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

R v McDonnel and Miller [1832] NSWSupC 2

murder, attempted - Norfolk Island, conditions on - Morriset, Colonel - Moreton Bay

Supreme Court of New South Wales

Stephen J., 1 February 1832

Source: Sydney Gazette, 4 February 1832[1 ]

The Court resumed its sittings this morning for the trial of prisoners.  A Jury having been sworn,

John M'Donnel and Francis Miller, prisoners of the Crown, were indicted for feloniously assaulting a fellow-prisoner, with a hammer, at Norfolk Island, with intent to murder, to maim, or to do some grievous bodily harm.  The information charged the prisoners, in several counts alternately, as principal and accessory.

On being called on to plead, the prisoners begged the Court would, in consideration of the magnitude of the offence with which they stood charged, assign them counsel.

Mr. Justice Stephen observed that none of the gentlemen of the bar were present; and that, even if they had been, he had no power to order a compliance with the request of the prisoners.

Mr. Therry at this moment entered the Court, and, at the request of the learned Judge, readily undertook the defence of the prisoners, and the trial proceeded.

The circumstances of this case differed in nothing from those of the greater number of Norfolk Island cases which come before the Court.  The prisoners met with opposition from the prosecutor, in an attempted escape from the settlement, and committed the outrage charged against them, in endeavouring to effect their purpose; to which, it was urged in their behalf, they had been driven by a series of oppressions.

Mr. Therry contended, very ably, that, in point of law, the prisoners were entitled to their acquittal; inasmuch as there was nothing from which malice towards the prosecutor could be collected; - the wound inflicted was so slight that the prosecutor had not sustained the smallest permanent injury from it - and the whole of the evidence went to show the intention of the prisoners to have been, not to murder, or do some grievous bodily harm, but to escape from the settlement.

The learned Judge summed up the evidence, and told the Jury, if they believed the testimony, he was bound to state to them that, in point of law, had death ensued, it would have amounted to murder, and that the prisoners were therefore amenable under this information.

The Jury retired for about a quarter of an hour, and returned with a verdict of guilty against both prisoners. - Remanded.


Forbes C.J., Stephen and Dowling JJ, 20 February 1832

Source: Sydney Herald, 27 February 1832


John McDonald and Francis Mullins convicted of striking Thomas Smith with a hammer, at Norfolk Island, with intent to kill him.  McDonald addressed the Court, observing, that the prisoner along side of him was quite innocent of the charge laid against him - he would not give sixpence to be reprieved, but he did not wish an innocent man to suffer alongside of him, and the innocence of Mullins he would declare on the scaffold.  It was remarked, that the prosecutor, Smith, had no marks of violence upon his person.  Yet, no man or ox could have stood before him with the stone hammer be used on the occasion.  His striking Smith was for the purpose of getting up to Sydney, that they might have some chance of escaping from the gaol or hulk, but not with intent to murder him.  They drew lots who was to commit the offence, and it fell upon McDonald.  He hoped the Judges would represent the tyranny of Colonel Morrisset to the Governor.  Mullins also declared his innocence.  Judge Stephen passed sentence of death upon both prisoners.



[1 ] See also Australian, 3 February 1832, reporting that the men were goaded by severe punishment, including flogging with whipcord cats ("a terrific sample of which the learned Gentleman exhibited") and excessive labour in chains.  The Australian also said that the prisoners wounded the prosecutor severely.

See too, the Australian of 9 March 1832, reporting a similar trial for a murder committed at Moreton Bay, where the prisoner allegedly committed the crime for the purpose of getting away from that penal settlement.

Violence also took place among road parties.  See R. v. HammillSydney Gazette, 5 May 1832 (and see Australian, 11 May 1832; Sydney Herald, 7 May 1832).  It was a case of murder committed by a convict on an overseer at Grose Farm.  He killed him with a spade.

Published by the Division of Law, Macquarie University