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

R v Muckleton, Cuffe, Walsh and Browne [1830] NSWSupC 34

murder, Moreton Bay

Supreme Court of New South Wales

Dowling J., 28 May 1830

Source: Sydney Gazette, 29 May 1830[1 ]


(Before Mr. Justice Dowling.)

Henry Muckleton was indicted for the wilful murder of Mark King, and Patrick Cuffe, Thomas Walsh, and William Browne, as accessaries present aiding and assisting, at Moreton Bay, on the 19th of February last.

Mr, W. H. Moore, conducted the prosecution.

From the evidence adduced in this case, it appeared that the prisoners, from what motive could not be collected, concerted together to take away the life of the deceased, a fellow prisoner at Moreton Bay.  On the day preceding the commission of the murder, the prisoners were seen in the barrack room, to which they had been confined for refusing to go to work, consulting together for some time.  One of them (Cuffe) had a falling axe with the handle cut short, so that it could be used like a tomahawk, which he gave to Walsh, who concealed it underneath his bed.  Neither this circumstance, nor that of the axe being transferred to Muckelton in the course of the same evening, excited the particular attention of the witnesses, as a plan appeared to have been in agitation among the prisoners to break out of the barrack, and it was supposed the axe was to be used in the attempt.  Between two and three o'clock in the morning, however, the prisoners being at that time all in bed, and the greater number asleep, one of them who had occasion to get up saw Cuffe and Walsh in a corner of the room in conversation, and heard Cuffe say that he would ``have nothing to do with it; they must do it among themselves."  Walsh had an axe under his arm at the time.  Shortly after the witness returned to bed, he heard a noise of blows, and on directing his attention to the quarter whence the sound proceeded, saw a hand moving up and down over the bed of the deceased, as if striking a number of successive blows.  The witness kept his eyes fixed on the spot, and distinctly saw the individual by whom the blows were given lie down in the bed next to that of the deceased, and in which the prisoner Muckleton slept.  About the same time, another witness who also had occasion to rise in the night time, passed the bed of the deceased, and saw the prisoner, Muckleton, striking the deceased on the head with an axe, as if he was chopping wood, while another man, who, from circumstances, he had no doubt was Walsh, held him down in the bed.  The cry of murder was immediately raised, and upon the Superintendent entering the barrack, accompanied by the guard, one of the witnesses immediately pointed out Muckleton as the man by whom the deceased had been wounded.  Upon examination the axe was found in the prisoner's bed, and several traces of blood on his person.  Browne was taken into custody in consequence of having been seen in conversation with the other prisoners on the day previous to the murder; but none of the evidence otherwise affected him in any way, but for his confession taken before the Commandant, Captain Logan, and made also, when in the cells, to Dr. Cowper, that he, together with the other prisoners, had concerted to murder the deceased.  The deceased had thirteen incised wounds on his head, one of which penetrated to the brain just above the ear, and another nearly seperated the upper from the lower jaw; notwithstanding which he lingered three days in hospital before he expired.  When called upon for his defence, the prisoner, Muckleton, said he was guilty, but that the other men knew nothing of it.  The other prisoners denied the charge, and called two witnesses for the purpose of impeaching the witnesses for the Crown.

Mr. Justice Dowling minutely recapitulated the whole of the evidence, pointing out those parts of it which most materially affected the several prisoners.  With respect to the prisoners charged as being present aiding and assisting, His Honor told the Jury they must be satisfied that they were so before they could be brought within the scope of the present information.  It was not necessary, however, that there should be an actual presence.  If they were in a condition to know what was doing at the time, although they were not actually looking on at the commission of the murder, they were constructively present.  Thus if one man stood at the door of a house while another went in and committed a murder, he who remained outside, would be properly charged as being present aiding and assisting; - as, an in indictment for killing a man in a duel, the seconds were equally principals with him who actually pulled the trigger, as being looking on at the time.  But if, in consequence of a preconcerted plan formed among several others, one of the party should commit a murder without the others being in a condition to know when it was perpetrated, then, although they would be equally amenable to the law as accessaries before the fact, they could not be found guilty on an information charging them with being present aiding and assisting.  Bearing these observations in minds the learned Judge invited the particular attention of the Jury to the evidence as it affected the prisoners, Cuffe, Walsh, and Browne; for, with respect to the guilt of the prisoner, Muckleton, His Honor apprehended no doubt could exist if they believed the witnesses, independently of the avowal which he had made in the dock.

The Jury retired for about half an hour, and returned into Court with a verdict of Guilty against Muckleton, and acquitted the other prisoners.

The learned Judge then pronounced the awful sentence of the law on the prisoner, Muckleton, and ordered him for execution on Monday next.

The other prisoners were remanded on the motion of the Crown Officer, who, it is understood, will present another information against them as accessaries before the fact.[2 ]



[1 ] See also Australian, 4 June 1830.

[2 ] These three prisoners were subsequently acquitted of this offence as well: Australian, 4 June 1830.  Muckleton was hanged on 31 May 1830: Sydney Gazette, 1 June 1830.

Published by the Division of Law, Macquarie University