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

R v Curtan and Ryan [1826] NSWSupC 5

murder - Bringelly - evidence - accessory to offence- confession - capital punishment, failed - Crown mercy

Supreme Court of New South Wales

Forbes C.J., 20 January 1826

Source: Sydney Gazette, 26 January 1826


William Curtan and Thomas Ryan, were indicted for the wilful murder of Joseph Jackson, at Bringelly, on the 31st of October last.

The Attorney General[1 ] stated the case.

Mr. Hill, Assistant Surgeon on the Establishment at Liverpool, examined the body of the deceased on the 3d of November; it was taken out of a water-hole at some distance from the house; the bones of the face were beat to pieces, and several large fractures on the upper part of the head; the wounds were sufficient to cause the death of any person; a rope was tied round the body to which was fixed a large stone.

Mr. John Horsely, Coroner of the District of Bringelly, held an inquest on the body of the deceased on the 3d of November last; the two prisoners came forward at the inquest, and each persisted in making a declaration, which witness committed to writing; the prisoners were frequently warned before they made any declaration, and no promises whatever were held out to them on an inducement to confess.  The witness then proceeded to read the declaration of the two prisoners, each of whom accused the other as the actual perpetrator of the murder.  The prisoner Curtan stated, that in consequence of having been served with a summons to attend the Magistrates' Court, by the deceased, with whom he had some dispute, he mentioned the circumstance to Ryan, who told him that Jackson was certainly laid out to do him some injury, if he was not prevented, and that the only way to be safe was, to knock out his brains, and that he (Ryan) would do the deed himself for a glass of grog.  The two prisoners accordingly repaired to the dwelling of the deceased the same evening; Curtan remained at the door while Ryan entered the house, and after a short interval, during which, Curtan heard a scuffle within, Ryan came forth and said "Jackson is dead."  The two prisoners then dragged the body between them to a water-hole, at some distance from the house, and having attached to it a large stone with a rope, they threw it in, and then returned to the house, from which they took a quantity of tobacco, which was divided between them.  The declaration of Ryan went to state that on the evening of the day on which the conversation took place between them, as detailed by the other prisoner, that Curtan came into the house of a man named Brown, where they both lived, about 9 o'clock, looking very pale; that after having his supper, they both went out to go to bed, for which purpose they had to cross the yard; that on the way, Curtain told Ryan that he had killed Jackson, and asked him to go and help him to remove the body, as it was too weighty for him to manage by himself, and that he (Ryan) refused to have any thing to do with it.

Cross-examined by Mr. Keith. --- No hopes whatever were held out to the prisoners to induce them to make any confession; Ryan charged Curtan first; witness cannot say positively whether Curtan was the first that came forward, but he was very urgent to make a declaration.

John Molloy examined. --- Witness is stockman on the estate of Captain Piper at Bringelly; knew the deceased, and knows the prisoners; witness was passing the house of Jackson on the morning after the murder took place, and saw two children belonging to the deceased crying at the door; on going into the house he saw the clothes of the deceased scattered over the floor, and also some blood sprinkled about, in consequence of which, and the deceased being missing, he informed the district constable; the prisoners lived at the house of a man named Brown, about a mile from the dwelling of the deceased.

Michael McMahon, constable at Bringelly, apprehended the prisoners at the house of Brown; found in the bed where Curtan slept, a shirt stained with blood, Ryan said, "thank God you can find nothing bloody in my bed;" witness handcuff'd Ryan, and after some time, he said he would not keep handcuffs on for any other man, and that if witness would send away Curtan and Brown, he would shew him something that had more blood on it; that he would shew them Curtan's clothes that were hid at the back of the barn, and also where the body was, in a water hole.  Witness saw the clothes taken from the place where Ryan had described, by another constable named Ambridge; a pair of blue trowsers, brown jacket, and check shirt; the body was found in a water hole, to which they were conducted by Ryan, about 15 rods from the house of the deceased.

Cross-examined. --- Curtan said, when the clothes were found, that they were lent by him to Ryan, and that he had not seen them for six weeks before.

Robert Harbison, clerk to Mr. Lowe the Magistrate, at Bringelly, was present when the prisoner was taken into custody.  On the following morning, Ryan seemed desirous of making some discovery, and took Ambridge a constable, and witness to a dung-heap at the back of the house, where some clothes were found concealed.  The body was afterwards found by Ryan's direction in a water-hole, some distance from the house of the deceased; it appeared to witness, by Ryan's manner, that he knew exactly the spot where the body was thrown; they searched a number of holes as they went on; they found the body about six inches below the surface of the water, but it was not removed till the following day, when the Coroner attended.  The deceased had been two or three days before to Mr. Lowe, to take out a summons against Curtain, for taking away; or harbouring his wife, without his consent; a hoe-handle was found in the house of the deceased, with an appearance of blood and hair upon it.

Michael McGlynn was present at Browne's house, when the constables apprehended the prisoners; Curtan was handcuffed first; when the constables came in witness saw Ryan leave the house, go to the stable, and take out some clothes, which he shook, and then proceeded towards the straw-yard, where he remained a short time, and then returned to the house; the clothes were found afterwards in the yard, near the place where he had seen Ryan go to.

The prisoners being called on for their defence, severally denied the charge, and Ryan stated, that if he had been admitted King's evidence, he would have brought the whole matter to light.

George Brown, called as a witness for Ryan, deposed, that Ryan and Curtan lived in his house; that Ryan was at home on the night when the deceased was supposed to be murdered; that Curtan, on leaving the house early in the evening, asked Ryan to accompany him, which he refused; that he remained within, and supped with witness and his family; about two hours after, Curtan returned and took his supper, and Ryan and he then went out together to go to bed; they then slept in the stable.  Witness saw no more of them till next day; has heard people talk of Curtan and Mrs. Jackson frequently; the deceased himself has complained to witness of Curtan.

A witness was called on the part of Curtan to prove an alibi, but failed.

The Chief Justice summed up the evidence.  The information against the prisoners contained two counts, the first count charging the murder as committed by Thomas Ryan, and then went on to charge Curtan as present, aiding and abetting.  The second count reversed the relation, and charged Wm. Curtan as giving the blow, and Ryan as present aiding and assisting.  The case turned partly upon the confession of the two prisoners made before the Coroner, and partly upon circumstances.

It was distinctly disclaimed on the part of Ryan, in his declaration, that he knew any thing of the transaction, except from Curtan after the deed was done.  It appeared also that after, he was taken into custody, he made certain disclosures; that he asked the constables to take the handcuffs off, and said that he would not suffer for another man, and that if the shackles were taken off, he would shew where the clothes were.  It was stated, that upon searching the sleeping place of Curtan, that a shirt was found stained with blood, and that Ryan said, "thank God, you can't find any bloody clothes on me," and on the following morning the conversation took place with the constable, that if the handcuffs were taken off, he would shew where the clothes were.  Then with his knowledge of that fact, how came he to conceal it from the constable on the night before?  The conclusion certainly was against him.  It was also stated, by McGlinn, that on the night before, after Curtan was taken into custody, he observed Ryan go to the stable, take some clothes out, and proceed to the stable yard, and on the following morning the clothes were found within a yard of the spot where he was so seen; and therefore, supposing they were the clothes of Curtan or any other person, who commited [sic] the murder, how came he to conceal them, unless he was somehow mixed up in the transaction?  He must have known at all events, that Jackson had been killed, though it by no means followed that he was the person who actually slew the deceased, or even that he was present aiding and assisting, but that he was at all events in possession of the fact of the death, and though not guilty of the charge laid in the indictment, as a principal, either in the first or second degree, he still might be guilty of concealing the murder.  The question then was, was the murder done in the interval between Curtan's leaving Browne's house, and returning?  It might have been committed in that time, and Ryan not be a principal either in the first or second degree.  Considering therefore, that circumstance, it would be for the Jury to give the prisoner the benefit of any doubt which they might entertain.  The case against Ryan was, that he knew of the murder, and did not make the disclosure in the way an honest man would have done.  With regard to the case of William Curtan, he, like Ryan, was found in the situation where the clothes were found stained with blood; there was also found in his bed a shirt stained with blood, which had not been in any way by him accounted for.  The clothes also which were found, though pointed out by Ryan, still they were identified as like those which Curtan wore.  He related before the Coroner, after having been previously warned, that being served with a summons to answer a complaint of the deceased, that he mentioned it to Ryan, who said, if Curtan did not take care, Jackson would send him to Port Macquarie.  A conversation then ensued between them, in which Ryan said the only way by which Curtan would be safe, was by knocking out the brains of the deceased, and that he would do it himself for a glass of grog. In pursuance of that purpose they repaired together to the house of the deceased, Curtan stated that he remained outside, while Ryan went in, and that in about 25 minutes he returned, saying "Jackson is dead" that they then dragged him out, and having fastened a stone to the body, threw into a water-hole.  The declaration then of Curtan, though he stated the deed as having been done by Ryan, was not evidence against Ryan, but was as far as it went, evidence against himself.  It proved, even according to his own account of the transaction, that he was present aiding and assisting, for in the eye of the law, being present, did not mean being present so that he could actually see the deed perpetrated, for he might be on the watch or in some other way at hand, so as to aid if necessary, as it appeared even from his own confession, coupled with other circumstances of suspicion, there could be no doubt of his being a principal in the second degree.

The Jury returned a verdict, Curtan Guilty. --- Ryan, Not Guilty.


Failed execution: 23 January 1826

Source: Australian, 26 January 1826


Curten, who received sentence of death on Friday last,[2 ]and of whose guilt, considering the evidence adduced on trial, but little doubt existed, was visited in the gaol by the Roman Catholic Clergyman during Sunday with whom some time was passed in prayer; devotional exercises, occupied a greater part of that night, and as the unhappy man could not read himself, a fellow prisoner kindly performed that office.  As the morning dawned, and the final hour of retribution advanced, his composure of mind did not appear impaired.  The firmness which he had manifested on trial still appeared predominant, and the exhortations of the Clergyman were listened to with fixed earnestness.  At nine o'clock, the Under Sheriff arrived at the gaol, and immediately proceeded to the culprit's cell, who observed that the time was short, but he was prepared to die.  The crime for which he had been found guilty, he declared his entire innocence of; at the same time, from what was sworn against him on the trial, a different issue could hardly be expected.  The unhappy man being divested of his irons, was conveyed down the steps to the gaol yard.  He then ascended the scaffold with great firmness - his countenance not evincing the slightest change.  Having shook hands with the Clergyman, he was left alone.  Upon a preconcerted signal, the drop fell, when strange to say, the rope snapped, and precipitated him to the ground, from a height of nearly thirty feet.  Restoratives were despatched for by the Reverend Clergyman, who humanely requested that some time might be allowed the culprit for recovering.  This was instantly complied with, whilst the Under Sheriff and he repaired to government-house to state the circumstance.  They returned in a short time with information that in consequence of some circumstances which had transpired, the Governor had been pleased to order a respite for one day, during which time the culprit would have an opportunity of proving the truth of those asserrions [sic] which he had made of his innocence.  The unhappy man declared that he trusted in his God to bring proof for him; he was then carried away in the arms of four men.  At 12 o'clock the same night a further respite sine die[3 ] was received at the gaol.



[1 ] Saxe Bannister.

[2 ]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.  See R. v. Butler, July 1826.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.  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, June 1824.

Governor Darling initially said that the law must take its course, that the prisoner was to hang: Darling to Forbes, 21 January 1826, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 67.

[3 ]Indefinitely.  On 30 April 1826, Governor Darling wrote to Earl Bathurst about this case, saying that he had reprieved the prisoner until His Majesty's pleasure was made known.  In light of the prisoner's continued protestations of innocence until the moment of his failed execution, and of the injury he suffered at that time, the Executive Council changed its earlier decision that he should hang.  It decided that his sentence should be commuted to hard labour and imprisonment on Norfolk Island for life.  In his initial report, Forbes C.J. said that there was nothing about Curtan's trial which allowed him to recommend mercy.  See Historical Records of Australia, 1/12, pp 243-245.  Eventually, the King granted Curtan a conditional pardon: Bathurst to Darling, 2 November 1826, Historical Records of Australia, Series 1, Vol. 12, p. 673. .  See R. v. Butler, July 1826.

Published by the Division of Law, Macquarie University