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

R. v. Kays and Freeman [1838] NSWSupC 7

Port Macquarie - convicts, iron gang - murder - confession

Supreme Court of New South Wales

Willis J., 19 February 1838

Source: Sydney Herald, 22 February, 1838

Monday, Feb. 19 - Before Mr. Justice Willis and a Civil Jury.

Thomas Kays was indicted for cutting and maiming Thomas Asker with a knife, at Port Macquarie, on the 19th October, with intent to kill and murder him.

The prisoner and prosecutor both belonged to the Port Macquarie ironed gang, and on the day laid in the information, the prisoner, without any provocation, struck the prosecutor twice with a knife, once in the neck and once in the side, saying. "take that, you --; I'll settle you."  The prosecutor had on a former occasion quarrelled with the prisoner and challenged him to fight, in consequence of the prisoner having insulted him because he had been a military officer, but they had had no words that day.  The prisoner merely observed in his defence, that from the manner in which he was treated in the gang, he would as leave be hanged as not.  Guilty - Remanded.

James Freeman was indicted for the wilful murder of Roger Kenny, at Port Macquarie, on the 16th September, by throwing him into the river Hastings, where he was drowned.

In the month of June, an old man named Roger Kenny, who resided at the Settlement Farm, Port Macquarie, was found drowned in the river.  There was a very small contusion under the left ear, but nothing to excite suspicion.  About three months afterwards, the prisoner, who was at the farm at the time, went to a constable named Bailey, and gave himself up, saying that he made away with Kenny.  He said he had been cutting wood with him in the bush, and they had a quarrel, when he struck Kenny under the ear and knocked him into the river, where he was drowned.  About four hours afterwards he saw the body still floating, and the cap worn by the deceased floated to the bank where it then was.  Bailey went with him to the place and found the cap in a hole in the bank, and the next day Freeman made the same statement before Mr. Gray, the Police Magistrate, and committed to take his trial.  The dispenser of the Port Macquarie hospital stated that he saw the body after it was found, and that in his opinion the contusion under the ear was caused by a blow from the fist or a stick, but the immediate cause of death was drowning.  The cap given by Freeman to Bailey was positively sworn to as having belonged to Kenny.  The prisoner, in his defence, entered into a long statement of alleged mistreatment, and said that he made the statement for the purpose of getting away from the settlement.  His Honor put it to the jury to say, whether they believed the prisoner had made the statement from the reason he had stated, or whether it was a true statement.  The jury retired for about half an hour and returned a verdict of Not Guilty.


Published by the Division of Law, Macquarie University