[murder, malice - manslaughter - soldier, defendant in criminal action - Launceston - drunkenness]

R. v. McMahon

Supreme Court of Van Diemen's Land

Pedder C.J., 12 January 1833

Source: Independent, 12 January 1833

Joseph McMahon, Private in 63d Regt., stood charged with the murder of Henry Clarke. The information containing three counts.

The Attorney-General opened the case by stating that all the counts in the information, though different, were in law the same. You are to be satisfied, Gentlemen, he observed, that the prisoner was the cause of the deceased’s death by striking a blow on the head with a stick. The learned gentleman then proceeded to point out the difference of the wording of the counts, and gave a short summary of the fact of the case. He then defined the legal import of the word "malice." In contradistinction to the common acceptation of the term, and quoted several passages from Russell, as to malice implied, and malice in fact, and proceeded to call -

William Lucas. - I live down at the Wharf, and am servant to Mr. Doddery who keeps the Commercial Tavern; I recollect being in my master’s house on the 17th Decr. last. Some soldiers came into the house about 6 o’clock in the evening. I was in the yard when they came in. They asked for half a pint of rum, and went into the tap-room; they appeared to me tipsy. They did not get any rum. There was a man who sold cakes in the tap; I do not know his name, but I hear he has since been drowned. He was sitting down when they first went into the tap. They said nothing when they were refused the liquor. I heard no person say any thing to them; there was no person but the cakeman in the room; the man who refused the liquor was in the tap. We neither of us said any thing to them. When the liquor was refused they turned round and knocked the cakeman down on the ground. The prisoner was one of the soldiers. They knocked the cakeman down with their fists, both of them; when he was down they both kicked him. I cannot say where they kicked him, they kicked him half a dozen times before I could get to him. He called out for somebody to come to assist him. I ran to his assistance. The cakeman was sober. I took this man (the prisoner) by the collar, and put him out of the room. I went back and caught hold of the other soldier, when the prisoner returned, and they both caught hold of me and tore my things, and beat me; I tried to turn them out, and succeeded; when they were turned out there was a man belonging to the Government boats crew coming from the river towards my master’s house, and they ran after him; he said nothing to them. The sailor was a little further from the house than here to the window (about 4 yards), when I first saw him. I saw the sailor when I shut the door; it was as soon as I shut the door that they ran after the sailor; I saw them through the window, the window was shut; I did not hear the soldiers say anything to the sailor before they ran at him; the sailor ran away. There was only one sailor then. I then went to the front of the house, and I saw some of the sailors who belonged to the schooner Harlequin come up to the soldiers and stop them. The sailor was about 6 or 7 yards ahead when the other sailors stopped the soldiers; I was standing about 10 or dozen yards from the soldiers. I cannot tell whether the soldiers said any thing to the sailors, they caught hold of the soldiers by their clothes. Then one soldier began fighting, the sailors caught hold of both soldiers. The soldier fought with some of the sailors, there were 5 or 6 sailors. It was not the prisoner who fought. Before I saw the soldiers stopped I saw Clarke driving his bullocks on the opposite side of the road; he was coming towards my master’s house, and was about 40 or 50 yards from the house and the soldiers. I did not see him leave his team before the soldiers were stopped. When they were stopped he came across the road and stood within about a yard of me. This was about 3 or 4 minutes after the soldiers were stopped - the one soldier was fighting then, Clarke said nothing to me, or the soldiers, or sailors. I saw the prisoner go to the fence and pull a palling off. He walked up to Clarke with the palling in his two hands, and struck him on the side of the head. (Witness showed the attitude of prisoner.) It was a middling width of palling, and about 5 feet long. He said nothing to Clarke when he struck him. Clarke fell down senseless. I don’t know on which side of the head Clarke was struck. He stood to my right, and the soldier was in front of us. (Witness shews how deceased was standing.) Clark fell down at my feet. One of the sailors and another man took the palling from the soldier. It was about 5 or 6 yards where the palling was turn off to where Clarke was standing. The prisoner was a little way from the palling when he turned and tore it off; the other man (soldier) stood still by the fence, but did not do anything. The prisoner said nothing. The sailors then chased the prisoner and beat him; I picked Clarke up; he was senseless; he fell off the walk into the road; I do not know if fresh stones had been recently laid where he fell; the path was higher than the road, whether the road was smoothe or there was a number of stones about, I do not know. Clarke came to in about 10 minutes. I did not look at his head before he came to; I poured water on his head, and dashed some in his face; the blood was running down on each side of his cheek. About half an hour after Clark went away, saying he would search for his bullocks; I am certain the prisoner is the man who struck the deceased. The sailors who stopped the soldiers were drunk, they said nothing to the soldiers. Did not see Clarke again until the Thursday following, when he was lying dead in the Colonial Hospital.

After cross examination by Mr. Sutton, the Attorney-General called Wm Dudery, Dr. Garrett, Mrs. Young, and Mr. Goodwin, with which, being merely in corroboration, it is needless to occupy any farther space.

The prisoner in his defence, stated, that he had no recollection of what passed, more than that the next morning he found himself very much bruised and cut. The prisoner called Mr. Cookney and Lieut Dexter, and received from the latter an excellent character for some years past, when the Chief Justice proceeded to address the jury, drawing their attention to the remark made by the Attorney-General in opening the case, as to the presumption of malice, also to a few other points of the case, and then recapitulated the evidence. Afterwards, the jury retired for about ten minutes, when they returned with a verdict of Guilty of Manslaughter.

The prisoner was sentenced to transportation for life.