.[ 2]

The Jury retired, and after consulting some time, returned, and pronounced the prisoner - Guilty.

The judgment of the Court being prayed by the Solicitor for the Crown,

His Honor, placing on his head the dread cap used on such occasions, addressed the prisoner in the most touching and solemn manner, describing the enormity of his offence, and intreating [sic] him to take all possible advantage of the few moments left him in this world, to appease an offended Maker; and to prepare himself for eternity.  The sentence of the Court was, that he should be taken back to the place from whence he came, and on Monday morning next be hanged by the neck till he was dead, and then his body be given over to the Surgeons for dissection - and ``the Lord have mercy on his soul."

 

Execution, 13 January 1834

Source: Australian, 13 January 1834[ 3]

 

Execution. - This morning at nine o'Clock, at the usual place, the last dread penalty of the law was inflicted up Bryant Kyne, who was tried on Friday last for the murder of James Gavansh, when a verdict of guilty was returned.  The said procession moved from the Press room, in the Gaol, at a few minutes before nine o'Clock; the unhappy man was attended by the Rev. W. Cowper.  At the reading of the warrant for his execution - at the earnest solicitude betrayed by his spiritual attendant, and on ascending the fatal platform, Kyne betrayed not the least emotion of tremour or agitation, but perfectly resigned to his dreadful fate, appeared rather to desire a speedy termination of the awful ceremony.  The executioner having completed his duties, this wretched man was launched into the presence of his Maker.  Kyne died almost without a struggle.

The fate of this unfortunate man affords a sad example of the fatal consequences which result from the indulgence of a hasty and vindictive temper.  We are informed that he has left with the Editor of the Monitor a statement in writing, in which he denies any intention of killing the man, for whose life his own has now atoned, alleging that he merely took up the pistols with a view of intimidating his adversary, who was aggravating him by the use of very abusive language, and that when he pulled the fatal trigger it was an act of necessity to prevent the deceased from wresting it from his hands and firing it at himself.  It is impossible to say whether this account is true or not, but it is in some degree satisfactory to think (however melancholy may be the reflection) that the previous history of the wretched culprit affords just ground to believe, that under the influence of the ``furor brevic," he was intent only upon the destruction of his victim, and consequently that the verdict which has consigned him to an ignominious death, has done justice to the laws of God and man.

It is lamentable to record that the station in life which the deceased once held, afforded a very different presage of it after tenor and conclusion, than what this day has witnessed.  Kyne was, we are told, born of a respectable family, and succeeded on coming of age to an estate of £2000 per annum.  His name was placed in the Commission of the Peace at an early period of his life, and he was a Magistrate of three Counties in Ireland.  Of this office, however, his habits of life soon deprived him, and the violence of his temper led him into several duels, in one of which he shot his antagonist dead upon the spot.  It was for this, we believe, that he was transported to this Colony; and it was only a day or two after the event which occasioned his fatal end, that we are told a sum of £200 had been received for him in the Colony from his friends in Ireland.

 

Notes

[1 ] See also Sydney Gazette, 11 January 1834; Australian, 15 January 1834.  The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2411, vol. 8, p. 96.

[2 ] According to the Sydney Gazette, 11 January 1834, Forbes C.J. left three possibilities to the juror: premeditated killing, which was murder; manslaughter; and accidental killing.

[3 ] See also Sydney Gazette, 14 January 1834.

Published by the Division of Law, Macquarie University