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

R. v. Cavenagh, Chesterfield and Sergeant [1834] NSWSupC 6

murder, felony murder - convict evidence - convict escape - capital punishment, dissection - jury, challenge to

Supreme Court of New South Wales

Dowling J., 7 February 1834

Source: Sydney Herald, 10 February 1834[ 1]

James Cavenagh was indicted for the wilful murder of Robert Steward, at Bathurst, on the 30th of November last, by striking him on the head with a ``throw," (an instrument used in splitting shingles) and Bletzer Chesterfield, and Charles Sergeant, for being present aiding and abetting in the said murder, and James Farrel as an accessory after the fact, he well knowing them to have committed the murder, and harbouring and maintaining them after the same.

Patrick Wallace had run away from No. 11 iron gang, on the 28th November last, and arrived at Bathurst on the 30th, the day laid in the indictment; he went to the house of Mr. Hawkins, on the estate of Major General Stewart, where he met the prisoners Cavenagh, Chesterfield, and Sergeant, and Farrel came in during the evening: they had some rum together; Cavenagh, Chesterfield, and Sergeant in course of conversation said they intended to rob Mr. Blackett's store; they then blacked their faces, as did witness also, and went out together leaving Farrell in the house; instead of going to Blackett's store as at first intended, they went to the house of Robert Stewart; Cavenagh and Sergeant went up and knocked at the door, which was opened, and they both rushed into the house; two men immediately came running out, Cavenagh pursuing Robert Stewart, and striking him over the head with a throw; Stewart (who was seventy-four years old) begged for mercy, and witness cried out `don't murder the man;' witness relented and ran off to inform Lieut. Darley, of the mounted police, which he did, and described all the particulars to him; Lieut. Darley then went with witness towards Stewart's house, they saw at a distance a man coming with a bundle, and witness said `here they come with the swag'; the man turned off toward the bush; Lieut. Darley hailed, and desired him to stop, which he refused to do, dropped his bundle, and was fired at, but missed.  On getting near the house of Mr. Hawkins, (to whom all the prisoner's were assigned convict servants) Charles Sergeant was seen naked, creeping along under the fence into a stable, and when subsequently found, had blood on his person, and had wrapped himself up in a blanket; he accounted for the blood by saying that he was shot at by a bushman, and next, that he had cut his finger in cutting some bark to get a light, this was at half-past two o'Clock in the morning; on going near the house of Robert Stewart, which was in the immediate neighbourhood, his body was seen with the head horribly disfigured, the brains scattered about, and one eye forced out, and fallen on the cheek; the body was still warm, and appeared to have been dragged some distance after the murder was committed; Lieut. Darley going then into the house, saw near the door, the body of John Waters, who had also been murdered, apparently outside the house, and afterwards dragged into it; Waters and Stewart had lived together.  The prisoner Cavenagh, who was the man that dropped the bundle, when first seen, was captured about ten o'Clock of the same morning, by corporal Crane, of the 17th Regt., and when his clothes were examined, two spots of blood were found on his shirt, near the shoulder, which he said came from a bullock, his shirt sleeves were quite wet, which he said was occasioned by his stooping down to drink in a brook, when both his hands slipped into the water, in his pocket was found seventeen shillings and six-pence in silver coin, which had apparently been cleaned or washed; and on one of the pieces of money there were marks of blood.  Chesterfield was afterwards found in bed with Farrel, who had harboured and concealed him at the house of Mr. Hawkins.  On the clothes of all the prisoners blood was found except Farrell's.

George Busby, Esq., assistant surgeon to the establishment, at Bathurst, deposed to his having examined the body of Robert Stewart, on the 30th November, which was quite dead.  There were a great many wounds on the head; he saw a `throw' produced at the Inquest with two or three grey hairs adhering to it, and some marks of blood on it; such an instrument would produce wounds similar to those he had seen on the head of the deceased.

The prisoners called several witnesses who were brought into Court heavily ironed, and when the Solicitor General objected to their being examined in that state, it was found that their irons were rivetted on, and could not then be removed; the objection was therefore over-ruled.  The object in calling these witnesses, was to throw discredit on the testimony of Wallace, the principal witness, but had no relation to the horrid case then before the Court.

His Honor then addressed the Jury, and said that although they were not much accustomed to the fatigue of Courts, and probably felt exhausted, he should read over the whole of the depositions, and remark on the leading features of the case.  The principal witness, Patrick Wallace, was transported here, and had since been in trouble; but there was nothing in his testimony disproved by other evidence.  All the circumstances connected with this horrid affair, concurred to corroborate his statement.  Farrell was charged with aiding and abetting in this case; but the Jury would understand that the law made him a principal where there was a guilty knowledge of the facts.  If many persons conspire to commit a robbery, and murder should ensue, which was not originally designed, all the parties to the robbery would be amenable to the law as principals, and would suffer death for the offence.  His Honor recollected a case in illustration of the remark when he was practising as a Barrister in England, where he was engaged to defend the prisoners; six of whom were hanged under the circumstances described.  The Jury in the awful and diabolical affair before them, would consider well all the evidence, and come to their decision accordingly.

The Jury retired for about half an hour, and on their return pronounced James Cavenagh, Charles Sergeant, and Bletzer Chesterfield, Guilty - and James Farrell, Guilty as accessory after the fact.

Farrell was remanded.

The Solicitor General prayed judgment of the Court.

His Honor putting on the black cap, proceeded to pass sentence of death on the prisoners.  After an anxious and laborious investigation, the offended laws of the country had found them guilty of foul and deliberate murder, marked by greater atrocity then he ever recollected.  When the poor old man Stewart looked up, and pitifully begged for mercy, their wicked hearts did not relent, but went on in their horrid work of destruction.  Their disgraceful end would be marked by public execution.  They had but a few short hours to live, and he beseeched them to use every moment in imploring that mercy from an offended God, which they had so recently denied to their victims.  The sentence of the Court was, that they should be taken back to the place from whence they came, and on Monday morning next, be hanged at the place of execution by the neck, till they are dead; and then their bodies be given over the public surgeons for dissection and anatomization, and the Lord have mercy on their souls!

This trial occupied great time, and did not close till half-past ten o'clock at night.[2 ]



[1 ] See also Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3275, vol. 92, p. 51; Sydney Gazette, 11 February 1834.

See also Australian, 10 February 1834, stating that the prisoners were defended by G.R. Nichols.

[2 ] The Sydney Gazette, 11 February 1834, reported that the court room ``was crowded to excess during the trial of these wretched men, who betrayed not the slightest symptoms of emotion, neither when the verdict was announced, nor the awful sentence delivered.  A feeling of horror seemed to pervade the minds of every one present, during the details of the inhuman deed."

This may have been the man whom Roger Therry wrote about.  A man named Cavenagh had often been flogged.  When the judge asked him whether there was any reason why death should not be passed on him, said ``if I have been bad, your honour, what has been done to make me better?" (R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, 1863, reprint Sydney University Press, Sydney, 1974, 43.)

Cavenagh and Sergeant were hanged on 10 February 1834: Australian, 10 February 1834; Sydney Gazette, 11 February 1834.  Chesterfield was respited due to new information from the scene of the crime.  He was hanged on 13 February 1834: Sydney Gazette, 15 February 1834; Australian, 14 February 1834.

James Farrell was convicted as an accessory after the fact of this murder, and sentenced to transportation for life: Australian, 17 February 1834; Sydney Gazette, 18 February 1834.

Published by the Division of Law, Macquarie University