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

R. v. Lawler [1841] NSWSupC 6

murder - prisoners' counsel, right to 

Supreme Court of New South Wales

Dowling C.J., 1 February 1841

Source: Sydney Herald, 2 February 1841[1]

            John Lawler, assigned to Mrs. Sutton, of Bathurst, was indicted for having, on the 22nd of June last, beat one Thomas McNab, a servant to Captain Piper, with a hurdle-fork, so as to cause death; and Zachariah Cooper was indicted for aiding and abetting, - they both pleaded not guilty. Lawler handed in a written petition to have counsel assigned to him. His Honor requested Mr. Callaghan, who was in court, to undertake the defence of Lawler. Mr. Callaghan informed his Honor that the charge was a very serious one, and as he knew nothing of the case, he respectfully begged leave to decline having anything to do with the case. The Attorney-General said he had no wish to prevent parties from getting legal assistance to conduct their defence; but he thought that the court, for its own dignity, ought to require the applications should be made before the parties were placed on their trial. His Honor informed the prisoner that he ought to have made his application sooner.

* * * *

            John Lawler and Cornelius Cooper, assigned servants to Mr. Sutton, ofBathurst, were then put on their trial.

            The Attorney-General, in opening the case, stated that he was sorry that the present case was one which, like most of the other cases of crime which came before that court, originated in rum. Those gentlemen who would attend to the proceedings of the present session would perceive, when the calendar was gone through, that more than half the cases for trial owed their origin to rum, the principal vice of the colony. He was aware that some of the gentlemen of the jury earned their subsistence by dealing in spirits, which he was sorry to say, was a legalized trade, for which they paid a heavy license; but when such were the effects produced by it, he could not help being sorry that any person could be found willing to embark in such a dreadful trade. The present case was not one in which any publican was concerned; but still that did not alter the evil, as the crime was the same whether the liquor was drunk in a hut or in a public house; and he trusted that the gentlemen at present embarked in the trade would seriously consider the immense mass of crime which originated in the vending of ardent spirits, which appeared to be nothing less than a curse on the colony. He then called a number of witnesses, who proved that, on the day laid in the indictment, the prisoners went to Captain Piper's station, with half a gallon of rum, and were met there by another man named Lachlan Byrne, who had obtained his liberty twelve daysbefore : he also had a bottle of rum; they then commenced drinking till the whole party became intoxicated, and lay down to sleep. Part of the rum was at this time stolen. When they awoke, Lawler charged the deceased with taking it, and commenced beating him; they were parted, after which Lawler again attacked him, and threw a quantity of burning embers on him, which burned his foot; it was also proved that he had struck him with a hurdle fork, and when the deceased tried to leave the farm to complain to Captain Piper, one of the witnesses, Wm. McWilliams, prevented him, stating that he should not get any one into trouble.  The prisoner Cooper was also proved to have taken rum to the station. The deceased died about fourteen days after in the hospital, of an unusual haemorrage of blood in the lower intestines. Mr. Busby, the surgeon of the Bathurst hospital, stated, that he examined the body of the deceased, and was of opinion that death had been caused by the rupture of some of the larger blood-vessels, but from the time which had intervened, he was not able to say whether the rupture had been caused by external injury or not; at the same time, had he not heard of the assault, he should have ascribed death to natural causes. In putting the case to the jury, his Honor stated that the only evidence against Cooper was his taking the rum to the station, in company with the other prisoner Lawler, which was a highly culpable act. As to the case against Lawler, the jury was to decide on the evidence of the assaults, as given by those who witnessed them, and that of the medical gentleman who had made the post mortem examination of the body of the deceased, and instructed them, if they had any doubt, to give the prisoners the benefit of it. The jury retired ten minutes and returned a verdict of "not guilty," against each of the prisoners, who were discharged. Previous to their being removed from the dock, His Honor admonished them as to their future conduct, and stated that had they been found guilty they would certainly have been executed, as the Court was determined to make a fearful example of the first case of crime originating in rum, which appeared to be the principal source from which all crime flowed.

Notes

[1]              See also Sydney Gazette, 4 February 1841; Australian, 2 February 1841.

Published by the Division of Law, Macquarie University