[assault - soldiers, defendants in crime]

R. v. Cleary, Dillon and Delany

Supreme Court of Van Diemen's Land

Montagu J., 16 August 1836

Source: Cornwall Chronicle, 20 August 1836

Before his Honor Judge Montagu, and a Military Jury.

            Thomas Cleary, a private in the 50th Regiment, stood charged with drawing his bayonet, and attacking the person of John Tildesly, with the intent to do the said John Tildesly some grievous bodily harm, and John Dillon and Mark Delany, also, privates in the same regiment, were charged with siding and abetting the said Thomas Cleary.

            John Tildesly sworn - is a Publican; remembers the 25th April; was at home; about 7 o’clock in the evening three soldiers came to the house; thinks they were not sober; had a pot of beer; about 8 o’clock the drum beat at the barracks; told them it was time for them to go away; Delany said they had no business to go - they wanted more to drink; they then put some money on the counter, and said, if they were not served, they would fine me; I told them if they would not leave, I would report them to the Commanding Officer; I came round the counter and was going out at the door when they pursued me, one of them holding his bayonet out; I then turned back again and called a constable; the constable said he would not interfere with the Military; hearing this, I ran up the street, to report them to the Commanding Officer; when about 200 yards from my place I heard something behind me; turning around, I saw the soldiers after me, two had their bayonets drawn, and another a stick in his hand; I ran on; when I got to Mr. Kenworthy’s corner the prisoner Cleary overtook me and ran the bayonet which he held in his hand through my hat into my head; Delany cut my hat with his bayonet in three or four places, but did not hurt me; Dillon had a stick in his hand, with which he hit me over the shoulders; I then started and ran on further until I came opposite to two persons, Mr. Massey and another, who were standing near Mr. Cozens, when the prisoner Cleary was running after; I said “for God sake, Mr. Massey, stop this man, he has run his bayonet in me”; I then went to the Barracks and reported the affair to the officer on duty; the wound I received bled; I felt the blood trickling down; it was not a very great wound; Dr. Seccombe, the next morning, pulled off the plaisters in the Police Office, and examined it; there was a hole in my hat through which the bayonet had been thrust; (here the hat was produced) it was never in this state before; am confident these are the men; they were not dressed as they are now - they were in soldiers clothes.

            By his Honor - It was 200 yards from my house when I saw the soldiers; they were very close behind me when I turned round - about 60 yards from me; Cleary then struck me; I hollowed out for the watchman all the time they were upon me; there was no one in the street; they were not sober when they came to my public house; there were four soldiers - one of them went away; he was sober but the others were not; the soldier that was sober left when I told the prisoners I would report them to the Commanding Officer; there might have been twenty people in the house when I left it; never touched or molested the prisoners in any way whilst they were in my house; one pot of beer was all they had of me ; I saw them drinking with some sailors; they made use of some expression; am sure Delany said “I'll knock your brains out,” or something to that effect; do not think they said anything else; after I saw them, I ran as fast I could to Mr. Kenworthy’s corner; they ran faster than I did; I was perfectly sober at the time.

            By the prisoner Cleary. - The soldiers were outside between the bar and the door; nothing was said to me; the soldiers were drunk; did not leave when the constable came in; I left you in the house when I started to go away; never saw the soldiers after until we met at the corner; the constable was not in the house.

            Here Cleary address the Court, and said, that both the Constable and Tildesly followed him across the green; that he called in the constable in lieu of Tildesly’s doing so; and that Tildesly was in the house when he left to go to the Barracks.

            By the Prisoner Delany. - No conversation passes between the soldiers and myself; do not recollect any thing about the constable having been asked if soldiers had as much right to drink as crown prisoners in a public house; the soldiers were sitting and drinking by the fire place.

            By his Honor - Cannot say, on my oath, which of the prisoners struck me with a stick; I have sworn to the best of my knowledge and belief; at the police office I pointed out the man that struck me; cannot account for swearing one way in  the police office, and another in this court; to the best of my knowledge I have given the same story at the police office as I have done here; never saw these men previous to the night in question; saw them next morning at the Police office, in soldiers’ clothes.

            By a Juryman - It was a fine moon-light night, as clear as day; the constable’s name was John Smart; cannot tell where he is now; I could see Cleary’s face distinctly.

            Dominick Albert Turner, sworn - I am chief clerk at the police office; recollect these men being examined at the police office; I should not be able to identify them now; them are so much altered, in appearance, I should not know them.

            By his Honor - I took down the evidence of Tildesly, at the police office; the prisoners were not present, but Captain O'Hara was present, and no onelse [sic] that I recollect; it was the day following the transaction had taken place; this deposition is in my hand-writing; it was read over to the prisoners half an hour after it was written; the Police Magistrate was present; the witness, Tildesly, saw the prisoners in the yard, and pointed them out through the window; their names were told to him, cannot, on my oath, say that these are the men, they are so much altered.

            His Honor Judge Montagu here asked the witness, if it was the practice in Launceston to take depositions down from the accuser in the absence of the accused, and in a very luminous and eloquent manner, pointed out the impolicy and injustice to the prisoners of such a mode of proceeding; he showed the disabilities under which the accused party must labor, from not being at once confronted with their accusers, face to face, and took the opportunity of telling the Police Magistrate, and the Magistracy generally, that great inconvenience must result from this mode of procedure. Mr. Clark told his Honor, that it rarely occurred, except when press of business required it.

            Thomas William Massey, sworn - I was in Launceston on the evening of the 25th April; I was standing in front of Mr. Cozens’ shop, talking to Mr. Hynes; about 8 o’clock, between Mr. Bartlett’s and Mr. Cozens’, I heard a man calling for the watch; I saw a bayonet glittering in the light; Tildesly came running up; I said I was a constable, hoping to prevent the soldier, who was following him, committing any outrageous act; the soldier then said, “by Jasus[sic], take that;” at the same time making a thrust at me; a crowd then collected; I slipped away and went into Mr. Bartlett’s, as I was lighting a segar[sic] at the lamp, a number of persons rushed in, and threw upon my side on the counter; I saw Mr. Bartlett closing his half-door, and at that instant I saw a soldier force his bayonet through the window; I then threw a pewter pot through the sash, and said I would pay for the damage; I cannot swear which was the man that came up to Tildesly; I think Dillon is the man; a soldier was following Tildesly, who had no hat on; the blood was running down his face; a man stabbed at me twice; cannot say what became of Tildesly, such a crowd collected.

            William Birmingham sworn - is a free man; by trade a journeyman baker; was  at this time a constable; was in Charles-street on the night in question; my attention was called to a row; I heard a rattle spring; came up, and saw a man of the name of John Phillips bleeding; about a quarter of an hour after that, I took a bayonet from a soldier 50 or 100 yards this side of the Kains; he and two more approached me, to attack me; I closed with him, and took it from him, and gave it to the watch-house keeper; there was no crowd around him when I came up with him at the time.

            James Bydee, sworn - I am watch-house keeper; this is the bayonet marked K, which I received; there were three streaks of blood on it, near the point, very slight.

            John Kelly, colour sergeant of the 50th regiment - I know the prisoner Cleary; he had a bayonet in his possession of the mark K, No. 46, on the 25th April last.

            By his Honor. - No other bayonets are marked in this way; in every company there are plenty of the No. 46, but none with the letter K; it might have been four years since that bayonet was served out to him, whether he had that particular bayonet on the 25th April last, cannot say, he ought to have had it; he belonged to my company.

            Lieut. James Weir, sworn - I was the officer on duty on the 25th April last; was present at roll call; all the men were not present; the only men absent were Cleary, Dillon, and Delany; the roll is called at ½ past 8 o’clock; I took out 1 sergeant and a party of six men; I did not see the prisoners; one was taken by the picquet, which had gone out before; I saw Cleary in charge of the picquet; he had no bayonet; cannot sat if he had the scabbard; it was a little after 9 o’clock; all the men should have been present at roll call.

            Sergeant Nolan, 50th regiment, sworn - I went out and took the prisoner Cleary into charge, and placed him on board the Hulk; he had no bayonet on; the other two prisoners got away; I brought him down with the corporal and two men, and gave him in charge.

            By His Honor - Dillon had no bayonet or side belt - Delany might have had; they did not appear drunk. Cleary had blood on his face when I took him; the blood was trickling down his face, and he seemed very weak.

            William Seccombe, Assistant Colonial Surgeon, sworn - I know John Tildesly; I was called into the Police Office in the latter part of the month of April last; he had a wound on the right side of his head penetrating to the bone, a triangular shape - very much such a wound as a bayonet would inflict; it was not, from its situation, a dangerous wound; had it been lower; and a little more forward, it might have cut the temple bone, and been more serious; it was a stab. This bayonet would have produced such a wound; it was a punctures wound, and not a blow.

            This closed the case for the prosecution.

            The prisoner Cleary, in his defence, said, I went down with my comrades to Tildesly’s public house, and called for half-a-pint of rum; it was sent in to us - this we drank, and called for another; he sent it in by his waiter; he did not come himself. We heard the first drum beating, I said, we are time enough yet to get another half-pint; he would not give it to me. I went out and called a constable, who said he would assist me as much as he could. I asked if free people had not as much right to have a glass as Crown prisoners. Just then Tildesly and the people rushed out upon us; when I saw I was overpowered, I ran across the green - the constable and Tildesly followed; the constable put his foot against me, and Tildesly came up at that time, and the Sergeant of the guard, who took me in charge - this is the way I lost my bayonet.

            John Dillon, being called on to speak in his defence, said - that he came out of Tildesly’s house, hearing the bugles; knows it was late, and that he was the worse for liquor; going across the swamp, near the pit, to avoid the street, where he thought he should meet with ill-disposed people, of whom there are plenty in Launceston; was knocked down by a couple of men; one of whom, said, “oh, d__n his eyes, he has got nothing;” one taking his cap. He then went up the long swamp, until he got into the barracks.

Source: Cornwall Chronicle, 27 August 1836

Mark Delany, said - I am innocent of the charge; I have been in gaol these four months; small thanks to the blackguard that put me in.

            Several witnesses were then called for the defence, most of whom stated the prisoners were in a state of intoxication, and that it was an affray on the swamp between some parties unknown and the prisoners, and that a crowd had collected.

            His Honor, in summing up, dwelt most particularly on the words of the statute, upon which the indictment was grounded, charging the prisoner Cleary with the intent to do some bodily harm to Tildesly; and told the gentlemen of the Jury, the whole test of the offence against Cleary as principal, and that it all rested upon Tildesly’s evidence, and nothing short of a full conviction in their minds as to the vitality of the offence as regarded the intent, could convict the prisoners.

            After some lapse of time, the Jury returned a verdict of Not Guilty. - The prisoners were then remanded.