R. v. Leary, 1841

Cassidy being sworn said -That on the day named in the indictment, himself and the deceased were looking out for bushrangers, on seeing the prisoner and another man within fifty yards of the hut where witness and deceased stopped; deceased challenged them, on which the prisoner dropt on his knees, and on the deceased desiring him to stand up he did so; prisoner then said to deceased, who was about to handcuff him, “do not hurt my hands,” and immediately fired a pistol at the deceased, the ball of which passed into his head over the left eye; witness then fired at the prisoner; whilst running away his hat fell off; the hat produced is the same and has two shot marks in it; I fired at the prisoner at the time his hat fell off; did not see the prisoner again until about five weeks back, when I was informed that a man named Leary was taken up on suspicion of having shot a constable; witness then recognised the prisoner, and now swears he is the man who shot the constable.

By the Jury. - Ward could not have so good an opportunity of knowing the prisoner as myself, in consequence of my having my eye steadily fixed upon him.

By the Judge. - Ward covered the other man, whilst I covered the prisoner; cannot state how far Ward was from me; I swear positively that the prisoner at the bar is the man who shot Dunn.

John Ward. - On the night named in the indictment, myself and the deceased and Cassidy were in a hut of Mr. Tottingham’s. Deceased looked out and said, there are two men coming, stop inside till they come nearer. Cassidy and Dunn told the two men to drop on their knees. Dunn asked Cassidy for the handcuffs. Cassidy threw them on the ground, and on Dunn stooping for them, he received a shot in the head, and fell-down. The man who shot Dunn had a black hat on, at the time Dunn was killed. It was from the smallest man the shot was fired. The tall man had on a Manilla hat, and a fustian shooting coat.

Patrick McCaull, was constable till the7th March, when he was dismissed. Heard Cassidy declare he would hang the man he had got committed, if he had never hanged a man before.

By the Judge - Cassidy was speaking of the man he had committed for the murder. Verdict, Guilty, accompanied by a recommendation from the Jury for mercy! Death recorded.

[1] This trial was held at Berrima, as to which see Speech to Jury (3), 1841.

Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).