[prisoner, right to counsel – manslaughter, convict killed by convict – criminal law, “ungovernable act of passion”]

R. v. Mansfield

Supreme Court of Van Diemen’s Land

Montagu J., 8 and 10 March 1842

Source: The Hobart Town Courier and Van Diemen’s Land Gazette, 11 March 1842[1]

Tuesday, March 8.

Before Mr. Justice Montagu and a Civil Jury

            Francis Mansfield the youth supposed to have committed the recent murder at Port Arthur, was placed in the dock; but on being asked whether he was ready to take his trial, said that he had a statement to make which he had not as then been able to complete. It would appear that the prisoner had communicated to Mr. Oapon a wish to have the assistance of counsel. In a conversation which ensued between His Honor and the Attorney-General, it was shown that the Court did not possess the power to appoint a counsel, though it certainly would be desirous that, in capital cases, such authority should be vested in it as was usual at home. It appeared too much to trespass so frequently on the time of a professional gentleman as to call on Mr. Macdowell, though no doubt existed but that he would at once, as he had repeatedly done before, undertake the defence.

            The Attorney-General said that he would lay the case for the consideration of His Excellency the Governor, who would no doubt allow the payment of the fee; pending the decision the prisoner was remanded.

Thursday, March 10.

            Francis Mansfield, a youth of about 18 years of age was indicted for the wilful murder of William Sheffield on the 4th ult, at Port Arthur. He was defended by Mr. Macdowell and pleaded “not guilty” to the charge.

            The Attorney-General, after giving the jury an expose of the evidence to be brought forward, called

            George Able, constable at Port Arthur. - Know the prisoner at the bar; and knew the deceased; saw them both on the 4th February; they were at work on that day at about 1 o’clock; saw the prisoner about a quarter before 12 on the same evening; he was brought to Port Arthur by a soldier; asked him why he had absconded? - he said he had got what he absconded for; on my saying that he would be punished for it, he replied that, if so it would not be at Port Arthur, but at Hobart Town; his overseer had, the same afternoon, at half-past 3, reported the absence of the prisoner and the deceased; placed him in close confinement, and inquired where Sheffield was, he said that he had left him in the bush, and believed him to be dead; that he had struck him on the head, and that he would tell me all about it; I inquired whether he had struck him with an axe? - He replied that he had struck him with a stick; he said that he would go the next morning and show me where the body lay; I asked whether he could not find the body that night? - he said he thought he could, and that he would go with me; the chief constable accompanied us; after proceeding nearly half a mile on the Macquarie-road, about 200 yards on the right, in the direction of Mount Barker, we found the body, the prisoner seemed anxious to find the body, and was cool and collected; we had a lantern with us; he took us at once to the body, and said there he is; knew it to be that of Sheffield; he was lying on his back; the face was covered with blood; part of the brain protruded from the back of the head; on reaching the spot I asked the prisoner what he had done with the stick? - he said that he had thrown it away, and could not find it that night, but would do so next morning; he said that he had left the deceased lying on his side, not quite dead; I asked what had caused him to commit the deed? - he said that they both sat down to strike off their irons, that he was holding Sheffield's irons whilst the latter struck them with a piece of wood; in doing so, the deceased had struck him on the fingers; he then struck Sheffield with his hand; the deceased picked up a stick to return the blow; he aimed at the prisoner, who got away, and picking up a piece of wood struck him on the head, and knocked him down; repeated the blows several times and afterwards left him; I then took the prisoner back to the Settlement; about an hour after I returned to the spot, accompanied by the Commandant and the Surgeon, and some prisoners to carry the body; we found a stick near where the body lay; saw marks on it, as if some person had been striking his irons with it; it had fresh marks of blood about it, (piece of gum-wood about 18 inches long and 3 inches thick, produced and identified;) when I returned next morning at daylight, Constable Abrahams showed me a piece of wood (produced and identified - the limb of a small tree, 3 feet long and 2 inches in diameter) on which I saw some light hair and spots of blood; the deceased was of a fair complexion; am not aware that any quarrel ever took place between the prisoner and the deceased; the prisoner’s name in the gang was Yorkee.

            By Mr. Macdowell, counsel for the prisoner. - It was a very dark night; we took a lantern on our first visit.

            John Herring. - Was, on the 4th February last, employed as overseer at Port Arthur; the prisoner at the bar and the deceased were in my gang, employed in sawing and splitting wood; last saw them together about 25 minutes past 1 o’clock; I had occasion to go about 300 yards to see other men, and on my return found that the two had absconded.

William Sparlow, a private of the 9th regiment - Was on duty at Port Arthur on the 4th February last; was stationed at Mount Barker; was preparing to go to bed when I heard the dogs bark; went out and challenged the person; he did not reply at first, but on repeating the question, he said “a bolter;” I took him into the hut and put on a pair of handcuffs; on the way to the Settlement he begged hard to be let remain in the hut till next morning, promising me a new pair of boots if I would, and that next morning he would shew me what might put something in my pocket; I asked him what he thought he would get for bolting; he said it would not be the Commandants sentence that time; was aware that prisoner had absconded; asked him whether any one had been with him; he replied in the negative; he seemed quite cool and collected.

            Mr. Richard Newman - chief constable of Port Arthur, corroborated a portion of the former testimony; he was aware that the prisoner and the deceased had absconded on the 4th, and had received him from the soldier; he had also accompanied the prisoner and Constable Abrahams to the spot, about three-quarters of a mile from the Settlement, where the body was found; he said that he had killed the deceased, and that he had done so because he could not get him to do his work, and that he knew he should be punished for it not being done; they agreed to abscond together, and went to the spot where the body was found; there they went to sleep for some hours; the prisoner got his irons off, and was in the act of assisting the deceased in doing the same, when the fatal scene took place as described by a former witness; when the prisoner was brought in his trousers had a great deal of blood on them; (produced, chain gang yellow, with many stains of blood on the power parts of the legs.)

            Mr. Macdowell cross-examined this witness to ascertain from him whether he understood the prisoner to mean that he had “agreed to abscond because he could not get him to do his work, and that he would be punished,” or that he had “killed” him because he had not done his work; but an answer to the purpose could not be obtained, in consequence of Mr. Newman not being able to sense the difference of induction.

            Joseph Abrahams, constable at Port Arthur, had watched the body after it had been pointed out by the prisoner; he overheard the conversation which passed between Mr. Newman and Mansfield, which was repeated in full.

            Dr. Brownell, assistant colonial surgeon at Port Arthur, accompanied the Commandant to the spot where Sheffield’s body was found; the man was dead and lying on his left side; there were two large wounds on the left side of the head; a portion of the brain protruded from the wounds, as also a small portion of bone; there was a large quantity of blood on portion of the ground on which the head was resting, and parts of the brain lying in different places; the skull was fractured in many places.

            Mr. Macdowell, in his defence of the prisoners, contended that the only portion of the evidence which could lead the jury to aggravate the verdict of manslaughter into that of murder, was the testimony of Mr. Newman, between whose report at the inquest and that made by him on the present occasion, a most unaccountable discrepancy was made to appear. The learned counsel was firm in the belief which he communicated at length to the jury, that the chief constable must have misconstrued the meaning of Mansfield, that “he had absconded because he could not get the deceased to do his work”, into killing him, for that reason.

            The Jury retired at half-past four o’clock, and did not return till near eight, when they gave in a verdict of Manslaughter. The cause of the delay was the existence of four dissentients to the more lenient view of the case.

            His Honor then sentenced the unfortunate youth (who, during the whole trial, continued to give way to paroxysms of grief, which was occasionally relieved by a burst of tears,) to transportation for life, and the first seven years to be spent amid the scene of his last heinous offence.

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