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

R. v. Goodwin and Connock

Aborigines, attacks on - manslaughter - police, criminal defendants

Supreme Court of New South Wales, Port Phillip

  

Willis J, 17 June 1841

Source: Port Phillip Patriot, 20 June 1841

[Michael Goodwin and Thomas Connock, troopers in the mounted police, were indicted for the manslaughter of an aboriginal native, named Jagerrogger otherwise Harlequin, by compelling him to walk from the Goulburn to Melbourne, a distance of 80 miles, with a dog chain round his neck, and a pair of handcuffs on his wrists, in two days, on the 10th of January, 1841.

The Crown Prosecutor opened the case, and called---

Henry Rose, who deposed---I am a serjeant in the mounted police, in charge of the station on the Hume; I remember about the 27th or 28th of November last being sent for to take a prisoner in charge at Mr. Ewing's station; on my arrival I found they had taken a black man into custody, and he was delivered over to me; I remained there that night, and on the following morning proceeded with my prisoner, (whose name was Harlequin,) to my quarters; the distance from Mr. Ewing's to the police station is 14 miles; when we arrived I gave him something to eat; I had handcuffed him from Mr. Ewing's to my station, when I put a small collar or dog chain round his neck, for security; the chain had been used to fasten a horse with; I secured it with a padlock; it could not slip as a noose would; I gave him in charge to troopers Byers and Rowley, with instructions to proceed that evening to Mr. Barber's station, the following day to the Ovens, and the succeeding day to the station of Corporal Kirshaw, at the Broken River; when I took Harlequin in charge he was in good health; a common horse chain would weigh one pound.

His Honor observed it would be necessary to produce the chain, as that would be the best evidence for the Jury to decide upon, and he regretted it was not forthcoming.

Examination continued.---The chain was about four feet in length; one end of it was round the prisoner's neck, and the other part in the trooper's hand; I put the chain on the deceased at the barracks; the padlock would, I should suppose, weight about a quarter of a pound.

Cross-examined by Mr. Cunningham, who, at the request of the Judge, defended the prisoners.---I considered the chain absolutely necessary for the security of the prisoner; we generally secure prisoners in the way we can march them best.

By the Foreman of the Jury.---I cannot speak positively as to the day; the chain was for a horse's neck; I never put a chain on a white man for security; I have seen a chain put on a black man for the purpose of insuring his safety; before I put the chain on the deceased he made no attempt to escape.

By the Judge.---Black men are more difficult to secure than whites; they are more likely to escape in the bush than a white man; I considered this the only safe mode of securing the deceased; when I started the escort he had no handcuffs on; this was after I put the chain on his neck.

Peter Byers deposed,---I am a trooper in the mounted police; on the 29th November last I was stationed at the Hume; on that day I had a prisoner delivered into my charge by Serjeant Rose; he was a black, named Harlequin; we started, and arrived at Mr. Barber's station that night, a distance of 10 miles; it is a road easily travelled; we walked at the rate of about three miles and a half an hour; we slept there that night; Harlequin was secured with a strap round the neck, with a small padlock and chain affixed to it; I am positive it was a strap; the chain was between three and four feet long; he was also handcuffed from the station to Mr. Barber's; I saw Serjeant Rose put the strap on the black's neck; we secured him at night by putting handcuffs on his legs, and fastening the chain to the wall; this was in addition to the handcuffs on his wrists; the chain was put through the slabs, and fastened so as to give the prisoner as much room as possible; we left Mr. Barber's station on the following morning; the deceased was then in good health; he eat his food well, and arrived about sun down at Mr. Reid's station on the Ovens; the distance from Mr. Barber's to Mr. Reid's is about 36 miles; part of the road is very rugged, and part very good; deceased did not walk all the way; I placed him behind me on my horse at a place called Rocky Water Hole; I did this in consequence of finding one of the brass plates worn by the blacks, by which I concluded a tribe was near at hand; the Rocky Water Hole is about 17 miles from Mr. Reid's station; deceased rode about eight miles; he did not complain of being fatigued, neither did he appear so on his arrival at Mr. Reid's; he eat his supper heartily, and appeared quite healthy; Rowley, another trooper, accompanied me; the deceased had been handcuffed all that day, and the strap and chain were also round his neck, and held by Rowley or myself; Serjeant Rose desired us to keep them on; we secured our prisoner at Mr. Reid's in the same way as we did the night previous at Mr. Barber's; deceased made no complaints; had he felt disposed he knew enough of the English language to do so; we left Mr. Reid's about half-past seven o'clock the next morning, and proceeded to the Broken River, a distance of about thirty miles from Mr. Reid's; we arrived there about sun down; the deceased was secured that night as on the previous one; Corporal Kirshaw who has charge of the station took the prisoner in charge from us; I disobeyed my orders by putting irons on the prisoner's legs, but I did not consider him safe without.

Cross-examined.---If I had taken the chain from the deceased's neck, and he had then escaped, I should have been liable to punishment.

Judge Willis.---I say again and again, the chain should have been produced, but it appears to me no enquiry has ever been made for it. I have already gone to the utmost verge of legal evidence by putting the question as to the weight of the chain.

Abraham Kirshaw, deposed---I am a corporal in the mounted police, in charge of the station on the Broken River; I remember, in the beginning of December last, receiving a prisoner in charge from Byers and Rowley; he was a native and called Harlequin; he appeared to me to be in good health; I gave him some refreshment, and he was secured for the night; there was a chain round his neck, but one of the escort took it off, as it belonged to him.

Peter Byers, recalled: the chain was not mine; I did not take the chain off deceased's neck.

Examination continued.---Harlequin's neck was not swelled when the chain was taken off; I kept watch over deceased that night, and on the following morning I started with him for the Goulburn; I led him with a collar chain and a strap; there was also a padlock on the chain to prevent its slipping; the chain was about a pound weight; we stopped that night at one of the Seven Creeks, a distance of about 28 miles from the Broken River; the road is a bushy road not easily travelled; we had plenty of refreshments which we procured on the road; deceased did not complain of fatigue; he rode about two miles that day; I secured him in the usual way that night and on the following morning we proceeded to the Goulburn, which was about 29 miles from where we halted the night previous; about twelve miles from the station he complained of a pain in his side, in consequence of which I halted for about an hour, and procured some food for him at Mr. Binney's; deceased then rode to the station; I considered deceased a very strong active man; the road from the Seven Creeks to the Goulburn is quite level; deceased was in the same state of health when I gave him up to when I received him, with the exception of the pain in the side of which he complained

Cross-examined---Where I halted there was no water to be procured; I stopped merely for the sake of the prisoner; Sergeant Kelly is in charge of the mounted police station on the Goulburn.

By the Foreman---I don't know the day of the week or the day of the month I gave the deceased over to Sergeant Kelly; I can read and write; I send my reports to the commanding officer; I make up my reports from memorandums I keep of occurrences.

Judge Willis, to Foreman---you are quite right in your questions; it is very necessary the date should be clearly proved, and the Crown Prosecutor should have taken care to have provided evidence to prove that fact.

Sergeant Kelly, being sworn, deposed---I am in charge of the mounted police station on the Goulburn; on the 4th of December last the deceased was given in my charge by the last witness; the prisoners at the bar were under my orders; I gave the deceased into their charge, and, as he complained of being sick, I gave orders how they should march him; deceased would not eat much; he slept that night in the barracks; he was chained to a post; we have no medical man on the Goulburn; when ill we are obliged to come to Melbourne for advice; on the morning of the 5th December, the prisoners left with the deceased in their charge for Melbourne; my orders were for them to proceed as quickly as possible to their destination; I gave this order because the deceased appeared ill; I put a chain around his neck covered with cloth to prevent it from injuring him; it was not a running knot; the chain weighed about two pounds; the distance from the Goulburn to Melbourne is 75 miles; I gave no orders as to the place the escort should halt; the prisoners told me they stopped at Mr. Green's station the first night, which is a distance of 35 miles from the Goulburn; I did not give the prisoners any written instructions neither did I receive any written report from them.

Cross-examined---I do not consider it much to travel from the Goulburn to Melbourne in two days; I deemed it advisable on account of the deceased's health to send him on immediately for medical aid.

By the Foreman---I could have detained the deceased had I considered it necessary.

Charles Colllington.---I am assistant-clerk in the police-office; I am a prisoner of the Crown; I have held my present situation about two years and a half; on the 6th of December last; I was in charge of the watch-house, during the temporary absence of the watch-house keeper; I have frequently had charge of the watch-house; on that day, the prisoners at the bar, brought in a native called Harlequin; this was between two and four o'clock when I received him in charge; he had a chain round his neck, about three-quarters of an inch in circumference; it was what is usually called a dog-chain; I did not observe any cloth round the chain; there was no cloth outside the chain; I do not know if there was any inside close to the neck; it was so tight I could not put my finger through it; I did not feel any cloth inside; I received the deceased at the door; his face appeared much swollen; he appeared to have much difficulty in breathing; I took the chain off his neck. (The witness was here overcome and fainted.) The court was in consequence adjourned for a quarter of an hour.

Examination continued.---Water was offered him by me, but he refused it; on taking off the chain, I saw no cloth, or marks upon his neck; he was put into a cell, and he immediately threw himself down; at one end of the chain there was a square piece of iron rove through one of the links; the prisoner Goodwin was present when I took off the chain; it was with the knowledge and authority of Mr. Wright, the chief constable, that I was in charge of the watch-house.

Francis M'Carrick being sworn, said---In December last, I was watch-house keeper; I am now a constable; I remember having had a prisoner named Harlequin in my charge; I was absent on other duty when the prisoner arrived; I had left the last witness in charge of the watch-house; on my return I gave him some refreshment, but he only took a little tea; seeing the deceased was very ill, I went and informed Dr. Cussen, who came in about half an hour after.

Collington recalled---The deceased had been in the watch-house about half an hour before the watch-house keeper returned.

Dr. Cussen, deposed---I am Assistant Colonial Surgeon; I remember perfectly the 6th of December last year; I attended the watch-house that day, between the hours of five and six o'clock, to visit a black man that had recently been brought in from the interior, by the mounted police; I found him rather hot and feverish; I understood he had been brought in a long journey that day; the symptoms appeared to me to be very mild; when I first saw him he was sitting on the floor, with his back to the wall, he had all the appearance of a man excessively fatigued; these appearances were strictly in the first visit I made; I did not attach much importance to them on that visit; I saw him on the following morning; fever had then positively ensued, and he was evidently worse; seeing he was exceedingly ill, I had him removed to the hospital; on the evening I first saw the deceased, I prescribed for him; I merely sent a common purgative considering nothing more was required; when I prescribed for him on the second day my prescriptions were exceedingly active; I think I visited three times that day; I am not quite sure; I know I saw him at night; it was the violence of the symptoms that made me visit the deceased so often; he died on the night of Tuesday, the 8th, or rather towards Wednesday morning, the 9th of December; this fever was the most rapid that I have ever seen in the colony; I think in this case fever was caused by the journey and depression; at the time I first saw the deceased I attached no importance to the case.

By the Foreman.---I looked over the deceased generally; I did not observe any marks on his neck; I do not think that travelling with a pair of handcuffs on, and a chain round the neck in the month of December, would have caused mortal effects provided no pressure on the neck took place; but I should say it was better avoided; I made no post mortem examination on the body; I did not consider it necessary.

Cross-examined.---From what I heard of the pain complained of by the deceased in the side, I consider that would not have been sufficient cause to have stopped the journey; deceased could not have been labouring under any inflammation it must have been spasmodic altogether; had it been inflammatory it would have completely impeded the journey in a few hours; I have known persons fall victims through fear; I think it would have been much safer had the deceased been stopped on the road when he complained.

Re-examined by the Crown prosecutor.---I never before saw a case of fever in this colony where the patient was carried off in two days.

This was the case for the Crown.

Mr. Cunningham made a very elaborate address to the jury on behalf of the prisoners.

Judge Willis said he had not interfered with the learned gentleman's address, but he was surprised he (Mr. C.) had not asked him if there was any case against the prisoners to go to the jury. It was clear by the evidence of Doctor Cussen, that the pain in his side was not caused by the manacles, and that the symptoms when he first saw him were of so slight a nature, as not to prevent the prisoners bringing the deceased; it was clear they had treated him kindly by giving him provisions wherever they stopped.

Mr. Cunningham would, with His Honor's permission, call Mr. Wright, as he wished one part of the evidence for the prosecution to be set at rest.

Mr. William Wright, chief constable being sworn---I remember when the deceased was brought to the watch-house; I took off the chain, and gave it to one the prisoners; the chain was not fixed tight round the deceased's neck; it was fastened with a pair of handcuffs; Collington never took charge of the watch-house with my knowledge or approbation; I have had several constables dismissed for allowing him to do so.

His Honor then summed up the case. He observed, that after the evidence he had just heard, it was his duty to tell the jury there was no culpable excesses committed by the prisoners in the execution of their orders; they had merely obeyed the order of their officer or chief constable in carrying into force the execution of the law with which they were charged; and considered the prisoners had conducted themselves very fairly and creditably throughout the journey.

The jury without retiring, returned a verdict of not guilty; at the same time deeply regretting that the life of a human being had been wantonly sacrificed.

Published by the Division of Law, Macquarie University