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

R. v. Palmer [1838] NSWSupC 52

New Zealand - Supreme Court, jurisdiction in New Zealand - manslaughter - convict evidence - felony attaint

Supreme Court of New South Wales

Burton J., 16 May 1838

Source: Sydney Herald, 17 May, 1838[ 1]

Wednesday. - Before Mr. Justice Burton and a Civil Jury.

Edwin Palmer, late of New Zealand and Sydney, a subject of our Lord the late King, and our Lady the Queen, was indicted for killing Charles Dennahan, at Preservation Bay, New Zealand, within the jurisdiction of this Honorable Court, by beating him with a rope, on the 14th day of June, so that he languished until the 4th day of July, when he died.

The prisoner in this case was formerly superintendent of a whaling establishment at New Zealand, belonging to himself and Mr. James.  In the month of January last, he arrived in Sydney with some of the men belonging to the station; when he had been here about three weeks, some of the men accused him of killing a boy named Charles Dennahan.  Four of them gave evidence at the Police Office, and the tenor of their statements was, that in June, 1837, Dennahan and a New Zealand boy were left in charge of a boat, to keep her outside the surf, which they did not do, and the boat was injured, and for this, the prisoner beat Dennahan so severely that he died about a month afterwards.  On this evidence Palmer was committed to take his trial, but admitted to ball.

Last session, Palmer was arraigned for manslaughter, and, on his application, the trial was postponed to this session, in order to enable him to procure the attendance of witnesses who were at New Zealand.

In opening the case, the Attorney-General stated that he should be able to prove that two of the most material witnesses had been kept out of the way by Palmer, in which case he should give in evidence, the depositions they had sworn to before the Magistrates.

The first witness called was a carpenter named Davison, who swore that about the middle of June, he was laying a bed one evening about seven or eight o'clock, when he heard Dennahan crying out "don't beat me Mr. Palmer, and I'll work for a year to pay for the boat;" he heard a great noise as if the boy was jumping over the tables and stools, and heard the sound of a rope, sometimes as if it struck the boy and sometimes as if it hit the wall; Howard and Lyons were in the hut with Palmer; the next morning he saw the boy walking to the boat almost double, and when he (witness) went for his eleven o'clock grog, Palmer showed him a two and a half inch rope strop, which he said he had beaten that scoundrel with, and with which he would beat him every day until he either killed him or cured him; when the boy returned that night, he was taken ill, and continued so for nearly a month, when he died; before he died he smelt dreadfully offensive; Davison also stated that two or three days after Palmer returned from New Zealand, he called on him at his lodgings in Sussex-street, and after a few remarks, to him that while he had been at New Zealand, Mr. Jones had got two of the witnesses (Howard and Lyons) away, and that he would pay his (Davison's) expenses if he would go too; this offer he made several times, and finding that it had no effect, he told him that he did not care a d--n for him, and had got witnesses that would fix him.  He also stated, that in a conversation which he had with Palmer, shortly before the boy's death, he mentioned to him that if the boy died, he (Palmer) would be blamed, to which Palmer replied that there was no danger of the boy dying, and that the flogging he had given him could not have hurt him; besides which, he did not care a d--n, for there was no law in New Zealand.  In cross-examination, Davison positively denied that he ever said either to Mr. Jones or any body else, that for a little money he would keep out of the way.

Thomas Ashwell, cooper of the establishment, was in the hut with Davison, and heard the noise on the night alluded to, but could not recollect a word that was said, but the next morning Palmer told him that he had given the boy a rope's ending for losing the boat. Four or five days after this the boy who was always sickly, was taken ill and confined to his bed; he complained of a gnawing at his stomach and his breath smelt horribly offensive; so much so that the men could not stop in the hut; worms used to come from his nose and mouth six inches long and the size of a quill; he (witness) gave him eggs to eat, and Mr. Palmer used to give him wine and a fowl, soup, and medicine.  In about six weeks he died, and he was quite confident that he never heard him complain of the beating; the man that washed him after he was dead told him that there were no marks of violence.

Mr. John Jones, formerly the prisoner's partner, denied that he had any hand in getting Howard out of the way.  When Howard came up from New Zealand there was a balance of £137s. due to him, which he would not take because Mr. Jones would not pay him for sixty days grog at nine pence per day, which he alleged was due to him.  On the 26th March he called, in company with a lodging-house keeper, named O'Grady, for his money, and as the witness had only £3 7s. in cash in the house, he gave him a note for £10 payable three days after the sailing of the whaling ship Pilot, by which he understood that Howard was going to sail.  He was aware that Howard was a witness against Palmer, but it never occurred to him that he was acting improperly.  The witness assigned as a reason for giving the note, that in consequence of having purchased the whaler Caroline, he had been drawing heavily on his banker, and did not know whether he had any cash in the bank.  Mr. Jones also stated that at the commencement of the sessions Davison told him that if Mr. Palmer would give him a little money he would keep out of the way.

A lodging-house keeper, named O'Grady, corroborated Mr. Jones's evidence, and stated that Davison when having dinner at his house one day, stated that if Palmer would give him a little money he would keep out of the way.

The Attorney-General said, that on this evidence he was unable to give the depositions of Howard and Percy in evidence, and must close his case.

Mr. a'Becket submitted there was not sufficient evidence of the cause of death to send the case to the Jury, but His Honor refused to withdraw it from the Jury.

The prisoner's defence was that the charge was made in malice.

His Honor in summing up, commented on the suspicious circumstances under which Howard left the colony, whose evidence was as necessary to clear the prisoner's character, as it was for public justice.

The Jury retired for about half an hour, and returned a verdict of Not Guilty.

Mr. a'Becket, who, with Mr. Foster, were retained for the prisoner, applied to his Honor to commit Davison for perjury, as he had been contradicted both by Jones and O'Grady, but his Honor said he had formed his own opinion, and declined to commit him.

 

Notes

[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 36, State Records of New South Wales, 2/2436, p. 39.  See also Australian, 22 May 1838; Sydney Gazette, 22 May 1838.  Both of these newspapers reported that Mr Forster for the defendant objected to the evidence of Davison being admitted, on the ground that he was convict attaint.  The Australian gave the best account of this:

When a witness (Davidson) was called, Mr Forster, with whom were Mr A'Becket, and Mr G.R. Nichols, for the defence, took an objection to his eligibility as a witness, he having been convicted of felony in the Colony, and transported to a penal settlement.  The learned Judge, in over-ruling the objection, observed that this question had already been argued, and it had been solemnly decided upon by the court that he was an admissible witness, whose testimony of course would go for what it was worth, but still he was a competent witness.  His Honor observed that by the rules of court, he had been placed in a singular situation for a length of time by that decision, which the court was bound to abide by.  When the point was argued, two of the learned Judges (Mr Stephen and the present Chief Justice) were opposed in opinion to Mr Forbes, with whose opinion then expressed, he (Mr Burton) perfectly agreed.  There was this anomaly therefore in the Supreme Court for some time.  Two of the judges opposed in opinion to an established precedent, and to the third Judge.  The precedent, however, was established, and he (Mr Burton) was bound to acknowledge it.  It would be competent for the defence to get the fact of his conviction from the witness, if that in any way affected his testimony.

The reference was to R. v. Farrell, 1831; and see R. v. McCabe, 1833; R. v. Gardener, 1829.

For another published account of this trial, see the New Zealand Electronic Text Centre site. Thanks to Shaunnagh Dorset for finding this.

Published by the Division of Law, Macquarie University