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

R v Smith and others [1833] NSWSupC 100

convict mutiny - Port Macquarie - attempted murder

Supreme Court of New South Wales

Burton J., 11 November 1833

Source: Sydney Gazette, 14 November 1833

(Before Judge Burton and a Civil Jury.)

Joseph Smith, Henry Lebena, Edward Hammond, Patrick M'Laughlin, Adam Barker, Jonathan Knowles, William Sykes, Alexander Allerson, John Barker, Thomas Prickett, and George Giddons, were then indicted for an assault on the person of Thomas Millbourne, with intent to kill, at Port Macquarie, on the 23d of August last.

Thomas Millbourne, said - I live at Port Macquarie; I was appointed overseer of the goal gang; I remember the 23d of August last; I was standing with a pistol in my left hand by the side of the pitt where the gang were carting the earth away; we had just come up from the barracks; Giddons asked me for the small pieces of paper I had in my waistcoat pocket; he then put his hands round me in a civil manner to give him the paper; I resisted, and three others came to his assistance - Smith, M'Laughlin, and Lebena: I also know the other prisoner, Allerson and Hammond; the others I cannot identify; they then attempted to take the pistol from me, and got me down and struck me with their hands about the head; Giddons at length succeeded in getting the pistol from me; he then struck me four blows upon the head; I think the prisoner Thomas Prickett was one of the party, but I am not quite certain; I have not seen either of the prisoners since their committal; Lebena said, when I was down, "kill the ---- ;" I called out murder; two of the parties said I might call out, they would soon finish me; I cannot say positively which two they were; at that time I lay bleeding on the ground; the pistol was fired by one of the party; I think it was Smith; when I got up I saw a stranger there; I understood his name was Doyle; the men left me when Mr. Doyle came up, and I went directly to Mr. M'Intyre's house; I was then bleeding from the wounds received; I heard Giddons say, when he was going in at the gaol door, that a great many more ought to be served in the same way; there was another constable about thirty feet from me at the same time.

Cross-examined by Mr. Rowe - you have looked at all the men, and you cannot see Smith among them?

A. I cannot identify him; I was standing looking at the men at work when Giddons came up to me.

Q. Do you believe that the last four men who came up to you intended to render you assistance?

A. I cannot say what they meant; I received no assistance until Mr. Doyle came up.

By Mr. Keith - Giddons, you say, was the first person that came to you?

A. He was.

Q. Will you swear that Giddons struck you?

A. I can swear that he did, as my face was towards him when he struck me, consequently I had a good opportunity of seeing him.

Q. Did you lose your senses?

A. I did not lose my senses, but I was stunned.

Q. Was the pistol broken before you were struck?

A. It was not broken.

Robert Wisall, the other constable who was present, deposed, that the was overseer of an iron gang at Port Macquarie; he was about four or five yards from Millbourne when he was attacked; the prisoner Smith followed the cart up; I asked him what he had come up for; he answered, "we shall see presently when we get into the pit; I said "now my lads, we will fill one load more, and then knock off ;" Millbourne at that time had his back against the bank; I then heard a scuffle, and, on turning round, I saw five or six men all upon him; I know them; they are Giddons, Smith, Allerson, M'Laughlin, Prickett and Barker; they had Millbourne on his back; M'Laughlin had got him down, and Giddons was beating him on the head; I ran to his assistance; Smith, Sykes, Lebena and Allerson, then turned upon me; Smith got the cutlass from me, and struck me three or four times; I had also a stick in my hand, with which I defended myself as well as I could; I heard Lebena say "finish him," when they were down upon Millbourne; Smith said so also; I then ran and called Doyle to my assistance; he came directly; the pistol then went off; I distinctly saw Giddons fire it; it was pointed towards me; when Doyle came, I ran for the military, and on coming back saw Millbourne with his head all over blood; I know nine of the prisoners, Giddons, Smith, M'Laughlin, Lebena, Baker, Sykes, Knowles, Allerson, and Pritchett.

Cross-examined by Mr. Rowe - You were near Millbourne at the time this affair happened?

A. I had my back turned towards him at the time the prisoners made a rush upon him.

By Mr. Keith - How many blows did they give him?

A. I cannot say.

Q. How long elapsed till Doyle came up?

A. I think about eight or ten minutes.

By Mr. Unwin - How far were you from Millbourne at the time these men were beating him?

A. I think about three yards.

Q You say that Sykes was one of the men?

A. he seized my arm.

Q. Neither Sykes or Knowles offered you any violence?

A. Neither of them.

Q. You say that there were shovels and spades near; could they have used them?

A. If they liked they might.

Q. Then you think they only wanted to give him a beating, that they did not want to kill him?

A. It appeared like it.

Christopher Doyle said, I live at Port Macquarie ; I am a shopkeeper and dealer; I recollect the 23d of August last; the report of a pistol attracted my attention; I looked out of the window and saw Wisall running towards my house; he called out "Doyle, Doyle, they will murder him;" I then rushed out and took part of a stick he had in his hand, and ran towards the gang; I then saw a man down and two men standing over him; the man on the ground appeared to be struggling; one man, who was standing over him, I knew to be M'Laughlin; the other I do not distinctly know, but I think the prisoner Hammond was the other that was with M'Laughlin.

Mr. M'Intyre said, I am a surgeon at Port Macquarie; Thomas Millbourne came to me on the 23d of August last; he had received two wounds on the right side of his head, and another on one of his temples; the nail on the left finger was nearly knocked off; one of the wounds was deep; I should say it was done with a sharp instrument; the contusion on the head was done with a blunt instrument; it appeared to have been done with the trigger of the pistol; I examined the wounds, washed the blood off, and sent the man up to the hospital; they were dressed there; I saw them the next day, and they were doing very well; I did not apprehend any immediate danger from what I saw of the wounds; a wound on the head that does not at first appear dangerous, sometimes turns out so afterwards.

This witness was cross-examined by Mr. Rowe and Mr. Unwin, but nothing particular was elicited.

Judge Burton - Mr. M'Intyre, I ask you as a medical man, do you consider the wound that the man received, was one of a grievous, bodily injury?

Witness - I certainly do think it was.

The learned Judge then summed up the evidence; when the jury retired for an hour and a-half, and returned a verdict of Guilty against George Giddons, Joseph smith, Patrick M'Laughlin, William Sykes, Alexander Allerson, John Baker, and Thomas Prickett; the other prisoners, Not guilty.  The prisoners were remanded for sentence.

Published by the Division of Law, Macquarie University