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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Donovan [1824] NSWSupC 14

murder - evidence - dying declaration - hearsay

Supreme Court of New South Wales
Forbes C.J., 20 August 1824
Source: Sydney Gazette, 26 August 1824 [1]


Murder by Burning.- John Donovan was indicted for the wilful murder of Thomas Brown, on the 8th of July last. The circumstances of this case will appear by the evidence.

Dr. West, Resident Surgeon at Windsor, deposed, that on the 8th of July last, the deceased Thomas Brown was brought in from the Government Settlement at Emu Plains, in a cart, in a shockingly burnt condition. The poor man was wasted from the soles of the feet up to the shoulder blades, and even round the sides. Wishing to afford the patient time to recover from the fatigue of the journey, Dr. West thought it unwise to interrogate him immediately as to the cause of the distressing situation in which he was placed; but, on the following morning, for the ends of justice, required a narration of the particulars[.] The deceased then told the Surgeon, that the prisoner and himself were fellow-sawyers at a short distance from the settlement at Emu; that their work was allotted to them by the task, to perform which the prisoner, his associate, was most unwilling; whereupon he told him, the prisoner, that it would be necessary to report the same, as he, the deceased, would not be punished for his neglect. After this conversation, the prisoner went into camp (the settlement at Emu). About midnight he returned to the hut, which was occupied by the deceased and the prisoner. Another man was in company, whom he reported as being a stock-keeper in quest of some lost cattle. The deceased then desired the prisoner to dress the man some provision, as he might require refreshment. The prisoner and the stranger went to supper, and the deceased fell asleep. About four in the morning, as near as he could recollect, he was awoke by the prisoner and the other man, in the act of conveying him from the bed to the fire. He was laid between two large logs. He resisted the savages, and succeeded in tearing himself from their horrid embraces. Not from any hope of obtaining assistance, as the hut was too far from the settlement to be within the possibility of hearing, he made the woods to re-echo with the dismal cry of "murder," and thus intimidated his assailants from pursuit, whilst he made for and gained the camp; from whence he was immediately sent in to Windsor, for the benefit of professional aid. Dr. West added, that the deceased did not give his declaration under the impression that he was dying, but that, on the contrary, the man entertained hopes of recovery; which, however, was at variance with the judgment of Dr. West, who at once discovered, from the height the fire had ascended the body, that the vital parts were affected; and which, he had no question, caused the dissolution of the man upon the 12th of July - four days after the affair transpired.

Mr. John Purcell, chief constable at Penrith, deposed, that he was proceeding towards the Rev. Mr. Fulton's on the morning of the 8th of July, and perchance fell in with the prisoner at the bar, who being of a suspicious appearance, was immediately secured by him. At this time he knew nothing of the present transaction. But, upon hearing of the circumstance, he was led to scrutinize the prisoner, and ascertained that his trowsers were singed or discoloured by fire, and that his face was marked by several scratches. While in Penrith gaol, the prisoner, so far from denying the crime laid to his charge, attempted a justification by remarking, that the deceased had always been annoying him; that he was in the habit of calling him a "Munster stork," meaning thereby that he was an idler, coming from a particular part of Ireland; and that he, the deceased, used to thrust the saw in his face. He added further, that there was no third person present, but that a quarrel ensued owing to unpleasant epithets from the deceased; and in the act of grappling, they fell into the fire. The reason he assigned for running away was, that the deceased had gone into camp, and that he expected to be punished. The trowsers, with the marks of burning, were exhibited in Court.

Joseph Peters, principal overseer at Emu Plains, deposed, that it is his duty to locate the prisoners to their various employments; that the deceased and the prisoner were placed in one station, and one hut, as a pair of sawyers. He saw the deceased after he was burnt; he was roasted all over. In less than half-an-hour after the transaction he, the witness, visited the hut; and the prisoner was absent, and was also absent from work that morning. The interior of the hut bore every appearance of disorder and confusion. The bedding was scattered over the room. From a view of the fire-place it appeared that some one had been lying in it, as the ashes were evidently pressed flat, and retained the impress of feet; but there were no logs in the fire-place; only a small fire in the back of the chimney, and the scattered ashes were quite hot. In answer to a question put by the prisoner, the witness admitted that the deceased was an aggravating man.

John M'Henry, Esq. Justice of the Peace, was called to prove a deposition made by the deceased while lying in the hospital at Windsor; but as this declaration was not made in the presence of the prisoner, the Court could not receive it as evidence.

The prisoner gave in a written paper, which was read by the Prothonotary, Mr. Moore. This paper merely went to confirm that part of the conversation sworn to by Purcell to have taken place between him and the prisoner; of which, in fact, it was a repetition. He persisted in declaring there was no third man. The prisoner called no witnesses.

His Honor the Chief Justice remarked, that the defence of the prisoner, which might be called a confession, must either be taken altogether, and not in part, or rejected; and therefore it would be incumbent on the Jury, under all the circumstances, to lose sight of any admission from the prisoner. The whole of the case was suspended upon a very tender point; and that point was, whether the deceased made his declaration to Dr. West, under the impression that he was in a dying state? This was the extreme tenderness of the case, and it remained with the jury to decide the question. The verdict was Guilty.

His Honor the Chief Justice then proceeded to the painful duty of passing the awful sentence of the law upon the prisoner. His Honor pathetically remarked, that he would not aggravate the sufferings of the unhappy man, but called upon him to prepare to properly meet that fate from which there was no escape. He was then consigned to death, on the 23d inst. (Monday). [2]




[1] The Sydney Gazette (26 August 1824) made the further comment, apparently in reference to this case: "A point arose in a case lately before the Criminal Court worthy the attention of Magistrates. A man was charged with putting another to death. In support of the charge, a deposition, made by the deceased, was offered in evidence; but, not having been taken in the presence of the prisoner, it could not be received; - the rule of law resting on its being just that no man shall be bound by what is done in his absence. Magistrates should be careful to cause the defendants to be brought before them, wherever the persons to be examined are not in fear of dying."

[2] 23 August 1824. See Sydney Gazette, 26 August 1824 for a report of his execution on that day. In this case, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday. This was consistent with the provisions 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, Forbes C.J. gave the condemned prisoners an extra day to prepare themselves for death. The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826. By s. 4 of the Act, the judge was given power to stay the execution; for an example of that, see R. v. Fitzpatrick and Colville, 1824.



Published by the Division of Law, Macquarie University