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

R v Edwards and Slater [1835] NSWSupC 8

murder - police, criminal defendants - police, death in custody - Bathurst

Supreme Court of New South Wales

Forbes C.J., 13 February 1835

Source: Sydney Herald, 16 February 1835[ 1]

Friday. - Serjeant Thomas Edwards and private James Slater, of the mounted police corps, stood indicted for the wilful murder of William Macdonald, at Bathurst, on the 25th January last, by handcuffing him to the stirrup of a horse on which Slater was mounted, and which, being a spirited animal, kicked and dragged the said Macdonald along the road, thereby inflicting various wounds and contusions on his body, of which he instantly died.  It appeared that a warrant had been put into the hands of Slater and another of the mounted police for the apprehension of Macdonald, who resided about fifty miles from Bathurst, on a charge of cattle-stealing, and he was apprehended accordingly; the other man drove nine head of cattle, while Slater took charge of Macdonald; during some part of the way, Macdonald proceeded without giving any trouble, but, during the second days' journey, became refractory and would not proceed, stating that he was as free as the Governor of the Colony, was apprehended on a false charge, and had no right to be in custody at all.  Slater and his companion remonstrated with him on the inconsistency of disputing the matter with them, who were only acquitting themselves of a duty they could not avoid, entreating him to proceed in an orderly manner, which after some persuation he complied with; but frequently acted in the same way along the road, saying he was fatigued and could not proceed; some times he would become clamorous for water, although he was aware there was none to be had, without going several miles out of the road; in their way they called at the house of a Mr. Hayes, of Eastern Creek, who has a station in the vicinity of Bathurst, who deposed that the conduct of the prisoner Macdonald was most refractory; he abused the policemen who had charge of him in a manner not proper to express, during which they exercised the most praiseworthy forbearance and endeavoured to humour him; he would have some spirits which they were unwilling to let him have dreading its consequences, but as he begged hard to be allowed to take a glass and promised to go along quietly, in consideration of their indulgence, he got a dram of spirits; but had scarce swallowed it when he recommenced his abuse; in this way, according to evidence, did he act along the road, when at length they arrived at Bathurst; Macdonald begged to be allowed to go to a friends house for a clean shirt in which he was indulged, first treating Slater to some rum at the house of a Mrs. Dillon; after furnishing himself with a clean shirt they proceeded to Kables public house, where more rum was called for; the man who had assisted in bringing him to Bathurst had gone on with the cattle to the place appointed for them; Sergeant Edwards seeing Slater at the door of the public house and knowing he was on duty, told him he had no business there and ordered him to be off and mind his duty; Slater said he could not go without his prisoner who was not yet ready to start; when Edwards asked who he was, he was pointed out in the tap room; Sergeant Edwards went to him to order him off with Slater and found him with a glass of run in his hand which he offered the Sergeant to drink; but the Sergeant immediately threw it on the ground and seeing a tumbler on the table containing rum he threw that out also; Macdonald being vexed at seeing his rum spilled, said if he was then as he had formerly been he would give him a hit in the eye; some scuffle then took place and the tumbler was broke; the Sergeant ordered him to go along, but as he refused to do so, he went for a pair of handcuffs saying he would let him see whether he could not be made; he at first secured his hands cross ways when Macdonald said he had now done his worst and he should have ten minutes fun to himself, on saying which he lay down on the ground and would not rise; Sergeant Edwards raised him up and taking the handcuffs from both wrists secured his right hand to the left stirrup of the horse on which Slater sat, and he (Slater) was ordered to proceed leisurely towards the goal, which was at the distance of a mile from Bathurst; Macdonald said he would make him go along for he would kick him in the belly; a Sergeant Evans who was standing by said he had better not or the horse would kick his brains out.  One witness gave a different version of this; according to his testimony, the Sergeant said if the B--r does not go along quietly make the horse kick his b--y brains out.  The horse proceeded about ten rods when he gave a sudden plunge and threw Slater from his saddle; the man Macdonald was thrown down and the horse kiched him several times, dragging him along the road, until at length the saddle came off.  Several persons who saw the occurrence ran to the assistance of the unfortunate man but he was then insensible, in which state he remained about ten minutes, when he died.  The body being examined by Dr. Busby was found to be much contused in various parts particularly the head, and the neck was dislocated; on opening the head a considerable quantity of extravasated blood was found on the brain; either of these injuries were sufficient to cause almost immediate death.  One witness stated that Slater was quite drunk and had spurred the horse; whilst others stated he was perfectly sober, and attributed the death of the deceased to mere accident, Slater's heel being drawn into contact with the horse by the deceased in following.  His Honor in putting the case to the Jury, animadverted in strong terms on the dangerous practice which it appeared was adopted by the mounted police in escorting prisoners from place to place; a practice from which such results as the one then before them might readily be anticipated.  In the present case that practice was less called for than the generality of cases which for the better security of prisoners suggested themselves, as the gaol was found to be not more than a mile distant, an available force was at hand for the escort of prisoners, without resorting to so dangerous an alternative.  There appeared, however to be no malicious intention on the part of the prisoners, the occurrence being accidental, which might be presumed from the fact of the prisoner Slater's having been thrown by the sudden plunging of the horse, which proved it was not foreseen.  His Honor summed up most elaborately pointing out for the consideration of the Jury the parts of the evidence, if credited, which involved the liability of the prisoners to a charge of manslaughter.  The Jury returned a verdict of Not Guilty.  Before quitting the Court his Honor again admonished them against adopting so dangerous a mode of escorting prisoners in future.[ 2]

 

Notes

[ 1] See also R. v. Hagan, 1835.

[ 2] According to the Australian, 17 February 1835 ``The Chief Justice observed the impropriety of handcuffing to the stirrup, and directed that that practice should be disused.  We have since been informed that orders have been given to that effect by the commander of the mounted police, Captain Williams."  See also Sydney Gazette, 14 February 1835.

Published by the Division of Law, Macquarie University