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

R. v. Johnson, Smith and Gilroy [1828] NSWSupC 21

murder, manslaughter, provocation, self-defence, Moreton Bay, highway robbery, capital punishment, failed

Source: Australian, 23 March 1828


William Johnson, who was brought to trial on Friday, and found guilty of murdering, upwards of three months back, a fellow-being at Moreton Bay,[1 ] died with another culprit named Gilroy, by the hands of the hangman on Monday.  The gloomy ceremony was gone through with at the usual place of such scenes; but certain unusual circumstances which attended it, caused the finisher of the law not to have his work finished till it was very near the hour of noon.  'Twas on the 11th of December last, at Moreton Bay, that Johnson perpetrated the act which brought him and the gallows in collision.  He and a man named Morris Morgan were on that day employed together felling timber.  Both were labouring for government.  They were not generally considered, by others on the establishment, as bad friends; but, on the day described, Johnson came up from where he was felling wood, to wards four of a brick-making gang, and calling from over a fence which parted them, to one of the gang, Johnson said "Morgan has threatened many times to blow out my brains, and I've hit him with my axe." describing, at the same time, where Morgan lay.  The brick-maker, Stones, and another man named Mallen, immediately rushed towards the spot pointed out, and arrived in time to receive Morgan's last gasp.  There was on the right side of the dying man's scull a fracture, and a deeply incised wound towards the back of the head, as if inflicted by an axe which lay near the spot, and bore on it marks of blood.  Smith and Gilroy were the two fellow sufferers appointed to the die with Johnson, for a cart robbery, of which they and another (Donahoe), were convicted; but Donahoe, by escaping whilst on his way from the Court-house to the Gaol, 'scaped hanging also, for this time, though, if report speak true, he signalized the very night of his death 'scape, by an exploit or two on the road, and was retaken a few days back, up the country.  Johnson's crime did not rank him so high in the scale of villany, as if he had been a cool and premeditaetd [sic] murderer - his offence seems to have been excited during the whirl of passion; and there consequently was more pity for his fate, spread among the spectators, than is usual when a culprit swings for murder.  Johnson, was a stout, sailor-like man, of the middle size.  He had served in the fleet under Lord Exmouth, at the bombardment of Algiers.  Smith and he were attended by the Rev. Mr. Cowper, the Presbyterian Minister, Dr. Lang, and Mr. Horton, of the Wesleyan mission.  Gilroy professed being of the Roman Catholic persuasion, and was attended by the Reverend Mr. Power.  About the usual time being passed in prayer, and other preparations, the three culprits were at last left in possession of the gallows - the executioner suddenly withdrew the spring supporting the drop, and it fell - a universal burst, expressive of horror and surprise, instantaneously burst from those within sight, inside and outside of the gaol-yard - the rope which was to have suspended one of the culprits (Smith) had snapped asunder, and he tumbled to the ground in a senseless state.  Thus unexpectedly scaped from the jaws of destruction - the culprit slowly recovering to a sense of his dismal situation, was placed on his own coffin - between the fall and the fright, the limbs of the unhappy man appeared to have become paralysed.  He attempted to say something, but in so faint and inarticulate a way, that their purpose could scarce be guessed at.  His fellow culprits were in a few minutes rendered unconscious of the world.  Suspended by the neck, their carcases swung to one side and another, and over the head of the living culprit, who, shortly after recovering, ardently desired that he might be allowed to breathe a little longer, were it but for half an hour.  He continued sitting on his coffin, painfully vibrating between hope of mercy, and doubt, and fear, until the return of the Sheriff from the fountain of Grace, whither he had been to know how matters were to work.  The Sheriff re-appeared - there was a deep silence of some instants - was a trying moment.  Many felt disposed to hope that mercy would take her seat with justice -

"The quality of mercy is not strained -

It droppeth as the gentle dew from Heaven,

Upon the place beneath; it is twice blessed -

It blesseth him that gives, and him that takes;


And earthly power doth then shew, likest God's

Where mercy seasons justice." -

Certainty, however, soon took the place of suspense.  The Sheriff was instructed to tell the culprit "the law shall take its course."  He was then conveyed back to the condemned cell.  About eleven o'clock, the bodies of the other two having been suspended the usual time, were lowered into coffins, prepared for the purpose.  The body of Johnson was given for dissection: and the cap of Gilroy being drawn up, by the Sheriff's order, a transfusion of blood, which shewed immediately after his being turned off, was found to have proceeded from the nose.  The bodies having been disposed of, Smith was again led into the yard, and in the arms of two or three fellow prisoners re-placed on the gallows, whilst he sobbed most piteously.  The executioner made surer of his prey this turn, than before, and a few minutes longer sufficed to render the culprit insensible of any scene passing around him, though he struggled hard with death to the last.


[1 ] For a report on the trial, see Sydney Gazette, 24 March 1828.  Johnson claimed that he was disadvantaged in his trial by the absence of several witnesses.  Justice Dowling, the trial judge, inquired into the evidence they could have given and found that it was not material.  He also informed the jury that "on the authority of Lord Hale, and Mr. Justice Blackstone, whose dictum he quoted, that no degree of provocation could justify a homicide; the utmost it could do would be to mitigate it to manslaughter.  The weapon, too, with which the fatal blow had been given should also be taken into consideration, as to whether it was such an instrument as was likely to cause death, and whether the use of it was commensurate with provocation, assuming that a provocation had been given.  But there was also another question for the Jury in this case, namely, supposing that a threat or some other provocation had been given on the part of the deceased, whether the prisoner could not have run away and avoided the injury to himself, without turning on a fellow-creature, and taking that life which God gave him.  His Honor then recapitulated the whole of the evidence, and concluded by again pressing on the attention of the Jury, the to points for their consideration which he had already stated, namely, first, whether they could collect from the whole of the circumstances, that such a provocation had been given as was commensurate wit the use of such an instrument as the prisoner had employed on the occasion; and, secondly, assuming that the prisoner was himself attacked, whether he had not an opportunity of escaping without resorting to the desperate means he had employed, and depriving a human being of his existence."  See also, editorial comment, Sydney Gazette, 24 and 26 March 1828.

Published by the Division of Law, Macquarie University