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

R. v. McGee [1839] NSWSupC 25

murder - domestic violence - children, evidence of

Supreme Court of New South Wales

Willis J., 2 May 1839

Source: Australian, 4 May 1839[1] 

THURSDAY. -- Before His Honor Mr Justice Willis, and a Civil Jury.

John McGee was indicted for the wilful murder of his wife, Catherine McGee, by beating her with a spade, inflicting wounds whereof she lingered, and died on the 18th March last, at Penrith.

The principal witness in this case was a labouring man named Thomas Gill, a servant to Mr Green of Bingelly, but living in the prisoner's house at the time of the alleged murder. On St. Patrick's day, a man named Bolton and his wife were at the prisoner's house, and they were all drinking together, but they left the house in the afternoon, and the prisoner also left the house. The deceased, her family, and the witness Gill retired to their beds at the usual hour, and about twelve o'clock at night the prisoner returned home, and went to his bed, but not finding the deceased, who was sleeping with the children, he woke Gill and asked where she was? Gill told him with the children, and he went over, roused her up, and bade her get his supper. Deceased got up, and the prisoner followed, knocked her down with his fist, and desired Gill, who had got up and dressed himself, to get a light. When the light was procured, the deceased went over and sat down upon a sofa that was in the room, when the prisoner, making use of some very indecent language, seized a spade from one corner of the hut and struck her on the shoulder with it -- adding that ``he would then pay her out for all." Gill then interfered and prayed the prisoner to be merciful, when the latter aimed a blow at him with the spade, saying that he would knock his brains out if he interfered. At this time the children were crying much, and a little girl who was under the table, cried out, ``Daddy, daddy, don't kill mammy." The prisoner turned to his child and used the most revolting expressions, asking her ``if she was there to criminate him." By this time Gill had got outside the hut, and hid himself near a straw stack where he heard very heavy blows repeated several times, and during the blows the deceased cried out, ``Oh! Harry dear -- deary, Harry." Gill had taken the infant with him, and he went to a fire which had been made in an old tree, where the infant fell asleep in his arms, and hearing nothing more, he went over to the hut, where he saw the prisoner sitting at the table eating some beef, and drinking tea. Prisoner asked Gill where the infant was, and being told, the deceased called to Gill to give her a drink of water, of which she drank heartily. Shortly after, a man named Murphy went to the hut, and complained of the tooth ache, and at this time the deceased was lying on the floor with her head resting on a piece of wood which went across the fire-place, and Murphy asked the prisoner why he allowed his wife to lay there? Gill then asked Murphy to help him, and they lifted the deceased, who was incapable of helping herself, on the bed, and then the prisoner got a pair of pincers, and extracted Murphy's tooth of which he had complained, after which Murphy said he would go away, and the prisoner went to bed, where Gill heard him use further indecent expressions, shaking her, and shortly thereafter the prisoner cried out, ``Murphy, Kitty is dead." Some conversation then ensued, a light was procured, and the woman was found to be dead. The prisoner and Murphy then went to report the death, leaving Gill to take care of the children; Gill afterwards went to a constable named Riley, and reported the murder, and Riley and a man named Kenyon went up to the hut; Gill looked about for the spade, but could not find it.

McGee had four children, and at the first commencement of the affray there was no one in the house but the prisoner, Gill, and the four children. The prisoner underwent a long and very strict cross-examination by Mr Windeyer, who was retained for the prisoner, the intent of which was to shew that a criminal intercourse had existed between the witness and the deceased which was the primary, and indeed the sole cause of the assault committed by the prisoner on the deceased, as well as the attempted assault by the prisoner on witness, which was the result of his jealousy being excited by what he heard before entering the hut.

Edward Samuels district constable, deposed to having proceeded to the prisoner's hut, and finding a female's cap and other things, with blood on them, secreted behind some bags of wheat, also a spade with blood on it, which was hid in a heap of dung at the back of the hut; the prisoner denied all knowledge of the murder, and he and Gill were taken into custody. On the following day, he found a man's shirt, with blood on it, and a woman's apron saturated with blood, hid amongst some rags in the bedroom.

Ellen McGee, a girl, between seven and eight years of age, was called, and it appeared that she had never been to school, could not read, never said her prayers, and did not know what telling a lie was. On these grounds, her evidence was not taken.

Mr Surgeon Clark, of Penrith, deposed that he attended the inquest held on the body of Ellen McGee, the deceased, and on examining the body, he found that the left arm had been broken, and there were many bruises about the body, a cut on the right side of the head, and another on the left side by the ear; on opening the scull, he found that the scull had been fractured by one of the blows on the head, and a large blood vessel had been ruptured, and had discharged itself on the brain, from the effect of which the deceased died. The blows were probably given by an instrument like a spade.

This was the case for the prosecution, and Mr Windeyer desired that Gill's evidence taken at the Coroner's inquest might be read by the Clerk of the Court, which was done, but no material discrepancy occurred between that and his evidence on the trial, which could warrant a doubt of the correctness of Gill's evidence.

The prisoner offered nothing in his defence, and declined calling witnesses. His Honor, preparatory to summing up, addressed the Jury as follows:--

On first meeting you, gentlemen of the civil jury, on whom, in a great measure, the discharge of the criminal business of the colony depends, it has hitherto been my practice, at the commencement of the session (previously to adverting to the case more immediately before us), to say a few words on that glory of the English law, the inestimable advantage of trial by jury -- a mode of trial infinitely superior to that prescribed by the civil law, which has regulated the course of those Courts in which I have chiefly practised and presided during a laborious professional life. I have thus alluded to trial by jury, and am now once more about to do so, because, I am persuaded, that if this great constitutional blessing were thoroughly understood, and duly appreciated by those whose names occupy the list of jurymen, instead of any individual disobeying or endeavouring to evade the call for his attendance, there is no one who would not (laying aside all other considerations) cheerfully come forward, and feel himself honored in being selected to participate in the discharge of this all important duty.

I agree with a great legal and constitutional author, familiar to most of us, ``that it is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals -- a constitution which, under Providence, has secured the just liberties of the English nation for a long succession of ages." I doubt not, however, that, as in Sweden, where the trial by jury, that bulwark of northern liberty, long continued in full vigour, and afterwards fell into disuse, thereby extinguishing the liberty of the commons; so, if in this, or any other community, that mode of trial be neglected by those who duty it is to come forward to its support -- and in consequence, if such right be abolished -- the liberties of the people will be lost for ever. This, I say, with confidence: for I venture to affirm, that the impartial administration of just -- the only safeguard of life, of liberty, and of property, the great end of civil society mainly depends on ``trial by jury". If the administration of justice were entirely entrusted to the magistracy, a select body of men chosen by government, their decisions, in spite of their own natural integrity, might frequently have an involuntary bias towards those of their own class; for it has been well observed, that it is not to be expected that the "few should always be attentive to the good of the many." On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our Courts. It is wisely, therefore, ordered, that the principles and axioms of law, which are general propositions, flowing from abstracted reason, and not accommodated to times, or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come, properly ascertained, before them. For here partiality can have little scope -- the law is well known, and is the same for all ranks and degrees, it follows a regular conclusion, from the premises of fact pre-established. But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice have an ample field to range in, either by boldly asserting that to be proved, which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here, therefore, a component number or sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. The most powerful individual will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial -- and that, when on[c]e the fact is ascertained, the law must of course redress it. This it is that preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the most powerful and wealthy citizens. Let me beg, then, and entreat, that, you, gentlemen, who are by law to serve on juries in this colony will all now remember that a degree of trouble is the price which we pay for our common liberty -- and that our common liberty, for which no price would be dear, will then only fall when trial by jury shall be superseded; when colonists of education and property shall cease, through their love of ease, to shew by their personal exertions a warm alacrity for the support of it.

In what I have said, gentlemen, I claim not the merit of originality -- I merely repeat that which has been said and written by the wisest and greatest in their generations. I will not, however, allow my veneration for trial by jury to blind me to the fact that, as juries are composed of men, they must be liable to human infirmity. Great political or religious questions may not always be viewed by them with perfect impartiality; and they may not always manifest those qualities which it would be desirable they should never fail to display. Thus, for instance, it has been justly said that much harm has been done to the community by that overstrained scrupulousness or weak timidity of juries, which often demands such proof of a prisoner's guilt as the nature and secrecy of his crime scarce possibly will admit of, and which holds it part of a safe conscience not to condemn any man while the minutest possibility of his innocence exists. I do not mean that juries should indulge conjectures -- should magnify suspicions into proofs -- or even weigh probabilities to gold scales; but when the preponderance of evidence is so manifest as to be persuade every private understanding of the prisoner's guilt -- when it furnishes the degree of credibility on which men decide and act in all other doubts, and which experience has shewn they may decide and act upon with sufficient safety; to reject such proof from an insinuation of uncertainty that belongs to all human affairs, and from a general dread lest the charge of innocent blood should lay at their doors, is a conduct which, however natural to a mind studious of its own quiet, is authorised by no considerations of rectitude or utility. It counteracts the care, and damps the activity of Government -- it holds out public encouragement to villainy, by confessing the impossibility of bringing villains to justice.

Here, gentlemen, under ordinary circumstances, I should close any observations not immediately applicable to the question you have to try. But knowing, as I do, from having read the depositions in the several cases set down for this Sessions, that the calendar, though light in point of number, is yet more heavy in atrocity than I have hitherto known it (there being a very unusual number of accusations of murder, and other crimes of a most serious description). I must beg to be permitted to trespass a little longer on your patience. I can only attribute this sad state of things to the absence of that zealous, energetic, judicious, and persevering religious instructions, which alone, under providence, can controul the strong passions of the human race. ``So long as the fear of God," says Archdeacon, now Bishop Broughton, in his letter on transportation -- ``so long as that fear governed the general mind of the British nation, the dread of legal inflictions coming in as a secondary restraint in aid of that which was more prevalent and formidable, was quite sufficient to curb violence and dishonesty, and to enforce tolerable regard for life and property. But as soon as the barriers of the law are exposed, as (says the Right Reverend Author) is the case at present (that is, when the book I quote was written), to the whole rush and pressure of men's unruly appetites, those barriers will inevitably bend and give way; and the wave, if excluded at one point, will come pouring through with greater impetuosity at another." From this doctrine, I think no reasonable man will dissent. If the fear of God, more universally prevailed, few of those unhappy beings who now come before us would be moved by the instigation of the devil, to commit the numerous and dreadful crimes to which I have deemed it to be my duty to advert. Experience has evinced, and is evincing daily, that men of savage hearts, and savage deeds, may be generated from the off scourings of civilization, no less than amidst the barrenness of the desert. Nay, of the two extremes, the savages of civilization are perhaps the more dangerous; inasmuch as, with the same untamable dispositions, they combine greater knowledge, fiercer passions, ampler means, and above all, a larger field of mischief. The heart sickens at considering what evil can be done by a few hands, if the rich and brittle edifice of prosperity, which, by God's permission, has been reared in this Colony, were abandoned by him, even for a few short moments, merely to human laws and human vigilance, ``Except the Lord keep the City, the watchman waketh but in vain." For what, after all, can human laws avail against men who own no moral tie? The crafty elude -- the sanguine overlook -- the violent defy them; apart from the moral obligation; their own hold on man is through the medium of his bodily scars; and against these, the heart easily learns to harden itself, and will even take a sort of pride in braving them.

Since even laws, if considered as merely human ordinances, are so manifestly inadequate to the protection of the community, what remains to supply the deficiency but religion? It is that, and that alone, which can awaken and keep alive a sense of duty in a country -- which can bind the moral law upon the hearts of men -- which can set before their reason an Almighty Ruler, the ever present witness of all their actions, the hater of iniquity, the punisher of the wicked. It is religion, and that alone, which can fix the laws deeply, as with living roots, in the imagination and conscience of a people.

If, then, this Colony is to be preserved from crimes of such atrocity as stain the present calendar, and the people are to be kept within the pale of duty, it can only be done, in my humble opinion, by one method: the method which alone has hitherto elsewhere prevailed, and by God's blessings will here also prevail -- it can only be done by the instrumentality of religion.

Gentlemen, I will now proceed to the issue you have to try, from which I have too long, I fear, withheld your attention.

His Honor then summed up, recapitulating the evidence, and the Jury retired. On their return they delivered a verdict of guilty. Sentence of death was then passed on the prisoner.



[1]  See also Sydney Herald, 3 May 1839; Sydney Gazette, 4 May 1839.

Published by the Division of Law, Macquarie University