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

R. v. Kelly (No. 3) [1828] NSWSupC 9

murder, mens rea, indictment, coroner's inquest, Crown mercy, murder

Supreme Court of New South Wales

Forbes C.J., 25 February 1828

Source: Australian, 27 February 1828

Case Of Murder.

James Kelly, a middle aged man, was arraigned on a charge of wilful murder.[1 ]

Joseph Handle, a lad about thirteen years of age, deposed that on the 6th of February last prisoner came to the house of a man named Grady, where witness was, and saying he had been robbed, he could not tell by whom asked Grady for the loan of a gun, which the latter refused.  Prisoner expressed a desire that Grady should accompany him in quest of the robber.  To this also Grady refused to assent.  Witness finally offered to accompany the prisoner, which he did as far as a place called the Rocks of Towro, about fifteen miles from Parramatta, whence observing a smoke in the bush, they immediately made towards it, and found it to proceed from a fire which appeared to have been recently kindled.  No person was near the fire.  Witness, with the prisoner, then proceeded to explore the cavity of a neighbouring rock, in which they discovered a man as if attempting to court concealment.  Kelly, who was the first to discover him, told the man to stand.  The latter, upon this, was making an effort to creep out of the cavity on his hands and knees, without evincing any disposition whatever towards resistance, when prisoner levelled a musket, which he had in his hand, at the man, who at this instant cried out "for god's sake don't shoot me, I give myself up."  These words had scarcely been uttered, when the prisoner, with a musket, fired upon him.  Witness examined the cave, and found therein a q[?]r pot and a blue basin.

Wm. Moore, a constable, deposed that on the 6th of Feb. last he met the prisoner on the road between Castle Hill and Parramatta, who told him he had just shot a man.  Witness asked him who it was.  Prisoner made answer, "that fellow," meaning a man named Fuller, who has been robbing me so often.  Witness went to the place called Rocks of Towro, and there found the man on the spot to which prisoner directed him.   The man lay weltering in his blood.  Witness asked him if he thought the wound was mortal.  Prisoner said "no, the villain has not done the trick yet, but I shall see him again for this."

John Duggan, an attendant at the Parramatta hospital, confirmed the circumstance of Fuller, on the 6th of February, being brought into the hospital in a wounded state, and to his having died next day.

Mr. Anderson, surgeon at the medical establishment at Parramatta, stated that he examined the wounds of the deceased man Fuller, immediately after his death.  Discovered two wounds about a couple of fingers breadth under the right arm.  They appeared to have been occasioned by two small bullets, which had perforated the right side.  Is of opinion they were the immediate cause of the man's death.

Witness examined the wounds but superficially.  Is confident, notwithstanding that they were not produced by other means than by bullets.  Arrives at this opinion in a great measure, from previous report; but had he not heard the circumstances of the man's death before examining the body, should have come to a like conclusion.

Witness.  The Court will perhaps allow me to explain the cause of what may be considered neglect in not examining the body earlier.  My reason was this; many of the Juries, assembled on Coroner's Inquests at Parramatta, have shown a dislike to the body being disturbed in any way, much less to open and inspect it before having assembled, whilst from the length of time that frequently elapses between the death and the holding of an inquest, the body often becomes in a putrid state.

The Attorney-General.  Then sir, I tell you, that I think it highly expedient a body should be examined immediately after death, and that you should not wait until a Coroner's Inquest be assembled, notwithstanding it is always desirable that an inquest should be convened as early as practicable after death.

The Chief Justice.  I certainly do recommend that what Mr. Attorney-General has pointed out, should be in future attended to.

Two witnesses were called on the part of the prisoner; one of whom swore that the name of the deceased man was, Thomas, and not John Fuller, as laid in the indictment.  This witness had also heard him called Fulton, but the deceased commonly answered to the name of Fuller.

Counsel for the prisoner took occasion upon this to plead a misnomer, and also, that the direct cause of death had not been distinctly made out; both of which the learned Judge considered to be subjects for the consideration of the Jury, at the same time, that his Honor thought the surgeon's evidence sufficiently conclusive on the latter head, and one witness alone had differed on the other, that of the man's name being Thomas or John Fuller.  His Honor could not see any feature in the case to justify the Jury in softening down their verdict to manslaughter; but should the Jury feel disposed to conclude that the prisoner, in firing as he had upon the deceased, was not influenced by a worse motive than that of endeavouring to recover property stolen from him, by securing him whom he considered the thief, then, their verdict might aptly be attended with a recommendation for mercy, which would not fail of being entertained.

The Jury retired for about ten minutes, and returned into Court with a verdict of Guilty.

Proclamation being then made for silence through the Court, the prisoner was asked if he could assign any just cause for judgment upon him being deferred.  Argument on the technical objections raised previously on behalf of the prisoner being again urged, but not considered by the Court as sufficiently valid, the learned Judge addressed himself to the unhappy prisoner:-  "James Kelly, you have been tried for, and convicted of, the wilful murder of one John Fuller, on the 6th day of February, by inflicting on his body mortal wounds, which the following day closed his existence.  I have put it to the Jury, that if they should be of opinion you acted under impressions without any malice towards the deceased, they might make such a recommendation to the Court as circumstances would call for, and that I would take an opportunity to represent them in a proper quarter.  The Jury has not made any such recommendation, and therefore I have to conclude that they do not see any circumstance in your case upon which I could do so.  It therefore devolves upon me to perform the painful duty of passing sentence upon you.  [After commenting on the manner of the prisoner's crime, the learned Judge continued] - the sentence therefore of the Court is, that you be taken from hence to the prison whence you came, and that on Wednesday the 27th of this present month of February, you be hanged by the neck until you be dead."

The prisoner in tears earnestly besought the favor of a long day, and he was finally removed by constables from the dock.[2 ]


[1 ] See also Sydney Gazette, 27 February 1828.  Mr Rowe acted for the defence.

[2 ] The prisoner was respited and the case sent to the Executive Council: Forbes to Darling, 27 February 1828, Chief Justice's Letterbook, Archives Office of New South Wales, 4/6651, p. 144; Australian, 27 February 1828.  On 25 March 1828, Darling sent a despatch to Huskisson of the British government, stating that the Executive Council had recommended that the sentence be commuted to transportation to Moreton Bay for seven years, and hard labour in chains.  Darling recommended the commutation to the King. (Historical Records of Australia, Series 1, Vol. 14, p. 41.)

On 31 May 1829, Governor Darling sent a further copy of the trial notes to the British government: Historical Records of Australia, Series 1, Vol. 14, pp 900-902.

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 on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645.

Published by the Division of Law, Macquarie University