R v Cash, 1843

[bushranging – Cash, Martin – murder, mens rea – hue and cry – self defence – Port Arthur, conditions at – capital punishment, dissection – capital punishment, time of execution – robbery on highway – Crown mercy]

The avenues to the Court were crowded this morning long before ten o’clock, the hour of adjournment. On the opening of the doors the floor of the Hall of Justice was instantly filled by an anxious audience, (among whom were many females), to hear the trial of the notorious Martin Cash, whose lawless career has obtained for him “a bad eminence” among all friends of peace and order.

His Honor, Mr. Justice Montagu, took his seat precisely at ten o’clock. From the excellent arrangement made by the Under Sheriff, the javelin men prevented the Court from being over crowded, and although hundreds, composing “the pressure from without”, were disappointed in obtaining admission, yet the expediency of the precautions taken were evident in the preservation of order and silence throughout the entire proceedings.

On the bench, with the learned Judge, sat J. Burnett, Esq., Sheriff of the colony; and J. Hone, Esq., Master of the Court.

The Attorney General conducted the prosecution, near whom we observed, during the whole of the day, the Solicitor General.

We were sorry to observe that this able advocate is labouring under severe indisposition and hoarseness. At Mr. Macdowell’s request, all witnesses in the case were directed to leave the Court.

The prisoner, “the observed of all observers,” was then directed to be brought in, and placed in the dock. He was dressed in a good suit of sailor’s clothes, which he wore when captured; and maintained the same self possession which characterised his demeanor when the Coroner held his inquisition.

The Clerk of the Court, then read the information, which contained but one count. It charged the prisoner, Martin Cash, with having on the 29th August last, in and upon one Peter Winstanley, discharged a certain pistol, loaded and charged with gunpowder, and one leaden bullet, inflicting a mortal wound on the left breast, of which mortal wound the said Peter Winstanley, until the 31st day of the same month did languish, and languishing did live; and on the same day of the same mortal wound died; and that on the day above-named, the prisoner Martin Cash, the said Peter Winstanley, feloniously, wilfully, and with malice aforethought, did kill and murder, against the peace of our Lady the Queen, her Crown and dignity.

The prisoner, with great promptness, and in a confident tone, pleaded Not Guilty.

The Attorney General then rose and addressed the jury for the prosecution in nearly the following terms:-

May it please your Honor. - Gentlemen of the Jury:- The prisoner, Martin Cash, as you have heard from the information read by the Clerk of the Court, stands charged with the crime of “Wilful Murder.” It would be folly to suppose that, when the name is mentioned, you had never heard of him before; nor is it at all probable that you entered that box with your minds entirely undivested of a knowledge of the facts connected with the melancholy transaction which has led to this inquiry. But, I implore of you, as far as, under such circumstances, human beings can, to divest your minds of every pre-conceived opinion, and to banish from your recollection everything that you may have read in the newspapers, or heard through any other medium. I implore this of you, for the sake of the prisoner at the bar, and on every principle of right and justice; for the evidence in this case is not mixed up with that of any other, and your decision must be based on that evidence alone. I do anticipate that my learned friend will, with his usual acuteness and ingenuity, take advantage of every point of law, and exert his great powers in defence of the prisoner to the uttermost. I feel, therefore, that I can in limine, state generally what I intend to prove. It is a matter of notoriety that the unfortunate prisoner at the bar was a man proscribed by the Government; as an offender to be taken at all hazards and all risks. I do not anticipate that there will be any objection to my giving this in evidence, and that will be the first portion of the case. I shall next shew that the unfortunate man who met with his death was a man sworn in as a constable of Van Diemen’s Land, and that he had but just returned from a special mission in the country, when he received the fatal shot. I need scarcely inform you, that a constable of this colony is always on duty, and is compelled to act when called upon. I shall prove to you, by a body of evidence, that there was a certain hue and cry; and that, in consequence of that, the deceased, Peter Winstanley was called upon to act. The two constables whom I shall call before you, and who first attempted to take the prisoner, had been specially appointed to keep a strict watch in a particular locality of the town. On the evening of Tuesday the 29th August, the prisoner and another man appeared in that locality, and inquired of the constables for the house of a man named Pratt. This circumstance alone was sufficient to excite suspicion, as Pratt was known to be living in the house of the prisoner’s wife. One of the constables, also from previous knowledge of the features of the tall man, immediately knew him to be Martin Cash, who remained with one of the constables (Thomas), while the lesser man proceeded towards Mrs. Cash’s house, in the direction pointed out, followed by the other constable (Agar). The learned gentleman then proceeded to state other portions of the case, as will be found in the following evidence.

John Price, Esq., Police Magistrate, sworn. - I knew a person of the name of Peter Winstantly; he was constable in the Hobart Town police force, and was attached to that force. He acted as a constable since the 10th of April, 1843; he was a constable on the 29th August. He is now dead. I saw him last, alive, about one o’clock on the morning of Wednesday, the 30th August. I have seen his body since his death; it was at the Old Commodore, in Brisbane-street, on Friday last. At that time Dr. Crowther was making a post mortem examination. The deceased was sworn in as a constable by myself; he always answered by the name of Peter Winstanley. I know the prisoner at the bar; his name is Martin Cash. I have known him for the last 16 months. He was brought before me, as a prisoner of the crown illegally at large, and on suspicion of having committed felonies whilst an absconder.

The learned Judge did not see in what way this would be evidence; at all events, it appeared to be unnecessary.

The Attorney-General. - I was going on to shew that, as a runaway, 16 months ago, the prisoner had his original sentence of seven years, extended for two years to Port Arthur, as an absconder from a probation gang; and that, after again escaping from Port Arthur, rewards were offered for his apprehension, by authority of government. I propose to take this course to shew that the deceased was, as a constable, justified in endeavouring to secure the prisoner.

The Attorney-General. - Then I will put the question in another form. He then asked Mr. Price - “Have you any means of knowing that the prisoner was a runaway?”

The Judge. - Then you had better do so. [Mr. Price then retired, and, in a short time, returned.]

Examination of Mr. Price continued. - I produce the “Register” book of convicts who arrived in this colony. The book is kept by Mr. Emmett, the Chief Clerk, in the Muster-master’s Office. I cannot say that I exercise any control over the officers of that department; the office of Muster-master is a mere nominal appointment. There was no other prisoner of the name of Martin Cash, reported to be at large. [Hobart Town Gazette, 14th April, 1843, published by authority, was put into the hands of witness.]

The Judge said. - If you put that in to shew that the prisoner was proscribed by the government, you must prove that the Gazette was published by authority of the Government; and, even then, I do not see how you could make it evidence; proclamations are evidence at common law, but, before the court can receive them, their undoubted authenticity must be proved before the jury. The case is different here from the London Gazette, which is made evidence by Act of Parliament.

The Attorney-General. - I submit that the proof I now offer is good in law. My object is to shew that from the proclamations which had been issued in the official Gazette of this Colony, it was the bounden duty, not only of the deceased, who was a constable, but of every other person, to apprehend this man.

The Attorney-General. - Do you know Mr. Price, whether it was known to the police that warrants were out for the apprehension of Martin Cash.

The Attorney-General. - Have you, as a magistrate, issued warrants for the apprehension of the prisoner.

The learned Judge. - Before any answer is given to that question, you must produce the warrants, and ask him whether that was under his band and seal.

The Attorney-General. - Do you know whether printed proclamations, offering a reward for his apprehension, were posted in the public streets of Hobart Town.

The Judge. - The only way to prove that would be, to procure a copy of the proclamation, or placard, to which you refer. I do not think you can go on at present with the witness, but you may call another in the mean time.

Thomas Thomas, sworn. - I am a constable in the Hobart Town Police, and was on duty on the evening of the 29th August, in Murray-street, near the Blue Bells of Scotland, public-house; Robert Agar, another constable, was on duty with me at that time; about 20 minutes before nine I was concealed at the end of a house, standing with Agar; when I heard and saw two men coming up the street; one was a tall man, the other was a shortish man; they came within about two yards of where we were standing, and leaned against the wooden fence in front of the house; we then stepped out, and the short man spoke to Agar, but I did not hear exactly what he said; Agar, said - “Pratt; Pratt; no I don’t;” he then said to me “Do you know him?” I said no; Agar said to the short man, “what sort of a man is he; is he a short man, a carter?” the man said “yes;” Agar said, “I think you will find him at the first white house, a little on the other side of the creek, up an alley;” the man walked a short distance on the wrong side of the creek; Agar pointed out to him his mistake; and walked a few paces with him on the other side the creek; the short man turned round and said to the tall man, “Here, I want you;” the tall man remained standing near me; he was walking away when the short man called him back; he took no notice of the short man, but walked on towards Brisbane-street; he quickened his pace, and I went after him; at this time Agar came up to me; he had left the small man, and I do not know what became of him; the tall man then began to walk very fast, and we walked very fast also; he then turned off the foot-path into the road and began to run; myself and Agar ran after him, towards Brisbane-street; I then called out, and said, “Stop my man;” he turned round, and pointed a pistol at me, and fired; I had a pistol in my hand, and to the best of my belief we both fired at the same instant; the tall man then ran off; myself and Agar ran after him, crying out “Stop him, stop him;” he continued running, until he got to Brisbane-street; he then turned round again, and pointed another pistol at me; that was in Murray-street; he did not fire; but I pointed my pistol at him; he turned the corner, and ran down Brisbane-street; about half-way between Murray-street and Elizabeth-street, he fired again; but did not point the pistol either at me or a man who was running by my right hand side; at this time Agar was behind; but I cannot say how far; Agar, or some one behind, called out “Stop him; he’s a murderer;” I lost sight of the man at my right hand after the pistol was fired; the tall man ran on towards Elizabeth-street; I believe no one had joined in the pursuit up to that time; soon after another man came up, whom I believe to be Conliffe, who afterwards had his hand wounded. [Conliffe was here called in, and identified by the witness.] Conliffe, running by the side of me, asked me what the man had been doing of; Conliffe joined in the pursuit; I heard him call out “stop him” many times, still pursuing; I did not hear him call out any thing else; the man I was pursuing was still in sight; Conliffe outstripped me in running; I lost sight of the tall man for a few seconds between Argyle and Campbell-streets; when I got near the Old Commodore public-house, opposite the Trinity Church, I saw a person on the ground; it was the prisoner at the bar Martin Cash; I mean that the man who was on the ground was the same whom I had first spoken to in Murray-street; I had a good view of the face of the man in Murray-street; and when I saw him on the ground opposite the Trinity-Church, I again looked at his face, and knew him to be the same man; two men had him on the ground; I believe Conliffe to have been one; but I am not positive; I thought the man was in the act of getting upon his legs, and therefore I struck him on the head with a pistol, perhaps three or four times, and the pistol broke; I then seized him by the throat and kneeled upon him; when Agar came up, I said to Agar “Get the cuffs on as quick as possible;” I almost immediately heard a pistol go off; several people said, he has fire arms; we got him hand-cuffed, and took him to the Penitentiary, with the assistance of the people; we delivered him to Mr. Gunn as soon as he arrived; I saw him stripped and searched; I swear positively that the prisoner at the bar is the man who first accosted me and Agar in Murray-street; I know Mrs. Smith, but did not notice her at the time.

By the Judge. - Myself and Conliffe ran on, crying “Stop him, stop him;” he pointed a pistol, near Argyle-street, but did not fire it off; he pointed a pistol towards me and the other man (Conliffe) who was running; he did not fire it; but ran on again; Conliffe was very near him; I was about 20 yards behind; I had on a very heavy pea-coat; whilst in the act of throwing it off I heard a pistol fired; I only called out “Stop him, stop him;” but I will swear I heard some person call out “Stop him, it’s Cash,” after we had crossed Elizabeth-street, and before I got into Argyle-street; it was after I had spoken to Conliffe; I heard it between Elizabeth &Argyle and Argyle and Campbell-streets; it was before I heard the pistol fired off, and after as well; I heard the cry at the time I was taking off my pea-coat; there were four or five persons in pursuit; they called out aloud; I believe, I heard the name of Cash called out both before me and behind me; this was before I heard the pistol fired off.

Cross-examined by Mr. Macdowell. - I did not speak to the man at all; it was not very dark, and it was not a light night; the distance in running in Murray-street was six or seven hundred yards; I was following him, anxious to apprehend him, and he anxious to get away; he never attempted to interfere with me; I found him on the ground opposite the Old Commodore.

Mr. Macdowell. - You have said that you believe you heard the name of Cash called out both before and behind you; now, are you positive as to that fact?

By the Judge. - Both alongside of me, and behind, and before me, people called -out “It’s Cash the bushranger;” I knew it was him in Murray-street, both from the description I had heard of him, and from information received from Agar; Agar said to me, “This is the man we want;” I understood by that Martin Cash; we were on the look-out for him and Jones, and stationed there for that purpose; I ran after him to take him into custody because he was an absentee, and for committing robberies; I was instructed by my superior officers to take him on that charge; I received orders from Mr. Symonds, senior district-constable, to take him as a thief and runaway absentee.

Robert Agar, sworn. - I am a constable; I was stationed with Thomas, the last witness, to watch for certain parties in Harrington-street; the prisoner at the bar, Martin Cash, was one; I was not personally acquainted with him; but I had seen him before and knew his features; George Jones was the other man we were directed to look for; I did not know Jones, but the man who was with Cash answered the description; I know where a person of the name of Pratt lives; when the prisoner and the other man came up we were about 60 or 70 yards from Pratt’s house; I know a person who goes by the name of Mrs. Cash; she lives between Harrington-street and Murray-street, in a narrow lane; I believe Pratt and Mrs. Cash live together in the same house; when they came up, the shorter man asked me if I knew a person of the name of Pratt; he was close by the tall man at that time, and within three or four feet of constable Thomas; when they asked where Pratt lived, I recognized Cash almost at that instant; I said to Thomas “that is the party we want;” meaning the party we were looking out for that night; he ran a few steps and fired at Thomas; lost sight of the prisoner at the rise of the hill after passing Elizabeth-street; he was out of my sight but a very few seconds; I saw the flash and heard the report of fire-arms, apparently opposite the Old Commodore; I cannot say the pistol was fired by the man of whom we had been in pursuit; there were two or three persons standing within a very few feet; one of the persons was a female; when I came up Thomas was upon the prisoner; I tried to secure his hands; and in struggling to get the pistol I now produce [pistol exhibited] from his hands, it went off, and some one behind me exclaimed, “Oh my God!” I knew a person of the name of Peter Winstanley; but he was not standing near at the time the pistol went off; I never lost sight of Cash until he was in the Penitentiary.

By the Judge. - I called out “stop him” all the way along; I did not observe Thomas taking off his coat; when I pursued the man many people joined; I know this particular man to be an absentee from information received from district constable Symmonds; I had also seen bills, offering a reward for his apprehension, both in this town and up the country; I had heard many things against him; people might have called out many things besides “stop him.”

Cross examined by Mr. Macdowell. - The only person I saw at the moment when the man was down was Thomas; I do not remember seeing Conliffe or Parkinson that night; I saw Macdonald in the Penitentiary; Thomas was up before me, I could not keep up with him; I have heard that he stopped to strip his coat off; when I saw the flash of a pistol, Thomas was running, in sight of me; he had then crossed Argyle-street, but I had not; it may be 130 yards from Argyle-street to Campbell-street; I was not observing Thomas at the time I saw the flash; I observed him soon after, kneeling on the prisoner.

By the Judge. - When I saw the flash I did not know where Thomas was; I had seen him a short time before, running after the man, I had not passed Argyle-street; whether Thomas had crossed Argyle-street or not when the flash took place I do not know.

John Macdonald, sworn. - This witness repeated his former evidence, as to hearing the report of fire-arms, and leaving his house to ascertain the cause. He said, I saw a man running, and on perceiving me, he cried out, “They want to rob me; they want to rob me.” Before that I heard cries of “stop him, stop him.” I will swear that the prisoner at the bar is the man I saw running. When I went across the road, he immediately answered, “Dare to stop me, and you’re a dead man.” Conliffe was running in the same direction as Cash. When he was passing, I distinctly heard some person cry out, “stop him; he’s a murderer.” I threw off my coat and went after him. When opposite Roxburgh House, he turned round, and snapped a pistol at me. I had seen Conliffe before this, but I cannot swear how far he was off. I heard Conliffe’s voice, and think he was on the left of the prisoner. Conliffe and a number of other people were following, calling out “stop him.” I saw a person come from the Old Commodore, and extend his arms to grasp him; instantly I saw a flash and heard the report of a pistol, the man staggered towards the Old Commodore, exclaiming, “My God! I’m shot!” The prisoner is the man who fired; I saw no persons standing around; I was on his right hand side, I heard the words “stop him; he’s a murderer,” proceed from Murray-street; I did not hear those words used near the Old Commodore. After the discharge of the pistol, Conliffe and myself rushed upon him, and threw him on the ground. I seized his right hand, and placed my knee upon his breast. He made an attempt to bite me, and I let loose of his hand. The constable (Thomas) came up while the prisoner was on the ground. From seeing the prisoner I never lost sight of him until he was lodged in the penitentiary. A pistol went off when the man was on the ground. Four or five minutes might elapse between the first and second shots.

By Mr Macdowell. - Not a single person was present but myself and Conliffe when the man was thrown on the ground. I was between two and three yards off; Conliffe was on the left of me. All that I called out, or heard called out, was “stop him, stop him.”

Charles Conliffe sworn. - I reside in Murray-street; I was at home on Tuesday the 29th of August, and heard the report of a gun about nine in the evening. I ran out, and saw a man coming towards me. I asked, “What’s the matter;” he presented something, which I took to be a pistol, and ran on. I heard some persons call out “stop him, stop thief; it’s Cash,” or words to that effect. I heard but one voice. He then turned into Brisbane-street; I followed him. I also halloed out, “stop thief; it’s Cash the bushranger.” Several people ran out opposite Roxburgh House, and he turned round, and again extended his arm. At this time I passed him on the opposite side of the road, at the junction of Elizabeth and Brisbane-streets, and leaned down in the hope of catching him if he should turn in that direction. Opposite the Independent Chapel, he turned round and presented at me again. I still followed, and seeing some persons coming on, I called out, as loud as I could, “stop him; it’s Cash the bushranger;” I called out loud enough to be heard at the distance of a quarter of a mile; I called out, “it’s Cash the bushranger;” this would be about 200 yards from the Old Commodore. The people to whom I called, turned round to the other side of the street, and let him pass. As I ran by, I said, “you cowardly rascals, why did not you stop him; it’s Cash the bushranger.” I still pursued him, just opposite the York Tavern, I halloed “stop thief, stop him;” but I do not think I then said “It’s Cash.” I know a man named Macdonald; he might be running on the foot-path, but I was in the middle of the road; it was very dark. I saw a man running across the road from the Old Commodore, as if with the intention of stopping the man pursued. Immediately I heard a loud report, and saw a flash between the man who was running, and the person, who opposed his progress; the man said, “I’m shot!” The men were very close together; but I cannot swear positively whether the deceased got hold of him or not. They staggered together towards the Old Commodore, until they got to the footpath. The prisoner then made another attempt to get away, but I collared him, saying; “You murdering rascal, do you know what you’ve done?” and threw him down. Macdonald seized him about the same time, and fell on the top of him when I threw him down. Several other persons came up; at this time I had one hand on his throat and another on his breast. At the time I called out, “stop him, it’s Cash the bushranger.” I do not think persons could have heard in the bar of the Old Commodore; but they must have heard when I said “stop him, stop thief,” when opposite the York Tavern, 80 or 100 yards off. I might have been heard a quarter of a mile in the street, when I said “it’s Cash the bushranger;” but I did not mean inside a house. When Cash was on the ground, he put his hand into his bosom, and I thought he was getting a knife. Almost immediately a pistol went off, as I think accidentally, whilst some persons were endeavouring to get it from the prisoner; the shot went through my fingers, and wounded another man in the nose.

Patrick Parkinson sworn. - I reside in Argyle-street, and knew a man of the name of Peter Winstanley many years. This witness corroborated his former testimony of having seen the prisoner running with something in his hand, which he thought, at the time, was a constable’s staff; of having seen a man run across the road, (whom he afterwards knew to be Peter Winstanley,) run across the road opposite the Commodore and of the prisoner having instantly fired a shot. He also described the part he took in the capture, by seizing Cash by the throat.

Mary Ann Smith, (landlady of the Commodore) repeated her statement made before the Coroner, as to the circumstances under which she went out, on the night of the murder. The door of her bar fronts the street; it was wide open; Peter Winstanley was standing at the bar. I went out and hearing a number of persons running down the street, calling out “stop that man;” I called Peter out; I said, “Peter come out; here’s a man being robbing, and you had better come and stop him.” Winstanley came to the middle of the road; he said nothing, but spread out his arms; the man whom he was endeavouring to stop immediately drew something from a part of his dress, and fired; I saw the flash, and heard the report. He stood for a second, and exclaimed “I’m shot.” With the assistance of my son I got him into my house. The nearest man in pursuit, when Winstanley was shot, was 12 or 14 yards off.

Cross-examined by Mr. Macdowell -I went out first, Winstanley next, and my son followed immediately.

By the Judge. - To the best of my recollection no person was in the bar when I called Winstanley out. He was just going away, and within a yard from the door. I was within four or five yards. I do not know whether he heard a noise in the street. He was sensible up to 20 minutes before his death.

The Judge. - I really never recollect such a case as this. Here it is proved that the unfortunate deceased was perfectly conscious, up to within 20 minutes of his death, and yet no deposition was taken of the dying man, either by the Coroner or the Magistrates, which, every one must be aware, would have been of the highest importance. If any such statement was taken, at least none has been sent to me.

The Attorney-General. - Your Honor will find, before I close my case, that a declaration, sufficient for all the purposes of inquiry, was made by the deceased; and the reason why the magistrates did not take it in a more formal manner, was because they were restrained from doing so, by the advice of the medical gentlemen in attendance.

The Judge. - The communication, or declaration of the deceased, if any such was made, does not at all appear on the face of the deposition. A great deal of matter was taken at the inquest which is not evidence at all; and here is a most important circumstance altogether omitted. I shall not interrupt the proceedings now; but take another opportunity of adverting to the subject.

Ebenezer Smith sworn. - This intelligent witness repeated the evidence he gave on the Coroner’s inquisition, with great clearness. He stated that, when his mother went to the door, she called out to Winstanley, who was standing just within the front door, close by the bar. “Peter, come out; here’s a man been robbing somebody, or killing his wife.” Mr. Smith distinctly swore to the man who was being pursued having fired the fatal shot; and to his having distinctly seen the pistol, which was what is called a horse pistol, in the prisoner’s hands, by the flash. He assisted to get the man into his mother’s house, who fell immediately he was inside the door.

The Attorney General said, he should now call the Government Printer to prove that the Gazette, containing proclamations regarding the prisoner, is printed by authority of the government.

James Barnard sworn. - I am Government Printer of the Colony, by appointment of the Secretary of State. In that capacity, and by the same authority, I am printer of the official publication called the Hobart Town Gazette. The copy now produced was printed by me, by authority of the Governor of the Colony.

The Judge. - Really, Mr. Attorney-General this seems to me not to be evidence. I do not see the use of it in any way. Do you attempt to introduce it to shew that the deceased was endeavouring to seize the prisoner from any announcement which he had seen in that publication; or that it was in consequence of that, the constables who first recognised the prisoner made a hue-and-cry. I do not see that it bears upon either point; the case before the jury and the court rests upon entirely different grounds; the constables raised the hue-and-cry from suspicions raised in their minds, owing to certain circumstances which had been deposed to; and to one of them, at least, having some recollection of the prisoner’s features.

The Attorney General (after some discussion) recalled constable Thomas Thomas, and placed in his hands a placard, in which the name of Martin Cash was mentioned, offering a reward for his apprehension by government.

Constable Thomas, in reply to a question from the Attorney General, said, I have seen placards at the Police-office and the watch-house in Hobart Town; also on the walls of the streets, and in different parts of the country.

The Judge. - It is necessary to produce some particular publication which the witness has seen.

The Attorney General then directed the witness to go out and produce some identical placard which he had actually perused.

The witness did so, and returned in a short time. He was again examined, but the document was not permitted to be given in evidence for want of proof of publication.

Mr. Macdowell said, since the witness had been recalled, he would take the opportunity of putting to him a question. The counsel then asked him; - What answer did you make to Agar, when he observed to you “this is the man we want.”

Witness. - I wanted to say as little as possible; I believe my reply was “Yes”; I might have said “Do you think so;” but I do not remember that I did.

[We may here state, that our narrative of this extraordinary trial may be as connected as possible, that at a subsequent part of the proceedings, Mr. Brady (deposition clerk at the Police Office) was called into the box, and produced a book, called “The Record Book,” in which was an entry, in his own hand-writing, of two years’ extension of the original sentence of seven years, on the prisoner having been summarily convicted, before Mr. Price and Mr. Gunn, on the second of June, 1842, as an absconded offender. The judge, for the reasons he had already given, did not think this evidence necessary; and, after some discussion, and the citation of several cases from the books, the Attorney General did not persist in giving the “Record” of the conviction in evidence.]

Dr. Crowther, sworn. - I was called in on the evening of Tuesday, the 29th August. I saw the deceased, lying on the bar floor of the Old Commodore public house, in a state of collapse. He had a wound on the left breast between the nipple and the clavicle of the collar-bone, apparently mortal. I remained 20 minutes, and saw him again about half an hour after. He was then sensible. Some conversation arose in reference to the wound; as to the nature of it and the probable result, he said, repeatedly “I am dying; it is hard to be killed by such a rascal.” He was then perfectly collected; this was between eleven at night and two in the morning. I advised him to prepare for an event which probably would take place in a short space of time. He made no answer, but closed his eyes and kept groaning, getting weaker. Nothing fell from him expressive of the slightest hope in his own mind of his recovery. He told me, that on hearing the landlady call out, “Peter, there’s a thief or a robber,” he went out into the road, and saw a man running down the street. He raised his arm, attempting to stop him, and instantly received a shot. He exclaimed immediately “the rascal has shot me.” He then left the man that shot him, and was assisted into the house. He said, during the interview spoken of “who could have suspected the man would have been armed.” He died, on the Thursday morning, about 11 o’clock from the effects of the wound. There cannot be a doubt as to the cause. [The witness in giving his testimony, described the nature of the injuries, and produced a ball extracted from the body of deceased.]

Cross-examined by Mr. Macdowell. - The ball was not extracted until after death; to have extracted it during life would have been highly indiscreet.

Dr. Officer, sworn. - This gentleman, who had assisted the last witness in making a post mortem examination, expressed his concurrence in the opinion of Dr. Crowther; that, in this case, the bullet wound was decidedly the cause of death.

Cross-examined by Mr. Macdowell. - It would not have been beneficial, but injurious to the deceased, to have extracted the ball during life. It might be proper, improper, or immaterial to extract a ball according to circumstances.

By the Judge. - In this case it would have been highly improper, as, from the exhausted state of the patient, the slightest irritation might have caused instant death.

“I submit to your Honor that, upon the evidence adduced and upon this information, there is no case to go to the jury; the charge - and the only charge - against the prisoner, being that of WILFUL MURDER. I admit that the evidence shews the deceased met his death by an act of the prisoner at the bar; but, there is not a tittle of evidence to shew that, in causing the death of Winstanley, the prisoner was actuated by what, in law, is called, malice prepense; for, it is evident he did not know the deceased, who, without any legal authority to act, interrupted the prisoner in his progress down the street. The original attempt of the constables Thomas and Agar, to apprehend the prisoner, is a question altogether beside, and independent of, the part which the deceased, Winstanley, took in the transactions of that evening. If those men had reasonable cause to believe that the prisoner was a transported offender, illegally at large, will it be attempted to show, after the evidence which has been given in court to-day, that Winstanley could entertain any such suspicion? It must be remembered that constable Agar, at the time when the transaction occurred, was at a considerable distance, and Thomas at some distance. It is said that a hue-and-cry was raised; but there is no such thing now, as “hue-and-cry” known to the law. The statutes, which protected persons joining in the hue-and-cry, without warrant or authority, are repealed, except as regards the simple offence - and it is a simple one - of angling in preserved rivers in the day time. Here it is in evidence that, from the loud out-cry of the constables, some persons ran after the man but that, in law, was not a hue-and-cry. And, even, when the statutes of hue-and-cry were in force, it was necessary that the constables should be armed with an especial warrant. Under such circumstances, if, in the pursuit of A. or B., C. or D. joining in the hue-and-cry met with his death, then I admit it would have been murder. Here, it is not pretended that there was any specific warrant held by either of the constables to apprehend the prisoner; and certainly they had not seen any offence committed by him. [Here the learned Council cited Blackstone, in reference to the 4th and 5th William and Mary, and Edward I, chapter 1, sect 4, to show that the hue-and-cry, according to the laws, then in force must be made from town to town; but that these statutes were repealed by the 7th and 8th George IV.”

The learned Judge explained that the laws relating to hue-and-cry were only repealed in certain cases, which he enumerated; hue-and-cry was still applicable in such a case as the one before the court.

“Mr Macowell. - Well, your honour, I will take it on that ground; and, even supposing this to have been, in law, a hue-and-cry, I submit that there is not a particle of evidence to show that it every reached the deceased. On the contrary, the unfortunate man did not go out from any thing he heard himself of the case of the prisoner in the street, but only on the instigation of Mrs. Smith. Then there is what has been called the dying statement of the man himself, that he was not aware that the man he went out to interrupt was the prisoner at the bar; for Dr. Crowther, in reply to a question nearly at the close of his evidence, let out this important fact - Winstanley said, “who would have supposed the man would have been armed?” I submit that, whatever this offence is - whatever it may amount to in the eye of the law - it unquestionably is not murder. No one can regret more sincerely than myself the lamentable consequences that ensued; but, I am bound to say that the deceased having interfered in the matter without legal authority, he was answerable for the consequences. I submit that there is no case to go the jury on this information.”

The learned Judge did not concur in the view taken by the learned Counsel; and could not allow it to go forth for a moment that a constable, in the exercise of his duty, was not to have those safeguards thrown around him which the law has provided for his protection, simply because the learned Council had asserted that the statutes regarding hue-and-cry were repealed. For many purposes they were still in force - and as it appeared to him at present - this was one.

The Attorney General contended that the statutes of hue-and-cry were merely in aid of the common law; and by that law, the deceased, being called upon to interfere, was bound to interpose when there was a loud out-cry in the street, if it was only to protect the person pursued from the violence of the people who followed in the hue-and-cry - for such he would still call it. If the man was innocent, he would thus receive protection until his character could be cleared from suspicion.

The learned Judge, (after conferring with J. Hone, Esq.) said he was very happy to have the concurrence of the Chairman of Quarter Sessions, in the view he had taken of the case. His Honor laid down the law, and said he would put the question to the jury, at the proper time, to say, whether they thought the deceased was justified in interfering. If satisfied of that, he should call upon them for a verdict; but if they were not satisfied he would reserve the point.

Mr. Macdowell then commenced his address to the jury upon the evidence, but from ill state of health, evidently labouring under exhaustion, and on the suggestion of the learned Judge, the trial was adjourned, until the following morning, at ten o’clock.

The Jury, under the charge of the Under-Sheriff and the Javelin men of the Court (after the necessary oaths had been administered), were allowed to retire to a room at the Macquarie Hotel, and to be supplied with cancel-light and necessary refreshments.

A dense crowd assembled in front of the goal, to get a view of the prisoner as he was removed across Murray-street to the goal. The greatest order prevailed.

The jury came from their night’s lodging at the “Macquarie Hotel,” in charge of the officers of the Court, a little before ten o’clock, and occupied their respective places in the jury box. The learned Judge took his seat on the bench precisely at ten, when the names of the jurors were called over by the officer of the Court.

His Honor said, after looking over his notes since the adjournment yesterday evening he thought it right to inform the prisoner’s counsel (Mr. Macdowell) that in charging the jury, he should put to them several questions. The learned counsel had quoted an authority to shew that there was no hue-and-cry in this colony; and had said there was no evidence to shew that Winstanley knew the man he was attempting to arrest to be Cash.

Mr. Macdowell. - I intend to put it to the jury that the deceased could not act until he had shown the prisoner his authority to do so.

The Judge. - That would have been impossible in a case like the present, the entire transaction was too sudden to admit of the deceased making any communication on the subject. His Honor then stated the points as follows:-

1.If guilty, whether you think that Winstanley, at the time he went into the street, had reasonable cause to suspect that the prisoner had committed a felony, or other offence, for which he might be apprehended.

2. Whether you think that, at the time, Peter Winstanley had reasonable cause to believe that the person he attempted to arrest was an absconded offender, or a convicted offender illegally at large.

3. Do you think that the constables Agar and Thomas had reasonable ground to suspect or believe that the prisoner at the bar was an absentee, or an absconder.

4. Do you think the prisoner unlawfully discharged a loaded pistol at the constables in Murray-street, and if so at which of them?

5. Whether you think at the time Martin Cash fired at Winstanley, he did intend to murder him or do him some grievous bodily harm.

The Attorney General perfectly coincided with his Honor and with submission would request that an additional question might be put on the charge to the jury:- Whether it was necessary for the prisoner to fire in defence of his life; whether he retreated as far as he could; and in fact, whether any thing was done to the prisoner by the deceased, to justify the use of fire-arms.” The learned gentleman supported his position by citations from Earle’s Pleas of the Crown, under the head “homicide in defence;” also from Hawkin’s Pleas of the Crown; Compton and East; Blackstone’s Commentaries, and other high authorities, to shew that, where one man uses a deadly weapon, without sufficient provocation and kills another, he is guilty of murder.

Mr. Macdowell then rose to address the jury on the evidence. He said - I appear before you as the advocate of the prisoner at the bar, the charge against whom is that of “wilful murder.” The crime of murder consists in one man taking away the life of another; but to constitute the offence, life must have been taken away deliberately; or, in the language of the law, with malice aforethought. You, who have attended with the liveliest interest and anxiety to the evidence during the progress of this most important trial - important to the interests of society, and to the prisoner at the bar - you, I say, who have paid such close attention to all that you have heard in Court, will fail to discover in the conduct of the prisoner at the bar, that malice aforethought which, to constitute the crime of murder, the law requires. In what part of the testimony can be found that deliberate and resolved intention on the part of the prisoner to injure the deceased? There is something about the crime of murder shocking to reflect upon - it is foul, an unnatural proceeding. But how stands the case here? Here is a person who, to use the language of the Attorney General, was a man proscribed by Government; and whose only offence on the present occasion - before he met with the deceased at least - was that of seeking to free himself in order to obtain his emancipation, and escape from a crowd of persons who were in pursuit for the purpose of apprehending him. Why, neither the prisoner or the deceased, so far as we know, had ever before seen each other, and it does seem to be as different a case from murder - from murder with malice aforethought - as any two things can possibly be. In the one case you have the assassin selecting his prey, and laying in wait for the vile purpose of compassing his death; on the other hand, you have a man who, having committed no offence in the town, was hunted through the streets, and accidentally comes in contact with the deceased. I have said that he had committed no offence, for although you have been told that constable Thomas and the prisoner exchanged shots in Murray-street, soon after they first me, yet it is impossible to say whether Thomas or the constable at the bar fired first. Constable Agar has told you that the pistols were fired at the same instant; and on another occasion he has said that the discharges were so nearly together that they seemd like one report. Thomas, if true, states that the prisoner first fired at him; but from Agar’s evidence, who was present, and the more likely to have his senses about him, that question is at least extremely doubtful, the benefit of which, I have no doubt, you, as in duty bound, will give to the prisoner. Now, I again submit to you that there is an immeasurable distance between a case such as this, as such an one as I have described as constituting the crime of murder. Some of the witnesses - and some of them only - have said, that the prisoner fired off a second pistol soon after turning into Brisbane-street; but this was not pointed at any person, but fired into the air. It is said again, by some of the witnesses, that, during the chase, the man presented something at them; but there is no evidence to shew that it was a pistol; it might have been his finger, or not. It is in evidence also, that he told another man that, if he did not stand out of his way, he would be a dead man. But no pistol was seen; and although you may be of opinion that the prisoner was not justified in using such a threat; I have a case which I hope will satisfy his Honor. The attempt to apprehend the prisoner was not justifiable, unless he was made acquainted with Winstanley’s authority. But it is even not pretended that the prisoner was made aware that he was a constable. Far be it from me to weaken whatever protection that the law, for wise purposes, may have thrown around constables in the performance of their duties. But, the outcry raised against this man was not, in law, a hue-and-cry. When a constable sees a delinquent in the act of committing an offence, or apprehends that he has committed some crime, and in pursuit calls upon other parties to assist him in apprehending the offender, and death should ensue to some of those parties from the hand of the person pursued, the party causing it would be responsible, although it should afterwards turn out that no felony had been committed. But, such is not the case with this man. After they had called out to those in the neighbourhood, Mrs. Smith, sitting quietly in her own house, goes into the street, and calls out the deceased, to come and take some man who was running away; and I put it to you, under correction of his Honor, that the prisoner at the bar cannot be held responsible for the death of Peter Winstanley, unless he had some notice of the authority by which Winstanley acted. [The learned gentleman, in support of his view of the case, quoted from Forster’s Crown Law, second discourse, Homicide, p S10]

The Judge said. - This was a very different case to the one referred to. By the common law, if a constable, during a tumult, even held up his staff, that was an indication for the parties present to keep the peace; but here there was no tumult, no riot.

Mr. Macdowell. - Here the deceased interrupts a man passing along the street; and nothing can be more clear than that he ought to have had some authority to do so. I will venture to say, that the right of a private individual so to interfere with another, even though there might have been a loud outcry, is by no means a clear or settled question.

The Judge. - The law is this; if a man apprehends another without just cause, the remedy is by indictment.

Mr. Macdowell. - According to the evidence, the prisoner was seen presenting; what appeared to one man, to be a pistol; but it must be borne in mind that, with the exception of a pistol taken from him when on the ground, there was not found in his possession a single implement; nor was there any evidence to show that the prisoner had a pistol in his possession at the time Winstanley was shot.

The Judge reminded the learned Counsel that Mr. Smith had distinctly sworn he saw the pistol in the prisoner’s hand by the flash, and that it was a large pistol.

After some comments upon this part of the case the learned counsel said he had done his duty; he had undertaken the defence of the prisoner with great reluctance, and only on the unfortunate man’s assurance that, otherwise, he would make no defence. He thought that if he could afford to him, and to the administration of justice, any assistance, he was bound to make an effort to do so. That duty he had now performed, so far as his physical capacity would admit; and have adduced such observations as, I trust, will induce you to give such a verdict as may be satisfactory alike to the crown and the public.

The learned Judge delivered a most able charge, and went carefully through the evidence - again calling their attention to the questions which he had put, and on which on giving their verdict, he required their opinion.

The jury retired for about a quarter of an hour, and returned a general verdict of GUILTY; with their opinion as follows on the questions submitted to them:-

No. 1 We believe that Winstanley had reasonable ground to suspect that the prisoner had committed a felony.

2. We think Winstanley had no reason to believe the prisoner to be an absconded offender.

3. We are of opinion that Agar and Thomas had reasonable ground to believe that the prisoner was an absconded offender.

4. We believe that the prisoner fired at Constable Thomas, (in Murray-street), with intent to murder him, or do him some grievous bodily harm.

The learned Judge addressed the prisoner in very feeling terms, and in informing him that he would now remand him, to give time to consider the points of law, which had been raised by his counsel - who had kindly undertaken his defence, when in a state of extreme ill health - begged him to consider that there was not the slightest shadow of a shade of hope that the extreme sentence of the law would not be carried into effect, and that speedily.

The prisoner then said, I have always been against taking away the life of a man; I would do anything rather than wilfully do that. I never acted like a coward, or in an unmanly way. I have saved lives myself in the bush; I have been the man to stop murder, and prevent it. When we got into the bush we acted like men to every one. When we went anywhere, and got possession of a house, we were satisfied to take such things as we wanted, without committing violence to either man or woman. I hope you will not think or consider that I am able to do any cowardly or deliberate murder. Let me get into ever such close quarters, if I should have to fire I would not try to kill a man, but to cripple him so that I could get away. If I had been a man to do violence, there would have been a deal of murders committed since I have been in the bush.

The Judge. - I do not doubt that you have throughout endeavoured to avoid shedding blood, except in the recent unfortunate case for which you now stand at that bar. Still I can hold out to you no hope.

The prisoner. - I beg your Honor’s pardon - I do not beg for my life; I do not value it one straw.

We have spared neither exertion or expense in supplying to our readers of the Advertiser as full reports of all matters of interest during the late sittings of the Supreme Court, as our space would possibly admit. But, we were necessarily compelled to defer several matters, incidental to the proceedings, and which could be omitted in the trials without prejudice to the main facts. Some of these omissions, we now proceed to supply:

We would have wished to have given, in full, the luminous charge to the jury of the Learned Judge, on summing up the evidence in the case of Martin Cash, for “wilful murder.” - This, from its extreme length, and its delivery only a few hours before our paper went to press, was impossible. One or two of his Honor’s observations are, however, worth preserving. In speaking of the evidence of Charles Conliffe, the Learned Judge observed that he seemed to have acted, throughout - from his first commencement of the chase at his own door in Murray-street, to the final capture of Cash after the discharge of the fatal shot, with undoubted courage, admirable coolness, and the greatest presence of mind. But for him it was not improbable that the prisoner would have escaped. He had performed his duty, most gallantly and effectively, to his Sovereign and to the colony, at the risk - the imminent risk - of his own life; and his country and his Queen were very much indebted to him for his conduct on the occasion. It was undoubtedly the duty of every good subject to apprehend a person of whom peace officers were in pursuit; and he (the Learned Judge) wished it was possible to discover the parties who, when Conliffe, being the swiftest runner of those in pursuit, called out, opposite the Independent Chapel, that the fugitive was Cash; and who stepped out of the way to let him pass. Had that party done his duty, probably Winstanley would not have met with his death. Conliffe according to his evidence, called them “cowardly rascals.” That was a strong expression; but, looking at all the circumstances, not stronger than was warranted. He regretted sincerely that the parties were unknown; for otherwise they would be apprehended and prosecuted. Conliffe, as he had said, was risking his life and discharging his duty to the public and the Queen; and “cowardice,” on the part of those whose assistance he implored would not justify a breach of duty; - for it was the imperative duty of every man, when called upon to do so, to use his best endeavours to secure an offender against the laws.

Our report of the trial of Kavenagh, was necessarily brief, from the late hour at which it terminated on the eve of our going to press; and so; in fact, was the trial itself. Our notice embraced all the main facts, and we now fulfil our promise of giving, at length, the prisoners address to the jury, not, as will be perceived, in extenuation of the offence with which he was charged, but free himself from any imputation of having committed violence, which, in his estimation, the wording of the information seemed to convey. -

He said. - All I have to say in my defence is this, and it shall be the truth. I have experienced a good many scenes of misery in my time, and have had hard usage from the world; but what I saw and experienced at Port Arthur, beats all. There men are treated worse than dogs; and there it is almost impossible to live. Amongst the unendurable sufferings I experienced at Port Arthur; there is one circumstance that I feel bound to mention; I was driven to a place which was not of my own religion, under the lash; my own prayer-book was taken out of my hand by the superintendent; and I was forbidden to read it under pain of severe punishment. I do not blame the superintendent; it was not his fault; but I put it to any conscientious Protestant whether he would not feel indignant at being so driven to a Catholic place of worship. All men are not of the same mind, nor can they be of the same faith. At Port Arthur there are some men who forget the day they have been men. I flew from Port Arthur upon this account, at the hazard of my life; I am now about to forfeit it. While I was in the bush, I always thought that I would rather be shot than fall into the hands of Government; but I fell into a mistake, for since I have been in custody I have been treated very kindly, and I am very much obliged to the gentlemen for their kindness and attention. I did not think such would be their treatment; if it had always been so, I should not have run away.

The prisoner, who delivered the last sentence under evident feelings of emotion, here paused.

The learned Judge, under an impression that the prisoner had concluded his observations, inquired whether he wished it to be understood that he had given himself up to the Government in the expectation of a merciful consideration of his case.

The Prisoner. - No; I knew when I was in the bush, and under arms, that I could expect no mercy, should I ever be placed at this bar, nor do I ask for it now. I did not surrender through any expectation of that kind; but, whilst I was in the bush, I committed no act of violence or cruelty, and did nothing but what became a man; never offering insult to the female sex. I did not surrender through any expectation of mercy, but through a feeling which I had in my own breast, having met with an accident. Both myself, and my unfortunate companion (Cash), always abstained from shedding blood; and if he has taken away life now, it was not premeditated; but if I have been unfortunate, and done wrong, and thanks to God, I have no stains of blood on my hands. The thought of standing at this bar was not the impulse that kept me from committing violence, but the feelings of a man. I would have pleaded guilty to this charge, only I was accused of having used violence, and violence to any one I never resorted to; but if I came against any unarmed men, I stood before them in the best way I could; I kept by my companions, and stood my ground. But, as to using violence against an unarmed man, or an unarmed party, I could not be guilty of so cowardly an act - it was never in me. I have nothing more to say; I have no witnesses.

Martin Cash, and Lawrence Kavenagh, the daring and desperate Brigands of the Bush, have been doomed to expiate - so far as the sacrifice of their lives on the scaffold can effect it - those countless offences against law and order, and against society, amounting to a tragical romance in real life of which they have been guilty.

Long before twelve o’clock, (the period for opening the Court), a dense assembly had collected, completely blocking-up the space between the goal and the hall of Justice. This vast concourse did not consist of a mere mob of the dregs of society - such as we have witnessed on similar occasions in London and Assize Towns in England - but principally of respectable citizens, who could not resist the desire, arising from a morbid feeling we admit, to witness the last exhibition (but one) of these reckless and notorious criminals.

On the doors being opened, the rush was tremendous to gain admittance to the Court, which was instantly crowded almost to suffocation.

His Honor, Justice Montagu, who presided during the trial of the prisoners, took his seat on the bench precisely at the appointed time. We observed on the bench with him, J. E. Bicheno, Esq., Colonial Secretary; J. Burnett, Esq., Sheriff of V.D. Land; and Joseph Hone, Esq., Master of the Court. The bar and the seats around, were occupied by gentlemen who have obtained early admission.

Martin Cash and Lawrence Kavenagh, were then placed in the dock. They were dressed as we described them on their respective trials - Cash, in the costume of a sailor, and Kavenagh (who had his arm in a sling), had on a green great coat.

They were severally asked, by the officer of the Court, if they had any thing to say why sentence of death should not be pronounced against them according to the law. Neither of them made any reply.

Cash, with his arms folded, stood unabashed, looking towards the judge; Kavenagh bent his head, looking down, but seemed anxiously listening. This demeanour they both preserved, during the address of the learned Judge, which was necessarily much prolonged by the occasional interruptions and observations of Cash. His Honor first addressed this criminal, in substance as follows:-

Martin Cash. - You have been convicted of the crime of wilful murder, but, as you must have observed, I have taken some time to consider whether in consequence of the points mooted by the learned gentleman who defended you, there could be any mitigation of the extreme sentence of the law in your case. I have anxiously, and with the utmost possible pains, taken into consideration those points of law, and I cannot but come to the conclusion that your crime was one of wilful and deliberate murder. The main questions, as you are aware, was, whether the constable, under the peculiar circumstances of the case, was invested with sufficient legal power or authority to act. This was purely a question of law, and, after the most careful consideration, I cannot doubt but that the poor man whom you murdered, was in the strict performance of an imperative duty. The jury, also, after due deliberation, came to the same opinion; for they found that the deceased, Peter Winstanley, had, as far as you are concerned, reasonable ground for believing that you had committed a felony. They further were of opinion that you discharged the pistol with intent to murder the deceased, or do him some grievous bodily harm. In the finding of the jury I entirely concur. The jury also found that the two constables (Thomas and Agar), had reasonable grounds to suspect you to be an absconded offender illegally at large. In this, on a very careful re-perusal and consideration of the evidence, I also most completely coincide; and also that on finding that the constables had recognized you to be an absconded offender, you deliberately shot at Thomas with intent to murder him, or do him some grievous bodily harm. These being the facts, the constables were not only justified in chasing you, and giving an alarm as they ran after you in the streets, but it was their bounden duty which, had they neglected to fulfil, would have rendered them liable to be indicted and punished. And, not only was it their duty, but imperative on every one else, to assist them in your apprehension. The constables, from the very first, knew you to be Cash, the bushranger, for whom they had long been on the lookout. They knew you to be a man who had committed numerous offences, and they had authority to apprehend you as a robber and a thief. They raised the cry of “stop thief” and it was equally the duty of the unfortunate deceased to endeavour to apprehend you, either on hearing the alarm given, or being informed of it by others. Had he not done so, he was equally as liable to have been indicted for gross neglect of duty as a constable, as Thomas and Agar would have been. It has been proved, in this court, that you was a transported offender, endeavouring to escape from justice, and every person in the island had authority to apprehend you. When the constable made the attempt to arrest you, it was your duty to submit to him, and not, with the murderous weapon with which you have provided yourself, shoot him in the deliberate manner you did. If the deceased had acted without authority, then it might have been a question whether the crime would not have been reduced to manslaughter; but being a constable, I again repeat, that he would himself have been guilty of an offence against the laws, had he not endeavoured to take into custody a man whom, as the jury have deliberately decided, he had reason to believe had committed a felony. And, in your case, your name as an offender being familiar to every one, as a man steeped in crime, not one person in the island but, as good subjects, were bound to use their best endeavours to apprehend you. The Attorney-General, on your trial urged upon me to put an additional question to the jury, besides those which I propounded, with anxious desire that every chance that the law provides for persons accused might be given to you. That question was put; the Learned Gentleman having argued that, in legal phrase, “you should have retreated to the wall.” I mention this, that you may understand the decision of the jury as to your guilt was entirely irrespective of that question. It would be strange, indeed, if in a populous town like this, when there is a loud outcry of “stop thief” in the public streets, a suspected felon fleeing before a crowd in pursuit, constables, or any person not a constable, were deemed to have acted without authority in securing the fugitive. I might quote many authorities in affirmation of this position; but it is unnecessary to trouble you with them. Your case is divested of all doubt as to the law; there is not a single vestige of a question remaining as to your having committed a foul and deliberate murder. I have thus far entered into the law of the case, because yours is one of a nature peculiar and singular; and also because the public have a right to know in what way the delay in passing sentence upon you as a convicted murderer has arisen. Had no doubt been started, it would simply have been my duty to have passed upon you the awful sentence of the law; that duty I have this day to perform.

The prisoner Cash said. - (in a very deliberate and resolute tone and manner); I beg your Honor’s pardon; but I consider that the constables ought to be tried for false swearing and convicted. When they first saw me near the public house in Murray-street, they were cowards; they were not men. One constable sings out to the other “That’s Cash; blow his head off.” The shot they fired did not harm and they come here and swear they apprehended me themselves.

The Judge. - There is nothing inconsistent in the testimony which the constables gave; they did not say that you was apprehended by them.

Cash. - Conliffe, and some more men, come here and swear that they apprehended me. All the witnesses, have come here and said just what they thought proper. The false swearing has been against me; it is very wrong.

The Judge. - After the most careful consideration of the evidence, I can detect no material discrepancy; nor, could the learned gentleman who defended you on your trial. I am very sorry to hear you make such observations, which can tend to no good result, and are not borne out by the facts. The evidence of the constables was, that when you was pursued, you turned round and fired, and at the same instant one of them fired at you. The admission you have just made is alone sufficient to justify their having done so; for you acknowledge that they made an observation, knowing you to be Martin Cash, the offender whom they had special instructions to apprehend. Constable Thomas said that when he arrived opposite the “Old Commodore,” public house, Conliffe and another man (Macdonald) had you down.

The Judge. - Agar said Thomas was upon you when he reached the scene of strife; but he did not say Thomas apprehended you. On the contrary, Agar’s evidence went to show that he assisted in your capture by wrenching a pistol from your grasp, and putting on the hand-cuffs. I can see no false swearing in the case; all the witnesses seemed to give their evidence with the utmost fairness and truthfulness. All the constables said was, that, when they came up, you was trying to escape from Conliffe and Macdonald, who had you down. To Conliffe the utmost praise is due; for he threw you down, as he must have been fully aware at the time, at the utmost hazard - the most imminent risk - of his own life. That the constables used force to secure you, is true; but, looking at all the circumstances of the case I do not see that they used unnecessary force. They knew you to be a most dangerous and desperate man; they knew, also that you had fire-arms about your person, and that you was driven to extremities. When the constables first recognized you to be Cash, whilst you was in search of Pratt’s house, and called upon you to stop, they were justified, more especially when you deliberately turned round and fired a short, in shooting you then and there. Men who are appointed to apprehend offenders, are not wantonly to incur the risk of losing their own lives, when they have to deal with an armed and desperate character, coming into the town with four or five murderous weapons about his person, ready to kill and murder the first men who may endeavour to frustrate his lawless designs, and place him in the hands of justice. The constables had a reasonable ground of belief, that, without resorting to violent measures, either their own lives, or that of some other person engaged in the capture would be sacrificed. Even in doing this, a loaded pistol - in your hand - whether wilfully by yourself, or accidentally whilst wrenching it from your grasp - does not clearly appear; but the shot from which wounded Conliffe and another individual. The constables were, therefore, justified in using violence to save their own lives and the lives of others.

You have been convicted, on the clearest testimony, of a robbery on the highway. This is a capital offence, as you evinced yourself to be fully aware on your trial; your case is so far different from that of your companion in guilt, that you have not committed deliberate murder; and also that, as regards your conviction, no point of law could possibly be mooted. In your address to the jury, you wished to impress upon them an instinctive abhorrence for the shedding of blood. But, although you have not been tried for that offence, yet as a magistrate of the territory, and a judge sitting on this bench, I cannot but be aware that you - both of you - in connexion with another man not now in custody, have committed many heinous crimes. You, Kavenagh, have been committed for trial on the charge of having, in connexion with your associates, committed a robbery in the dwelling house of Captain Horton; and it is in evidence that there you were all armed, and that one of you, with a double-barrelled gun, deliberately, barbarously, and wantonly, fired at and dangerously wounded one of that gentleman’s servants. And, when the poor man was bleeding, and on the ground, you talked of shooting some other person, whom you designated as a “bloody rogue.” Your conduct on that occasion shewed you are both men of the most dangerous and desperate characters. I have before me a list of the robberies which you have jointly committed: - There is the robbery at the Woolpack, and there two constables were wounded; the robbery at Captain Horton’s, where a servant was shot; then there are robberies at Hodgkinsons, Greenbanks, Young’s, Captain Clarkes, and a great number of others. You must both be very well aware that the measure of your iniquities is filled, that your career of crime is terminated, and that it is impossible for me, in the performance of my duty to society, to recommend the Executive Council to spare your lives. I beg that you will not deceive yourselves by entertaining any such hope. You have been guilty of house-breaking, highway robbery, robberies with violence, and almost every conceivable offence; and one of you has at last been convicted of the crime of Wilful Murder. You, Lawrence Kavenagh, set up a plausible defence; that you escaped from Port Arthur, because you was obstructed in your religious exercises. Now, what has been your conduct and character? You was sent out from England to New South Wales for 14 years. Your conduct there was so bad that you was sent to Norfolk Island, and there you remained nine years, as one of the worst men that could be picked out on the face of the whole globe. While there I find that, on one occasion you was punished for an offence by 120 lashes; on other occasions you was likewise punished; and, at last, in 1842, you was convicted in Sydney of the horrible offence of attempting to shoot the Colonial Secretary of New South Wales, and Captain Hunter. That is your character; but I do not find any thing of that description in the character of Martin Cash, previous to the time of the recent murder. You escaped from Port Arthur together; and have since, by your lawless career, kept whole districts in a state of perpetual alarm, living on plunder, and setting the constituted authorities at defiance, resisting by force of arms the peace officers sent in pursuit of you. All descriptions of offences you have committed.

Cash. - I beg your Honor’s pardon; I do not think that, while we were out, we did any thing unnecessarily cruel.

The Learned Judge resumed his address:- You, Kavenagh, have stated that you escaped from Port Arthur, because you was compelled to attend a place of worship different from your own creed. Whether this was so or not I know nothing. If it be true, no man would be more ready to condemn, such bigotry and intolerance than myself. But, if true, it does not justify you in having set the law at defiance, lurking in hiding places in the day time, and prowling about, invading the dwellings of peaceable and honest subjects, stealing their property, and putting themselves and their families in bodily fear of their lives. By your depredations, the inhabitants in the centre of the island have been kept in a state of the greatest anxiety and disquiet. If a man betakes himself to so lawless a course, it is no excuse or extenuation to say, I am a systematic house-breaker, - I have committed highway robberies, - I have long been a robber in the bush; - but did all this because, being a convicted offender, I was compelled to go into a Protestant Chapel. You say that you have not committed rape, and done no murder. This may, or may not be true; but looking at the immense number of heinous crimes which you have perpetuated, your life is justly forfeited. I have sat in this court for many years, and have seen many desperate offenders placed in the awful situation in which you stand; but even in this colony, I do not remember any case where men stood at the bar, stained with so great an aggregate amount of crime. - It may be very well for you to stand there and say - as one of you have done - that you have used no unnecessary cruelty in the despoiling of peaceable subjects of their property; and for another of you to say, I have not committed rape; but who knows the amount of distress you have caused to respectable females, throughout the entire district comprising the scene of your operations. This amount of misery and distress, and agitation, and alarm is unknown. Hundreds of families have been kept in perpetual fear. Mothers were in fear for themselves and their daughters; sons for their own lives and that of those who were near and dear to them; and fathers could not lie down to rest, except under the apprehension that, before the light of day, a forcible inroad might be made into their peaceable dwelling, and their property - the honest fruits of hard-earned industry - taken away by lawless robbers. You, Martin Cash, came into this town, knowing yourself to be a convicted felon illegally at large, with murderous weapons, ready to resist to the death any attempt to capture you, and when such attempt was made by the unfortunate deceased, you, in the most cool and deliberate manner, shot him. I can see in the case no passion - no sudden excitement; it was a murder of the most heinous description. - Your conduct throughout was of the most desperate character; you first fired, with the intent to murder the constable; you said to another person, “attempt to stop me, and you are a dead man;” then you wilfully, and as the jury have found, with a deliberate intention, murdered the unfortunate deceased.

Cash. - I beg your honor’s pardon; I did not fire at the constables in Murray-street. Had I done so, at so near a distance as what they state, they would not have got so easily off.

The Judge. - I cannot allow you to make these observations in contradiction of the evidence, against the verdict of the jury, and against my own belief. That you did fire at the constables is perfectly clear.

Cash. - I never intended to murder or kill a man, I hope you do not consider me so desperate a character as you state. Had I been so, I should have shot persons in the bush.

The Judge. - I do not think that you committed murders while in a lawless state in the bush; but you had taken upon yourselves - you and your companions - a most desperate vocation. You forced your way, armed with double-barrelled guns into peaceable dwellings, embracing opportunities when you knew they were incapable of resistance; and I have not the slightest doubt, nor can any reflecting individual have a doubt, that you would have instantly murdered any person who resisted you. True it is that you, Kavenagh, gave yourself up after being wounded; but not, as you say, from any feeling of compunction in your own breast; but because you was bleeding, in agony, in want of food, and in the prospect of dying in the bush, without any person to close your eyes - you was compelled to give yourself up to the hands of justice.

The Learned Judge (without particularly noticing this interruption), resumed his address:- The history of both of you presents as shocking, as painful, and distressing a tragedy as any ever recorded in the annals of crime, either in this or in any other country. Nothing that either of you have urged or could possibly have urged, in extenuation of your numerous offences, could induce me to entertain the question for one moment to recommend the Executive Council to spare your lives. It is the duty of a Judge, and of all constituted authorities to protect peaceable and loyal subjects from the lawless violence of desperate and reckless men, such as you have proved yourselves to be. The question in the case of both you is simply this: whether the law for capital offences is to be entirely abrogated; for such would be the effect of extending to you mercy. But, unquestionably it is in the power of the Executive Council of this colony to mitigate the capital sentence in all cases, except that of murder; which can only be done by her Majesty the Queen, the fountain of mercy. You, Martin Cash, have been convicted of a murder of the very worst description, and you must prepare for death on Monday morning; and you Lawrence Kavenagh, for the same awful change from this life into eternity within a very few days afterwards. There is no hope - not a shadow of hope - for either of you. I therefore most earnestly hope you to seek that mercy and forgiveness from the judge of all hearts, that cannot be extended to you here. And although in your case, Lawrence Kavenagh, not having been convicted, like your miserable associate, of deliberate and wilful murder, the Executive Council has power of mitigation, yet I again entreat you not to expect it: and earnestly implore you both, when you are removed from that dock, to put yourselves in immediately communication with the clergymen of your respective creeds, when by their ghostly council, and by penitence, prayer, and contrition for your past deeds, you may obtain forgiveness of Him who searchest all hearts. If you are not the incorrigible ruffians that your past deeds would give warrant of believing, you will, on retirement to your cells, kneel in prayer and penitence, and humbly implore forgiveness of those heinous crimes which have stained your names as men of the worst description. You can have no forgiveness, except by prayer - earnest prayer - to the Almighty, and by giving yourselves up to the guidance of your spiritual teachers. Your days - your hours - are numbered, and I again earnestly implore of you to make that atonement for your past deeds, by sincere repentance, which is alone left for you.

The Learned Judge then, in the usual terms, sentenced Martin Cash to be taken from thence to the place from whence you came, and from thence to the place of Execution on Monday morning, September 18, and there to be hanged by the neck until he was dead; and that his body be afterwards given up to the surgeons for dissection.

Lawrence Kavenagh was similarly sentenced, except that the day of execution was not mentioned, and that his body, after death, was not ordered for dissection.

Cash said. - Could not your Honor grant me a longer period to prepare for death. I have led so bad a life, as your Honor knows, that I require time for preparation in passing from this world to another.

Mr. Macdowell suggested to the Learned Judge that it was not now imperative by law, as formerly, to cause the execution of murderers within a particular period after sentence. At the discretion of the Judge the time might be extended.

His Honor (addressing Cash) said, I will consider your application. The Learned Counsel who defended you, has referred to an act of parliament leaving the time at my discretion. You cannot say you have been taken by surprise; after conviction, and when you was remanded for sentence, you was warned to prepare for death and that speedily. Your case is altogether so dreadful and shocking that I shall not alter the sentence already passed, although, should they so think fit, the Executive Council, have the power of postponing the final sentence of the law to an ulterior period.

During the whole of these proceedings, Kavenagh uttered not one word; but seemed absorbed in deep thought. The dense crowd were almost silent as the grave; and a pin might have been heard to fall.

When the prisoners were removed from the dock, there was a rush into the street; and both of them, in passing from the court to the condemned cell in the prison, seemed cheerful, exchanging friendly greetings with “old acquaintances,” both male and female in the crowd.

His Honor, before proceeding with the trials, alluded to the case of Martin Cash, and took the opportunity of stating publicly that he had himself respited the prisoner, as he had doubts, after very anxious reflection, whether the crime of which he had been found guilty amounted to murder; and he could not, therefore, consent to his execution, until her Majesty’s pleasure could be known, acting under the advice of her law officers, and the fifteen judges of the land.

In the course of the morning the subject was again mentioned in the presence of the Attorney General. The latter hon. gentleman said he was desirous of ascertaining from his Honor whether the criminal had been respited on the ground of any supposed mistake having been committed by himself, in framing the indictment, or conducting the prosecution; or whether his Honor had acted from any doubt on his own mind as to the law - a mere point of law. He had heard that public rumour had attributed some blame to him.

His Honor said he [???] “public rumour” as trash; public rumour said last week that he was suspended, and again that he had been drowned; one story having just as much, and no more, foundation than the other. He would repeat that he felt a doubt in the case upon a mere point of law; he (the judge) was but one individual, but at home the collective opinions of fifteen judges could be taken.

The Attorney General cared little for public rumour; but still, as the published accounts of the proceedings in that court were either mischievous or otherwise, he did wish it to go forth that the doubt which had arisen in the case of the prisoner was from any fault of his. A man attainted may be again put upon his trial for another offence; but he should exercise the discretion vested in the crown, by not again putting Cash on his trial, until after the decision of her Majesty, on the case submitted by his Honor, shall be known.

[1] See also Hobart Town Courier, 8 and 15 September 1843; Murray’s Review, 8 and 10 September 1843. On 10 September, Murray’s Review gave the fullest account of Kavenagh’s trial. On Cash and charges against his wife, see, for example, Cornwall Chronicle 6 May 1843; Murray’s Review, 28 April 1843. According to AOT SC 41/5 Cash was sentenced to be hanged and afterwards dissected, but this was commuted to transportation for life. Kavanagh was charged with assaulting James Hewitt while being armed with a gun and stealing a watch. He was sentenced to be hanged but this was also commuted to transportation for life beyond the seas. Both were sent to Norfolk Island, where Cash’s good conduct as a convict constable secured his release. Much later he received a free pardon. Much has been written about Cash, see F. Clune, Martin Cash: The Last of the Tasmanian Bushrangers (Sydney, 1955); W. and J.E. Hiener, ‘Martin Cash: The Legend and the Man’, THRAP&P, v. 14, 1967, pp. 65-85; and F.E.D. Browne (ed.), The Recapture and Trial of Martin Cash, 1843 (Adelaide, 1991).

[2] See also Murray’s Review, 22 September 1843; Cornwall Chronicle, 23 September 1843.

This sentencing decision refers to the repeal of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder). By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday. By holding the trials on a Friday, judges in New South Wales often gave the condemned prisoners an extra day to prepare themselves for death.

The governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason. In the latter cases, the final decision had to be made by the King or Queen on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645; correspondence between governor and judges, 1828, Chief Justice's Letter Book, State Records of New South Wales, 4/6651, pp 190ff.; and see R. v. Dwyer, Kinnear, Madden and Blewit, 1825 (N.S.W.).

[3] See also Hobart Town Courier, 27 October 1843.