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

R. v. Clarke [1834] NSWSupC 50

murder, by constable - constable, prosecution of - criminal procedure, statement by defendant - women, judicial attitude towards - Female Factory

Supreme Court of New South Wales

Dowling J., 2 May 1834

Source: Sydney Herald, 8 May 1834[ 1]

Thomas Clarke stood indicted for the wilful murder of Fergus Cunningham, by shooting him with a pistol, loaded with powder and ball, on the 22d March, at Paramatta [sic].

The first witness called was

William Davine. - Remembers the 21st March last; was coming from Sydney, in company with the deceased, who had a dray, of which he was the owner, laden with stores; we slept at Tom Kain's that night, and started on the road on the following morning between 9 and 10 o'clock; there was also a man named Jerry Noonun, who had a horse and cart, besides others; I was riding on the cart, when about a-quarter of a mile from Kain's, the cart upset, in consequence of coming in contract with a hillock on the road side, I fell out and was much injured; at starting, we had had a glass of run each; the deceased and Noonun called in at a public house at Duck river Bridge, but I believe they had nothing to drink; they remained about 20 minutes; on coming to Lacey's on the top of the hill, I heard Cunningham say that the people of the house once did him a service, by obliging him with some coppers to pay the toll, and he would spend a few shillings; we all went in there; when we had been in about three-quarters of an hour, I asked the girl to allow me to lie down on the form, as I had fallen and hurt myself; I lay down and fell asleep; I was awoke by the servant, who came in, and said, `You are a pretty fellow to lie there asleep while your comrade is being shot by a constable at the door;" I went out and saw Cunningham lying on the ground; there was a hole through his face, near the corner of his eye; there was a hole, also, in his hat; his breath came violently, I did not see the prisoner until I saw him at the inquest; the deceased, Cunningham, was an able bodied man, between 30 and 40 years of age.

Brown Favell, Esq. - I am a surgeon, and reside at Parramatta; I was riding along the road on the day in question, when I saw deceased lying on the ground opposite Littleton's public house; I was called to examine the wound of the deceased; I was informed by the persons that deceased had not been dead more than two minutes; when I first saw the body, there was a wound through the head, which penetrated the brain; it had the appearance of a gunshot wound from a large ball.

Mary Hough. - I reside near the old turn-pike road; I was ironing at my window when I saw the prisoner pass by and go into the public house; he afterwards came out and stood with his back against the front of the house; Cunningham came out also and went towards his bullocks; he had a small piece of batten in his hand, and laid hold of his bullocks' horns in a playful manner; he then turned round and went towards the house; he met the prisoner, and they stood face to face for the space of a minute; Cunningham flourished the batten, but not in a striking position; the length of the batten is from my elbow to the tip of my finger; prisoner held up his arm with the pistol and let it off in a moment; Cunningham dropped on the ground, and the prisoner stepped forward towards the corps, and put his hand up to the back of his head; I swear the deceased never struck him in my sight; I saw the whole transaction; I waited a moment to see if the prisoner would run; when I went out and said, what have you done you villain, you have murdered the man; I told the woman of the house of the transaction, and said he ought to be secured; at that time he did not complain that deceased had struck him; deceased did not strike him in my view; from the time they came out of the house until Cunningham was a dead man, did not exceed five minutes; the distance from the public house to my window is not more than twenty yards; the window was shut, but the door was open; there could not have been any high words or I must have heard them; I saw the prisoner at the public house in the morning in charge of women.

Cross-examined by Mr. Stephen. - I swear the deceased did not strike the prisoner; I might have the flat iron in my hand during the time; I never took my eye off them; the deceased held the batten like a child; prisoner held up the pistol instantly and fired it off; they were only arms length from each other at the time; did not see the batten in the hands of the deceased when he went to the bullocks.

By a Juror. - The window is a glazed window, and was clean on that occasion; I saw no blows struck; I have three children, my eldest girld is 13 years old; the part of the road on which I reside is not particularly dusty; the prisoner did not attempt to run away; if there had been loud words I must have heard them.

Henry Bell. - I am servant to Mr. Lacey; my master and I were at the Irish Arms, when this occurrence took place; I saw the deceased there; he was neither drunk nor sober; he was capable of knowing what he was doing; he was called out to go after his bullocks which were going astray; having brought them back and secured them he returned to the house; all that I saw him drink was a pot of beer; he went out again some time afterwards; he had not been absent above five minutes when the report of a pistol was heard; I ran out to learn the cause, and saw the prisoner in charge of Mr. Lacey; he ordered me to lay hold of the prisoner, and take the pistol out of his hand; a constable was sent for, and the prisoner was delivered up to him; I saw the deceased lying on the ground; the prisoner did not say how it had happened.

Cross-examined. - A piece of batten lay beside the deceased, it was better than a yard in length, three inches in breadth and half an inch in thickness; I saw the prisoner in the house previous tot he accident; I was in the kitchen; some quarrelling might have happened, but if there had been loud words I must have heard them; I do not remember seeing Mrs. Hough there; she might have been there; I know her house; I was not aware that deceased had been quarrelling; I was acquainted with him; he was a quiet man not given to drink; whilst in company he was quiet man not given to drink; whilst in company he was quiet and very sociable.

Catherine Cavenagh. - I am an assigned servant to Mr. Titterton; I saw deceased at my master's house on the morning he met his death; he came between 9 and 10 o'clock, and was in the house about two hours and a half; I first saw him after cleaning the parlor and dusting the furniture; I was placing some chairs near the parlor window when I saw deceased coming from his bullocks towards the house; the prisoner walked hastily towards him, and as deceased was turning round the prisoner held up his pistol and shot him.  The window was up; the prisoner turned round and looked at deceased as he lay on the ground and put his hand to the back of his neck; he still held the pistol in his hand; the window was on the ground-floor; I heard no words - no previous quarrelling; deceased was about a yard and a half from the prisoner when he fired; they might have had words but I did not hear them; I did not take particular notice whether deceased had batten in his hand; I did not see deceased offer to strike the prisoner; I had been about four weeks in Mr. Titterton's service at that time; I was never in the custody of the prisoner; I did not see the prisoner drink any thing in the house; he was not drunk when I saw the man fall; I ran to the door and said to the prisoner, oh! you are an unlucky man; I said so on account of his having killed the man; I told the same story at the Inquest that I do now; I had first come into Mr. Titterton's from the Factory, where I had been sent from Mr. Morris's for one month to to the third class; the prisoner did not attempt to escape, because there were too many persons about him to let him escape; it would have been of no use for him to run; I saw Mrs. Hough on the road; did not see the batten in the hand of the deceased when he went towards the cattle; did not see Clark drunk; had a glass of peppermint; took half a pint of rum from the kitchen into the bar, saying he would take it another time; the prisoner did not hesitate, but rose the pistol and shot deceased, the prisoner was not more than two yards distance at the time; if he had not had his finger on the trigger it could not have gone off; he walked up quickly to deceased; after deceased fell, the prisoner put his hand at the back part of his head, but did not complain.

Thomas Lacey, I live next door to Mr. Titterton's Public-house, and was in there on the occasion in question, I sat with my back towards the front; when I heard the discharge of the pistol, I thought it was some traveller discharging his piece, in order to reload it; I went out and saw deceased on the ground, the prisoner was standing by him, with a pistol in his hand; I accused him of murdering the man, and detained him till a constable took him into custody; he seemed much agitated, and made no resistance; I had seen the deceased before, but I do not remember to have seen the prisoner before that morning; I heard that he was a constable who had women in charge; there was a man named Maloney who had offered the women something to drink, he is an irritable character.

Sir John Jamison, Knt. - The deceased had been my assigned servant from April 1831: he was highly recommended by Major Innes, of Port Macquarie; I always found him to be a remarkably good man, so much so, that I allowed him indulgences enjoyed by no other man on my estate; during the time he was in my service, he maintained the character of a peaceable, quiet, sober man.  Mr. Stephen in his cross-examination put some questions to the witness, tending to degrade the character of the deceased, but was stopped by His Honor, who observed, that the moral character of the deceased could not be gone into, though he were the worst character in existence, it was no reason why he should be shot.  Examination continued: the deceased lived close to my house, I always entertain strong feelings in favour of well conducted servants - I was not at the Coroner's Inquest; when I saw the prisoner I asked him what caused him to commit the act?  I do not remember the answer he returned; I do not know of my servants being at public-houses - If I had heard from good authority that the deceased was in the habit of getting intoxicated, I should have believed it - I know of his being flogged at Parramatta in September last, but I am satisfied that the punishment was most unjustly awarded by the magistrate at that place.  His Honor objected to a continuation of enquires as to these matters, as tending to involve a question as to the magisterial conduct of Captain Wright, he had only acted on the evidence before him unnecessarily.  The case for the prosecution here closed.

The prisoner stated in his defence, that being a constable of Liverpool District, four female convicts under sentence for the Factory, were put under his charge, for the purpose of being escorted to the Factory; on the way thither he called into the Irish Arms for the purpose of leaving a bonnet belonging to one of the women, a constable's wife, which she requested him to take back with him on his return; when he went into the house, the deceased and other persons were there drinking, one of them offered the women half a pint of rum, but he objected to their having it, being against his orders; the men seemed very angry with him for his refusal, and after some altercation, he departed with his charge for the Factory; on his return, he had to call for the bonnet, and when near the house he saw the prisoner coming towards him, he had a stick in his hand, and appeared to be intoxicated; he tried to avoid him, but he pushed up against him, called him an old scoundrel, and gave him a kick, striking him at the same time a blow with the stick; seeing him so violent and not wishing to have any further quarrel, he tried to appease him, and begged him to go away, but received a blow on the head with the stick, when he (the prisoner) put up the arm in which he held the pistol, to save himself, when deceased made a blow at him again, and the pistol went off; he could not say whether it went off by being struck with the stick, or whether in his agitation his finger had come in contact with the trigger; he most solemnly averred it was accidental; the deceased was a powerful man, nearly six feet high, and upwards of fifteen stone weight; and he appealed to the Jury whether it was reasonable that he should so deliberately as had been stated by the female witness, go and destroy a fellow creature, who was quite a stranger to him; he had used his utmost endeavours to pacify him, but without effect; there was no person present during the melancholy transaction, or it would have been prevented.  His Honor observed that the statement of a prisoner could have no weight against that of a witness on oath; but where it was found consistent with other evidence, and supplied certain links in the chain of circumstances, it might be fairly taken into consideration for his benefit.

Several respectable witnesses were called who gave the most favourable testimony as to the character of the prisoner for humanity and peaceable conduct.

His Honor summed up the evidence, remarking that from the very nature, temper, and habits of women, too great caution could not be exercised in weighing their testimony in a matter of such importance as the life of a prisoner; they were naturally prone to give a high colouring to such transactions; the evidence for and against the prisoner were feelingly commented on by His Honor, who left the case in the hands of the Jury.  The Jury after an absence of half an hour, returned a verdict of Not Guilty.



[1 ] See also Sydney Gazette, 6 May 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 27.

Published by the Division of Law, Macquarie University