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

R. v. Neale [1842] NSWSupC 38

murder, of policeman - death recorded

Supreme Court of New South Wales

Burton J., 11 January 1842

Source: Sydney Herald, 12 January 1842 [1]

For Murder

            Patrick Neale was placed at the bar to take his trial for the murder of John Connell, a policeman, on the 23rd of November last.

Mr. Purefoy appeared for the defence.

The Attorney-General, for the Crown, stated that the circumstances under which the heinous crime of the prisoner had been committed were as follow; that on the day laid in the indictment, the prisoner had been engaged in a trifling quarrel with some other party, when the deceased, a constable in the Sydney Police, interfered for the purpose of terminating the disturbance which this quarrel occasioned. The prisoner was taken into custody, and as he was being escorted to prison, the prisoner promised that if the constable would allow him (the prisoner) to walk freely to the gaol he would not attempt to escape. Contrary, however, to his promise, when the constable complied with the prisoner's request, he attempted to escape, and the constable then very properly pursued, and attempted to take him into custody. The prisoner then struck the unfortunate deceased a violent blow, which stretched him on the earth, and whilst in this situation snatched his staff from his hand, with which he, the prisoner, inflicted a blow upon the head of the constable, which very shortly after was followed by his death. The deceased was thus cut off from his family whilst in the exercise of his duty, a duty humble perhaps in itself, but most important to society; and the prisoner was that day before the Jury to take his trial for the crime. He, the Attorney General, had thus stated briefly and fairly the circumstances of this melancholy case, and he would now proceed to prove it by the witnesses.

George Galloply examined by the Attorney General: Knew the prisoner at the bar; saw him on the day in question in Mr. Cunningham's public-house, in Campbell-street; witness had been challenged to fight by the prisoner, and then left the house; the prisoner followed witness out and struck him on the nose, which bled very much. The deceased, seeing witness struck, came up and took the prisoner into custody; the prisoner said, if the constable would let him go, he would walk quietly to prison; when the constable complied with his request, the prisoner tried to escape.

Cross-examined by Mr. Purefoy : Witness offered the prisoner no provocation; would not swear he saw the prisoner at the time, he, witness, was struck; he witness had had some drink, but was not drunk.

John Wright examined by the Attorney General : Remembered the 23rd of November last; I saw the deceased on that day in Campbell-street; witness was standing in his verandah on that day between three and four o'clock, when he saw the constable pursuing the prisoner. The prisoner stopped, and laying hold of a stone, threatened to throw at the constable if he approached nearer. The constable laid hold of the prisoner, who several times threatened to strike the constable if he did not let him go; the prisoner struck the constable several times, and in a scuffling manner they went a little distance along the street, until at length the constable let go, apparently compelled to do so by the prisoner's blows. The prisoner then struck deceased on the forehead, which knocked him down; and when down, prisoner forcibly pulled the staff out of the constable's hands, and struck him a blow on the head with it, which he (witness) heard where he stood, a distance of about thirty yards from the parties. The prisoner then ran away, and threw the staff against the Market-place; the deceased then rose up and wiped his face, and being about to fall, some of the by-standers laid him down in the Market-place. The deceased was afterwards brought over to witness's verandah, and was then insensible. Dr. Grant was sent for, who refused to come, saying he never went out on occasions of that sort.

Cross-examined by Mr. Purefoy : Had not seen the constable lay hold of a stone; there was a short struggle between the prisoner and deceased; there were a great number of people looking on; there might be forty or fifty; none of them were very near deceased and prisoner at the beginning of the disturbance; did not hear the prisoner say, "If you will take your hands off, I will go quietly;" he might have said so. Witness would swear that the blow was not an accidental one; had known the prisoner about five years; thinks the prisoner might have been at witness's house on the day of the disturbance; could not say that Galloply was there on the same day; had never known prisoner to be any other than a peaceable man; had not seen deceased strike the prisoner.

Timothy Dale examined by the Attorney General: Recollected the 23rd November last; had seen the constable and the prisoner at the Haymarket on that day; saw the prisoner strike deceased a back-handed blow with the staff, but could not say on what part of the deceased the blow fell.

Cross-examined by Mr. Purefoy: Saw the prisoner offer the blow, but whether it reached the deceased or not, he could not say.

Joseph Ward, examined by the Attorney General : Was a constable in the Sydney Police; saw on the day in question a great number of persons assembled in George-street, and the constables running, and witness ran too; saw the deceased after he received the blow, who then appeared to be insensible. Witness apprehended the prisoner at his lodgings in Castlereagh-street, about half an hour after the occurrence. Had been often in prisoner's company, and knew no harm of him; had heard he was once charged with killing a man.

John Leathlean, examined: Had known the deceased, who had been in witness's service. Saw deceased die at the hospital, witness had gone there to see him, out of respect for an old servant.

Mr. Surgeon Harnett, examined by the Attorney General : Was surgeon to the Sydney Hospital . Recollected the deceased being brought to the Hospital, who was then labouring under compression of the brain. Deceased died the same evening, about seven o'clock. There was a post mortem examination, there was extravasation of blood on the right side, and also at the base of the brain. There was a fracture on the right side of the scull, a little before the ear. The fracture must have been effected by the blow, and the extravasation might have resulted from the cause. Extravasation of blood was not the necessary consequence of a fracture.

Cross-examined: Was satisfied that the extravasation resulted from the fracture. Believed that the extravasated blood was the effect of the fracture. The bone in the region of the skull, where the deceased was truck, was thinner than in other parts. There was no external appearance of injury. It was possible that apoplexy might have caused his death. Very heavy blows might, and frequently were given, causing internal injury, without disturbing the plates of the skull.

This closed the case for the prosecution.

Mr. Purefoy said, that the jury must have gathered from the address of the learned Attorney-General, that the offence on which the prisoner stood charged, was one for which the law required no less expiation, than the life of the offender. He, the learned counsel, could not but advert with sincerest approval, to the calm and dispassionate manner in which the case had been submitted to the jury by the learned Attorney-General. It could not be concealed that, about this transaction there had been great excitement out of doors; and if that excitement could be supposed to have any influence on the minds of the jury, then farewell to justice. But of this, he, the learned counsel, was well satisfied; that as sensible and just men, they would weight this case in its individual merits; without reference to any thing which had been said or heard about it in other places. Now under correction of his Honor, he, Mr. Purefoy, would submit what he, the learned counsel, considered to be the law of homicide. The accompanying circumstances to the violent death of a man from a fellow-creature's hands, were so various, that the law, for these various circumstances, had annexed a graduated series of crimes, from wilful murder to justifiable homicide. It would be for him, the learned counsel, to shew, which he believed he should be able to do, that the circumstances of the present case were not such as would justify the jury in sending this unfortunate prisoner, a convicted murderer, to an ignominious death. The law of England, the principles of which were founded on humanity, had declared, that if a man in the heat of passion took the life of another, he should not for this offence be punished as a murderer. All the decisions in cases similar to the present, had been disposed of on this principle; and he (the learned counsel) felt the utmost confidence that the jury, judging from the evidence which had been elicited, would be unable to find that the prisoner had been guilty of this frightful crime. A public house quarrel between the prisoner and the witness Galloply, had it seems first drawn upon them the interference of the deceased. He, acting as became his character and situation, had attempted to take the prisoner into custody. The prisoner resisted, and at the end of the struggle, but still in a part of it, a blow had been inflicted, which, according to the evidence had been sufficient to occasion the death of the deceased. This, the learned gentleman contended, upon cases he cited, was not sufficient to sustain an indictment for murder against the prisoner. By different eminent judges it had been holden that if in a quarrel, and before the blood had time to cool, a man took the life of another, manslaughter was the highest offence which could be deduced from such a state of facts. Here there was no premeditation - no malice - and apparently, from the manner in which the various witnesses had described the blow to have been inflicted, no intention in the mind of the prisoner, to do any serious injury to the deceased. The conduct of the prisoner, upon being taken into custody, also forbade us to presume malice against him. His expressions of regret, and his hope that the case was not so bad as the constable supposed, clearly shews that the melancholy termination of this quarrel was as unexpected and as shocking to the mind of the prisoner, as it was to any other entirely innocent person. The learned counsel then commented on the evidence at some length, and expressed his earnest hope, that the jury in their verdict would give the prisoner the benefit of the many mitigating circumstances which could not but be obvious to any one, who had heard the evidence which the different witnesses for the prosecution had that day delivered in court. The learned gentleman concluded by saying he should call several respectable witnesses who would speak to the previous good character of the prisoner, and upon the case as presented to the Jury, and on the evidence of these witnesses, he, the learned counsel, would commit the prisoner's case to their hands.

Thomas Easton examined by Mr. Purefoy : Knew the prisoner at the bar, and saw the struggle in which Connell lost his life; had seen the prisoner and another man engaged in argument. Prisoner struck the other man, and the constable then interfered; both took stones in their hands, as if about to throw at each other.

William Timothy Cape, Esq., and other witnesses, spoke to the good character of the prisoner, in so far as they were acquainted with his conduct and habits, and this closed the prisoner's case.

The Attorney General although entitled to a reply, waived his privilege, and therefore his Honor at once commenced the summing up.

His Honor, in charging the jury, said, that the prisoner's counsel had addressed them very temperately and properly upon the different points he had urged in favour of the prisoner; and although his Honor quite agreed with the learned gentleman in his law, that where, in the heat and excitement of a struggle, such as had been described that day, and that struggle arose between merely private parties, the crime would amount only to manslaughter; yet the case was greatly altered where, as on the present occasion, the contest was between the offender and an authorised agent of the law. He (Mr. Justice Burton) felt satisfied that this important consideration would bear him out in saying, that every act of violence done by a prisoner, after being taken into custody by an officer of justice, deprived him (the offender) of the full benefit of that merciful distinction, which had been insisted upon by the learned counsel, and which would be in all cases extended to merely private parties. In the present case, it was apparent that the unfortunate deceased interfered for the purpose of preventing a breach of the peace. In that interference he had acted with propriety, and whilst thus acting, and when surrounded by a great number of observers, had been violently deprived of a life valuable to the community, and the loss of which had perhaps inflicted ruin on his unfortunate family. Sorry was he (the learned Judge) that he felt himself obliged to say, that in this country just and correct notions respecting legal officers did not seem to obtain. Too frequently, he feared, that instead of being estimated as the guardians of society, they were regarded rather in the light of public enemies. That a number of by-standers should calmly look on, as if to ascertain which were the stronger man, and suffer their appointed guardian and protector to be slaughtered before their eyes, without moving a hand to prevent it, was not by any means creditable to themselves, or to the community of which they were members. Rather should they, when such an outrage was being committed before them, have stepped in like men, and like Englishmen, and rescued their officer, and vindicated the sacredness of the law. It had been said, that in the time of Alfred, such was the universal reverence felt by the people for the law, that a purse of gold might be left on a way-side hedge, secure from theft; and another writer had said, that the constable's staff was sacred in the hands of a child. This was the reverent spirit in which the law should be regarded, and his Honor trusted that it might be a growing one hence forward in this Colony. True enough it was, as the prisoner's counsel had urged, that the law of England was based in humanity; and that her magistrates administered justice in mercy. But even higher than this high principle, was the one binding on every Judge's conscience, that "truth must prevail, and guilt must not go unpunished." It would be then for the jury, upon a careful consideration of the whole evidence, to pronounce the guilt or innocence of this unfortunate prisoner. His Honor then carefully went over and commented on the evidence and concluded by leaving the prisoner's case in the hands of the jury.

The jury retired, and in about a quarter of an hour returned into Court with a verdict of "Guilty, coupled with a recommendation to mercy."

The prisoner being asked what he had to say why sentence should not be pronounced upon him, seemed to be much affected, and declared that the fatal blow was altogether accidental, and that he never had the slightest intention to take the life of the deceased.

His Honor then, with visible emotion, feelingly addressed the prisoner upon the unhappy situation to which his intemperance of passion had reduced him, and concluded by assuring him, that the recommendation of the jury would be conveyed to the highest quarter, and that his life would be spared. Sentence of death, however, would be recorded, and although this would be commuted to an inferior punishment, the prisoner must not delude himself with the exception that it would be at all a light one.

During the trial, which lasted the greater part of the day, the Court was in a very crowded state.

Note

[1] See also Sydney Gazette, 13 January 1842; Australian, 13 January 1842.

Published by the Division of Law, Macquarie University