[murder – Supreme Court, doubts about powers on death of King – crown mercy]

R. v. Frappell and others

Supreme Court of Van Diemen’s Land

Pedder C.J., 28 January 1840

Source: True Colonist, 31 January 1840[1]

            This day the Criminal Sessions opened before His Honor Sir John Pedder, Chief Justice, being the first Sessions since the arrival of the commissions of the Judges under the reign of her present Majesty. Although there had been no interruption of the sittings of the Court - and although many cases have been tried, and sentences passed, since the expiry of the commissions of William the Fourth, the Judges have not ventured to try any capital cases. We need not add that all the sentences passed have been illegal, and that the Judges have acted on their personal responsibility, in passing these sentences, and the Governor in carrying them into execution. But although we have been sufferers ourselves in the case of “Death and the Bailiff” the peculiar circumstances of that case apart - we consider that the Judges in place of deserving censure, merit praise, for having on their own responsibility, prevented the Colony from being subjected to the fearful consequences of a total suspension of the judicial authority. But this does not exonerate the authorities in Downing-street from the censure due to their negligence, in subjecting the Colony to such consequences, and the Judges to such responsibility. Several persons have suffered a very long period of imprisonment, contrary to British law, under capital charges; and we have before us one instance of a person subjected to such imprisonment, being, when put upon his trial, discharged from the bar, without being called upon for his defence.

            In recording the proceedings of the Criminal Court, it is necessary to refer to those circumstances, to account for the extraordinary weight of the kalendar, as regards the number of capital charges to be tried.

The court was occupied all Tuesday with the trial of Frappell, Davis and Riley, for the murder of Matthews, on the 16th of March last. Our readers will recollect that Matthews had been at Frappel’s public house, the “Lord Nelson”, at the corner of Argyle and Warwick-streets, drinking with Riley, Davis, and others. On leaving the house he was followed by Davis and Riley, by whom he was robbed and killed by blows of a pailing. Frappell was committed as an accessary, he having stood at his own door and heard and seen the assault and scuffle which took place between the murderers and Matthews. From the deficiency, however, of legal evidence, Frappell was discharged on the close of the case for the prosecution; but those who heard the evidence were convinced that Frappell had been very properly committed for trial, and the acquittal, on legal points, has not altered that opinion. We were not present at the trial, but we have heard that the audience were fully impressed with the opinion that some of the witnesses were deeply implicated in the pre-concerted plan to rob Matthews of a sum of money, which he had foolishly “shewn” at Frappell’s. Davis and Riley were found Guilty, and remanded for sentence - a proceeding considered to be unusual; but, by a report founded on some expressions that dropped from the Judge, attributed to the absence of the Governor on his Lake excursion. Because if the Judge had passed sentence of Death, and fixed a day for execution, the time might have expired before the Governor had returned, to consider the Judge’s report. We are not acquainted with the important objects which have compelled His Excellency to absent himself from the seat of Government at a time when his presence was so much required, with reference to the present very important Session of the Criminal Court. But as “the first lady in the land” is a party in the present expedition, we presume that our Tasmanian chivalry will consider it a subject too sacred for the “vulgar” inquisition of the public censors, and if we hazard those observations upon it, which the public interests appear in demand, we shall have some of the Knights Errant of the “Union,” raising a crusade to put us down as “paynim” infidels - and the “Gladiators” of the Courier making more courageous assaults upon us under the cover of a double-quilted petticoat, both as banner and shield. But at the risk of having to do battle with both, in the cause of justice and the people, we must venture to say, that the “highest gentleman in the Colony” - that is, the gentleman in whom is invested the Executive power of the laws, ought not, at the present moment, have absented himself from the seat of Government, where his presence is so necessary to give prompt effect to the awful awards of justice, which have been so long suspended by the culpable neglect of other authorities.

There is a very general sentiment of disapprobation prevailing, against the absence of the Governor at this moment, which we feel is our duty to record, that those who are the authorised, or self constituted defenders of the Government, may explain to the public the reasons by which it can be justified or excused.

Pedder C.J., 6 February 1840

Source: Hobart Town Advertiser, 7 February 1840[2]

            The Court met this day, when the following sentences were pronounced:-

John Davis and John Riley (tried with Frappell) for murder of James Mathews - Death, without hope of mercy. His Honor the Chief Justice addressed the unhappy men at considerable length, pointing out the bearings of every part of the evidence against them. The only reason they were not sentenced before was that his Honor wished to consult with Mr. Justice Montagu on an alteration which had taken place in the law with respect to sentences, which it was now no longer necessary should immediately follow conviction. His Honor conceived that these men had no original intention of taking the life of the deceased, but as it resulted in the prosecution of a deliberate intention to rob him, the crime was not the less murder in law. The circumstances of the case did not present one feature which would induce his Honor to recommend their lives to be spared. Throughout his Honor’s address the prisoners were apparently unmoved, and bowed to the Court as they left the dock.