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

R. v. Gillies [1837] NSWSupC 4

murder - Yass - bribery - police, appointment of - liquor laws

Supreme Court of New South Wales

Dowling A.C.J., 13 February 1837

Source: Australian, 17 February 1837[1 ]

Monday, February 13. - (Before His Honor the Acting Chief Justice and a Civil Jury.)

Andrew Gillies stood indicted for the wilful murder of John Kelly, at Yass, on the 20th day of April, 1835.

James Dannagher deposed - I was Chief Constable at Yass in 1835; I recollect John Kelly; he had been in the employ of Gillies (who travelled about the country, selling rum, sugar, tea, &c.) and came to the Yass Bench to give information of his (Gillies) retailing spirits without a license; an information having been filed, Kelly was sworn in as constable, and received arms to go with me to seize the prisoner's teams and the spirits; we went to Russel's, about forty miles from Yass, where we found a cask, a small keg, a tarpaulin, and the teams, in charge of a man named Hoy; seized the casks and teams and took them to the Bench at Yass; a man named Aikin was with us driving a team; I gave Kelly orders to go and serve the summonses on the people whom he mentioned as having purchased spirits of Gillies; he went away, and I never saw him afterwards; he wore high-low shoes, a black hat, brown jacket, and nankeen trousers; he was about five feet four inches in height, of a sandy fresh complexion, about thirty-five years of age; there were a good many people at Russell's, but it was not a public-house; after parting from Kelly, I proceeded towards Yass with the two carts and horses, and the driver; Kelly should have been back on the Tuesday-week following, to have given evidence against the prisoner; when the day came, Kelly was still absent, and the Court adjourned; the prisoner attended, as did Hoy; the effects were held in custody for some time, but Kelly not appearing, they were ordered to be delivered to the prisoner; I was not chief constable when Hoy turned approver; I was never sent to where the grave was found, nor have I since seen any clothes of the deceased; it was suspected that Hoy was interested in the sale of spirits by Gillies, but there was no information against him.

By a Juror - One of the persons for whom Kelly had a summons, named Flinn, appeared at the Court.

Edward Burke Roach, sworn - I am chief constable at Yass; I remember receiving a warrant from Mr. O'Brien, I think in September or October last, to attend Hoy in the apprehension of Gillies, for the murder of John Kelly; I proceeded to the station of prisoner at Coiah Creek, where I apprehended him; I read the warrant to him; Hoy was outside the door; prisoner did not appear at all agitated, but said ``very well;" I proceeded to the spot where the body was said by Hoy to have been buried; Hoy pointed out the place, and assisted in raising the body; his recollection of the place was not perfectly accurate; the body was lying alongside of a log of wood; he found a shoe and dug up the feet first; when I told the man to dig at the other end he did so and found the skull, which I put in a bag and brought away, leaving the rest of the body; the remains were three feet below the surface; it was about three feet from a running stream of water which, at times, is very wide, extending over the spot on which the body was found, with very deep water-holes; there were some stones on the body which appeared to have been accidentally placed there; I went to the spot again last Friday, and examined the remains, the bones of which were kicked about; I could only find one shoe, or a lace-boot, a piece of brown cloth, apparently a sleeve of a jacket, a button, and three-and-sixpence in money; there is no place for crossing the water near there; it is a clear stream of running water, the chain of holes or ponds are very deep, and in fact, in winter, form a wide river.

Cross-examined by Mr. Foster - I did not hear that Gillies was about to give information against Hoy for cattle-stealing.

John Hoy, deposed - It will be two years ago in March since I left Mr. Roberts' employ as stockman, and went to Phil. Ward's, at Cunningham's Creek, where I found Gillies' teams - two horses and two carts, and a man and a boy; in the cart were quantities of rum, tea and sugar; prisoner was away looking for cattle, but a day or two afterwards I saw him, and was drinking with him at Ward's; Gillies had two casks in a cart nearly full of rum; prisoner left Ward's and went to Harris's; I went after him on the following day, and saw him selling rum; Kelly was not at Phil. Ward's, but he came up while we (prisoner and I) were at Harris's, which was the first time I saw him; Gillies asked what made him stop so long away - words ensued - and Gillies paid him his wages and sent him away; the teams were then sent to a water-hole ten miles from Harris's, and when we had been there for a few days, word came by a man named Dacey; that a constable was coming from Yass to seize the rum, in consequence of information given by Kelly; the rum was then hid in the bush, about a miles from the water-hole; Gillies swore that if he met Kelly he would shoot him; a constable and Kelly came and seized the teams and property belonging to Gillies, and took them to Yass, next morning the prisoner and I started for Yass, where we learned that Kelly had gone to the Murrumbidgee to serve summonses on those persons who had purchased rum of Gillies; the following day, the trial came on, but Kelly was not to be found; Billies said he would go and endeavour to find Kelly to make it up with him, as if the case was tried, Mr. O'Brien would not only fine him, but seize upon all he had, which would ruin him; we started to go to Bogolong, to a Mr. Connor's, and met Kelly, armed with a musket; when he came up he stood aside from Gillies, who got off his horse, and threw himself on his knees and said to Kelly, he hoped he would not ruin him - that he would sooner give him the amount of money in which he should be fined than give it to Mr. O'Brien, as in the latter case every thing he had would be seized, Kelly said, "If I make it up what will I do with Mr. O''rien'' musket?" The prisoner said, "he musket is easily planted in the bush, and if you consent not to go to Yass, I will give you 30l;"  Kelly consented and Gillies paid him 30l. in notes; we started on there, and when we came to the Creek, Kelly and the prisoner went down to drink, while I held the horses; Gillies first drank; then Kelly went, leaving his musket on the bank; when he (Kelly) stopped to drink, I saw Gillies pick up a stone of about two or three pounds weight, and threw it sideways at Kelly; I know it struck Kelly, because he immediately fell on his mouth; Gillies then rushed down and seizing him by the collar, struck him several blows towards the back of the head with a stone which would weigh perhaps seven or eight pounds; I let go the horses and rushed towards him, crying out, ``In the name of God, what the devil are you doing?"  he told me if I did not stand back, he would shoot me; I ran back and about to ride away when he called out, ``Jack, Jack, for God's sake, come back;"  I said, ``I dare not while you have that piece;" he then took out the flint and endeavoured to draw the charge, but could not, when he threw the musket into the water-hole; Kelly was then lying dead on the bank; when I went to him, he said, ``Jack, my life is in your hand; he's done - he'll never put any more money in the pocket of government;" he then took the 30l. out of the pocket of the deceased; he took the handkerchief off his neck, and that of the deceased and tied his legs and arms, and fastened a stone to the body, and rolled it into the water-hole; I gave no information of the murder until about a year after the occurrence; I thought if I did that it would be endangering my own security in that part of the country.

James Connor, sworn. - In the month of April, 1835, the prisoner called on me to request that I would not appear to a summons which he said was issued for my appearance to give evidence respecting having purchased some rum of him; he told me he would give the informer 30l. if he would settle it.

In his defence the prisoner strongly protested his innocence of the charge, and stated that the approver Hoy was himself the murderer of the man Kelly.

After His Honor had summed up, which duty was performed in a luminous manner, the Jury retired for a few minutes, and on their return, pronounced a verdict of Guilty.

The prisoner was then sentenced to be executed on Wednesday morning, at the usual place.

 

 

Notes

[1 ] See also Sydney Gazette,  16 February 1837, noting that the prisoner's body was to be dissected after execution.  See also Dowling, Proceedings of the Supreme Court, Vol. 132, State Records of New South Wales, 2/3316, p. 54.

Published by the Division of Law, Macquarie University