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

R. v. Maloney and Reid [1838] NSWSupC 51

murder -Hassans Walls - iron gang, conditions in - convict, prefers death to iron gang - convict discipline - contempt of court, delay by witness

Supreme Court of New South Wales

Willis J., 11 May 1838

Source: Sydney Gazette, 19 May 1838[ 1]

Daniel Maloney, was indicted for the wilful murder of Timothy Mahoney alias Thomas Mahon, by stricking him on the head with a pick-axe, at Hassan's Walls, on the 20th April.

John Davis - I am a prisoner of the Crown; I was at the Hassan's Walls ironed gang, where I remained nine months; the prisoner was there about two months; there was a person named John Mahoney there; there were sixteen of us at work getting stone for the road; the prisoner was about four yards from me, and came within a yard and a half of me; I saw Mahoney picking up a stone, and as he was rising, the prisoner Maloney drove a pick into his head; they had had no quarrel of any kind; I called to Scarrott who was very close to me to take him to the sentry; he was seized by me and another man the pick taken out of his hand; the man fell the instant he was stuck with the pick; he made two blows at him, both on the head; the man was lying on the ground when the prisoner struck him the second blow; we took him to the sentry; the prisoner said he was tired of his life from the usage he got, and was sorry he did not kill half a dozen; the prisoner was punished for neglect of work two or three days before; he received fifty lashes on the breech; the prisoner was not fit to work, his feet were all cut with the irons.

The prisoner declined asking questions.

By a Juror. - The prisoner was not drunk; he could get no liquor; he might be drunk from hunger; we do not get out rations properly, if we did we should have enough.

By the Attorney General. - Our proper ration is seven pounds of flour, three and a half pounds of maize, and seven pounds of meat a week; when the ration comes to us there is not four ounces of meat; there are a good many messengers and watchmen walking about, and the cook gives it to them; it goes through about twenty hands before we get it; the meat is given out daily by the serjeant, who hands it to the cook and delegate; the delegate is a prisoner who attends to see the meat properly served out; we take it in turns; there are two wardsmen to carry up the rations; there are fifteen or sixteen men out of irons who draw rations along with us; they get theirs cut off before ours is put into the boiler; the cook gives them the best of the meat, and when it is cut off there is little but bones left; we don't get our full complement of flour and maize; it is concealed by the cook and delegate; I was delegate once myself, I took none; I could tell by the difference in the rations that other delegates must have concealed it; I never saw anybody take it; Captain Cains ought to look after our rations.  (His Honor apologised to the jury for taking up their time in a matter not relevant to the issue, but the witness having made the charge publicly, these questions had been asked that it might be enquired into.)

Richard Scarrott. - I have been in the ironed gang at Hassan's Walls about two months, I knew Mahoney, I do not know his christian name; I saw the prisoner leaning over Mahoney after he was killed; I caught hold of the prisoner and pulled him away; I saw the pick in his hand a few minutes before but did not see it then; I brought the prisoner away and some of the men at the gang cried out murder; the prisoner never spoke, but on the road said it was not one he wanted but half a dozen; the wounded man was taken to the hospital.

William Young. - I belong to the ironed gang at Hassan's Walls; I saw the prisoner strike Mahoney with this pick; Mahoney was carrying stone; they had a few words a day or two before that; they had no words then; I was three or four yards from them; he struck him a second time when he was down, he was seized by Davis and Scarrott.

John Yeaden, private in the 80th Regt. - I recollect the day Mahoney was killed; I believe his name was John Mahoney; I was sentry over the gang and went to the rear; whilst I was there I heard the prisoners saying that Maloney had killed a man; I came up and saw the prisoner in charge of Davis and some others; I ordered the other sentry to take charge of the prisoner and take the gang home and I would stop with the deceased; as soon as the other sentry marched the gang away and the prisoner with him, I went to the deceased and lifted him up and he said ``Yeaden what's the matter;" I told him Maloney had struck him on the head with a pick, and he said ``Oh God why did he do that, I never spoke a word to him, I thought it was a tree had fallen on me;" the overseer came with some men and we tied up his wounds and took him to the stockade and afterwards to the hospital; I afterwards saw him dead.

The Court was now kept waiting upwards of an hour for Dr. Reid, who could not be found.

Captain Nathaniel Kains. - I recollect Mahoney being killed; his name in the warrant was Thomas Mahoney alias Timothy Maher; I saw him after he was wounded; he had a hole in his head as if made by a pick; the head was opened by Dr. Reid; there was a hole about the size of half a crown, and several pieces of skull which must have been broken off by a blunt instrument; the prisoner told me he was tired of his life, and seemed to try to appear out of his mind.

Cross-examined. - I asked the prisoner why he had done it; he said he was tired of his life; I told him he should be tried, or suffer by the laws of the country.

The prisoner said nothing of consequence in his defence, but called two men from the stockade who knew nothing of the circumstance, but said that the prisoner had undergone a deal of hardship in the ironed gang.

Before proceeding to charge the jury, when the Court had been kept waiting for Mr. Reid about two hours and a half, His Honor said Mr. R. had been guilty of such gross contempt that he was determined to punish him severely, and he therefore ordered that Assistant Surgeon John Reid, of H. M. 80th Regt. be fined £20, and be imprisoned in Sydney gaol for two months.

His Honor told the jury that if they believed the facts sworn to, there could be no doubt the offence amounted to murder.  The jury, without retiring, returned a verdict of guilty.  His Honor immediately passed sentence of death upon the prisoner.

 

Willis J., 12 May 1838

Source: Sydney Gazette, 19 May 1838

 

Mr. Assistant Surgeon Reid, appeared on the floor of the Court and tendered an affidavit of facts in explanation of his not appearing in Court the previous day.  The affidavit stated that Mr. R. arrived from the Interior in the morning, and immediately hastened to the Court, where the Crown Solicitor gave him a short leave of absence for the purpose of taking some refreshment, upon which he went to his lodgings where he was seized with a sickness and kind of stupor, occasioned by the fatigue of the journey, under the influence of which he fell asleep and did not wake until past six o'clock.  Mr. Reid, who appears to be upwards of sixty years of age, in answer to questions from His Honor, denied most positively that he had tasted either wine or spirits that morning.  His Honor said he was bound to believe the facts stated by Mr. Reid, and as it appeared that his remaining from Court was not the effects of any impropriety on his part, but was caused by an accident to which all persons are liable, he should direct the penalty he had ordered to be inflicted the previous day to be remitted, but had not Mr. Reid purged himself of the contempt it would have been enforced.  His Honor said he wished it to be distinctly understood, that the rank of a party guilty of contempt in disobeying the process of the Court will make no difference, except in the excess of punishment, for the higher in rank the party may be, who is guilty of contempt, the heavier shall be his punishment.  Mr. Reid then withdrew.

 

Notes

[ 1]See also Sydney Herald, 14 May 1838.

Published by the Division of Law, Macquarie University