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

R. v. Shield and others [1834] NSWSupC 20

William Fitzgerald, Henry O'Brien, Stephen Fitzgerald, Edward Lynch, and Edward Carroll

murder - manslaughter - transportation, secondary - hulk

Supreme Court of New South Wales

Burton J., 21 February 1834

Source: Sydney Herald, 24 February 1834[ 1]

Friday. - Before His Honor Judge Burton, and a Military Jury.

James Shield, William Fitzgerald, Henry O'Brien, Stephen Fitzgerald, Edward Lynch, and Edward Carroll, were indicted for the wilful murder of John Hughes, on the 25th day of December, 1833, with a piece of wood of no value, inflicting sundry wounds and bruises, of which he died.  The first count charged Shield as principal, and the others accessaries; second count charged Stephen Fitzgerald as principal, and the others accessaries; and the third count charged Edward Carroll as principal, and the others accessaries.

Messrs. Allen and Nichols, for the prosecution - and Messrs. Therry and Williams for the prisoners.

Charles Leonard deposed that he was in company with Hughes on Christmas day, and had been drinking with him the day before; Hughes did not return to his master's, and witness went to Blackwattle Swamp, to persuade him to come home, but he refused to do so until the evening, on the plea of being dirty; they then went to the Sportsman's Arms, where they met with Ennis, or, as he is called ``Billy the Bull;" they sat there some time, when word was brought that a man by the name of Walker, an acquaintance of witness, was killed in a row at the Spinning Wheel; they all three immediately went towards the spot to get him away, the witness stopping about five minutes at the Lame Dog, to strip and leave his clothes; the first thing he saw on arriving at the Spinning Wheel, was Hughes fall, but he could not see from what cause, as there was no person near enough to strike him with a stick; witness was struck down himself by some persons, and was insensible for some time; he was taken to the Hospital to get his head dressed, and on his return, he saw Hughes lying dead, under the verandah of Mr. Flynn's house; he did not see any stick in Hughes' hand when he went into the Lame Dog, but he had plenty of time to procure one whilst witness was stripping.

Silas Pearson deposed that he lives opposite the Cheshire Cheese, on the Parramatta road; he was returning home from Sydney on Christmas evening, and when he got near the Spinning Wheel, about eight o'clock, he saw a man standing opposite the house with a piece of railing over his shoulder; he saws several persons standing near the door, and some in a paddock; he heard James Shield, the man he first saw, or, as he is called ``Tom the Piper," challenge the people in the paddock to come out and fight, and he would make miserable men of them; one of the men then came out, and told the prisoner he would fight him if he would put down the rail; several other persons then joined them, and the man fell from the blow inflicted on him, and was carried away; Shields afterward struck down another man, and called out to Carroll to come and finish him; Carroll struck the man several severe blows on the head and breast; the prisoner then pursued another man, and struck him down, and beat him unmercifully; witness went towards the last man that was struck down, and found from the gurgling noise that was in his throat, that he was alive; he asked the people why they did not lift the man up, or he would be choked with his own blood; one of the persons present, said, ``that if he did not make off, they would choke him also," witness immediately rode off to Sydney, and told Mr. Jilks at the Police-office, what had occurred; constables were sent, and Shield and Carroll were secured; the only two of the prisoners at the bar, witness could identify as being present.

John Shepherd deposed that he was at the Spinning Wheel on the evening of the row, in company with a man by the name of Cochrane, and saw Hughes lying dead; Cochrane also, was struck down, receiving some severe blows from Shield and another.

Zachariah Pamment remembers seeing Stephen Fitzgerald at the Spinning Wheel, and saw him throwing brick-bats.  This evidence corroborated what was before stated.

John Cochrane stated the same.

Catharine Keith examined - That she was near the Spinning Wheel on Christmas Day; saw Lynch, one of the prisoners at the bar, strike a man by the name of Bennett several times, and also received a blow herself on interfering.

James Barnes was examined, but his evidence was not exactly clear.

The Judge here ordered that William Fitzgerald and Henry O'Brien should be discharged, as there was no proof against them.

Dr. Bland examined - Deposed that he was called in to see the body of Hughes, and found a wound in the forehead, and a contusion over the left ear; considers that he died of sanguineous apoplexy, which might be produced by a violent blow on the head, when deceased was in an excited state.

Several witnesses were called on part of prisoners, but their evidence was not strong enough to shake the testimony of witnesses for the Crown.

The learned Judge then summoned up, and stated to the Jury that there were two material points for their consideration.  The first was, whether John Hughes met his death in the way and manner laid in the information; and secondly, whether James Shield gave the blow, the others aiding and abetting.  The act of one in this case is the act of all, inasmuch as they were all present at the row, and have been identified by several witnesses, as using great violence towards several persons.  If the Jury considered that it was a drunken affray, the prisoners must be found guilty of manslaughter; but if they thought that the affray was not a drunken row; but arising from malice aforethought, then their verdict must be, guilty of murder.

The Jury retired for about 10 minutes, and returned a verdict.  Guilty of manslaughter.

The Judge then addressed the prisoners, and told them that he had come to the conclusion, that he ought to pass sentence immediately, on seeing the immense concourse of people in the Court, who had been drawn together by the interest which this trial had excited.  They had been convicted of a crime very near murder.  The sentence of the Court, therefore, was, that they should be transported for the term of their natural lives.[2 ]

 

 

Forbes C.J., Dowling and Burton JJ, 8 March 1834

Source: Australian, 10 March 1834[ 3]

 

Mr. Therry begged to take the opinion of the Court on the case of Stephen Fitzgerald, who had been convicted during the late criminal sessions, and was now on board the hulk, about to be sent, as he was informed, to Norfolk Island.  He was free when tried, and according to the Act of Council - - - - - -

The Chief Justice observed, that when free men were sentenced, the Judges made a  practice of sentencing them merely to be transported, and they were then sent away under the provisions of the law, - in case of convicts again convicted, they always added to such Penal Settlement as His Excellency the Governor should be pleased to appoint.

Mr. Therry said this was a peculiar case, for the prisoner had originally been transported, had become free, and went home, whence he had returned as a free emigrant.  The words of the Act were persons who had arrived free in the Colony, now he had arrived free.

Mr. Justice Burton stated he would write to the Governor at the rising of the Court, as he had tried the prisoner, to prevent his being sent to Norfolk Island.

 

Notes

[1 ] See also Sydney Gazette, 25 February 1834.  The Australian, 24 February 1834, reproduced the Herald's report in preference to that of its own reporter.  The trial judge's notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2413, vol. 10, p. 105.  Some of the defendants were convicts, and some free.

 

[2 ] For a comment on the sentence, see Australian, 24 February 1834.

[3 ] On 8 March 1834, the court also had to decide whether to detain a convict on board the hulk rather than sending him to Norfolk Island.  His evidence was needed in a trial.  The court ordered that he be examined de bene esse rather than the detention being ordered.  The Sydney Herald, 10 March 1834 reported the prisoner as being Stephen Fitzgerald.  The Australian, 10 March 1834, reported the name as Edward Carroll, the cases concerned being against a defendant called Fitzgerald.  The Herald seems to have confused two cases, and two distinct applications.

Published by the Division of Law, Macquarie University