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

R. v. Vials [1834] NSWSupC 92

murder - confession - self-incrimination, caution against - Airds

Supreme Court of New South Wales

Forbes C.J., 22 August 1834

Source: Sydney Herald, 24 August 1834[ 1]

Before His Honor the Chief Justice, and  Jury of Civil Inhabitants.

William Vials stood indicted for the wilful murder of John Scott, at Airds, on the 31st May last, by striking him on the head with a stick, thereby inflicting sundry wounds and contusions, of which he then and there died.

The Solicitor General laid a brief statement of the case before the Jury, which he submitted to them as one of circumstantial evidence, but which they would find, with the aid of the positive testimony which he would adduce, sufficient to carry the fact satisfactorily to the prisoner.

The Prisoner being unprovided with Counsel, Mr. Sheehy humanely consented to appear professionally in behalf of the prisoner.

William Robert Kenney examined - I am a Surgeon; I knew the deceased John Scott in his life time; I saw him dead in the bush, within a few hundred yards of my residence, about the end of May last; I saw the place where the body was found - it was a small hollow place, around which, for the distance of twelve or fifteen feet, there were foot marks and marks of blood, altogether affording strong proofs of a violent struggle having taken place; in my opinion, his death was occasioned by an extensive fracture of the skull; there was a wound above the left eye, and also on the left side of the back part of the head, which penetrated the substance of the brain, which injuries, if unattended to, were sufficient cause death; the upper and lower jaws were dreadfully fractured; there were various minor wounds and contusions on the head, face, and several parts of the body; I should suppose, from what I saw, these wounds were occasioned by violent blows from a bludgeon; I saw a large heavy stick near the body, part of a sappling, which appeared to have been dressed for the purpose - the bark had been stripped off, and it was covered with blood; this I saw on the 31st May, the body appeared to have been dead scarcely twenty-four hours.  The place where the body was found is called Smeaton, and is situated in the district of Airds; when I first saw the body, it was between the hours of twelve and one o'clock; I knew the deceased by sight; several of the men belonging to the road party worked on the road near my house, whom I had occasion to pass - the deceased was of the number; I had no difficulty in identifying the body.

Cross-examined. - The ground where the body lay presented an appearance as if two persons had been fighting; the stick I saw on that occasion, was a heavy stick - there was nothing peculiar in its appearance, further than its having been cut in something of a fanciful manner, as if to secure it in the hand; it appeared to have been recently cut.

By a Juror. - It was not broken; it was sufficiently strong to inflict such a wound as appeared on the head of the deceased; the bark which had been left on it appeared broken, as if it had been struck repeatedly against something hard.

Joseph Philpots. - I am attached to No. 3 road gang, situated between Campbell Town; I knew John Scott, he was a tailor, and belonged to the same party; I knew the prisoner, he also belonged to the party, but one half of it was detached, and at a distance of about three miles from the branch to which I belonged; I last saw the deceased alive, near the huts of our party; a man, named John Houghton, came to me and told me that deceased wanted to speak to me; I went and found him at a short distance in the bush, standing near a fire; I saw no one with him when I first went; I asked him where William Vial was; the reason of my going to deceased, Houghton told me that the prisoner and deceased had absconded from their party, and wished to have some provisions; I carried a piece of bread, which I gave to them; Vial appeared in a few seconds after; I went and gave the bread to him, the deceased sat down and partook of it, I did not remain more than three minutes with them; John Scott wore a straw hat; Vail had an old black hat, which had been a beaver; the deceased had his hat on his head when I went there; I don't remember whether it was taken off his head or not while I was there; I don't think I should know the hat again; I cannot say whether I had it in my hand or not on that occasion; I know it was a new one; I had never seen it before; there was a narrow black ribbon round the edge of it; it was on a Thursday, a littler after dusk; that was the last time I saw him alive; I saw him dead on the Sunday morning following, lying about three or four yards from the place where the fire had been; I did not see Scott with a stick in his hand on Thursday evening, but Vial had one in his hand; it seemed to be a heavy stick with bark on it; I did not see Vial again before Sunday morning; I heard the men say the body was there and I went to see it; there was a black hat near the body; I can't say what hat it was; it was like the hat which Vial wore on Thursday evening; I saw blood around the place; there appeared to have been a great deal of blood; I saw the stick the Constables had after the body was found; there was blood on it; I took very little notice of the stick Vial had in his hand; I did not see the body until after the Constables came; it was between ten and eleven o'clock; I saw Vial on Monday morning in the same place; it is not easy to distinguish one straw hat from another when they are new; I will not swear that I did not take it in my hand; I cannot say that the hat produced at the inquest is the same.

By a Juror. - I gave the bread to the prisoner, and the deceased sat down and partook of it; I cannot say that the stick the prisoner had in his hand on Thursday evening was the same as I saw at the inquest; the hat found near the body was certainly like that worn by the prisoner; I can make straw hats, but I cannot tell that it was the same hat; I do not know whether it was split or whole straw, as it was dark, except the light of a small fire.

Cross-examination continued. - I never knew or heard of any previous quarrel between the prisoner and the deceased; a man named Patrick Shepherd first informed me that the body was in that place.

Patrick Shepherd, examined. - In May last I belonged to No. 3 road gang; I knew the prisoner and the deceased, John Scott, they belonged to a detached part of the same gang; I had a bad leg, and had been to the residence of a settler who lives about half a mile from our gang for some milk to make a poultice; on my return I saw a man lying on his hands and face, which I apprehended to be a bushranger, and told some of my hut-mates to go and see him but they refused, and I then went and informed my overseer, who accompanied me to the place, and desired him to get up, but not receiving any answer, he turned him on his back, when his face presented a shocking spectacle; a man named Houghton told the overseer, that that was the tailor, and going to a little scrub a few yards distance, pulled out a short waddy, and an old black hat covered with blood; the deceased had a shirt, waistcoat, trowsers, and one boot on when found.

Cross-examined. - I came to the Colony in November last; Houghton instantly recognized it as the body of Scott; the stick I saw was about the length of a walking-stick; one branch of the party is situated at the distance of about five miles from that to which the prisoner and deceased belonged; I frequently saw the prisoner and deceased before, they always appeared on friendly terms together, they both bore a very good name in the gang, we were all surprised to hear that the prisoner was taken for the Murder; I was present when the prisoner was brought to look at the body, he appeared as he usually did.

By a Juror, The hat and stick found by Houghton were not much concealed, they were behind a small bush near the body.

William Fray, I am a special constable on the Estate of Mr. Mowatt; I apprehended the prisoner a day or two before I heard of the body of John Scott being found; it was found on Saturday night, the prisoner came to one of our men, to whom he wished to give himself up, the man would not take him but called to me, and I took him to the watch-house; when I first took the prisoner, he was about half a mile from where the body was found; I asked him what made him take to the bush? but he would not tell me; he said he thought there was something else against him besides taking the bush; I asked him what it was? but he would not inform me; he said there was time enough for that; he said there was another man in the bush with him, but he thought he was taken and put into Campbell Town gaol, but he would not tell me who it was; when I took him he had a straw hat on; I have him into the custody of the chief-constable.

Cross-examined, I knew George Harrington; that is the man to whom he wished to give himself up; he was acquainted with Harrington, they came to this Colony together; I am positive he said there was something else against him; he had a straw hat on when I took him, I should know that hat again.

Robert Burke, I am chief-constable of Campbell Town; I produce a hat, and a stick which was found near the body of the deceased; the hat was found on the prisoner's head; the prisoner was brought in custody of Fray, as a bushranger, and was punished and returned to his gang; he was again apprehended in the evening, and lodged in custody on suspicion of murder; the body of the deceased was found on Saturday evening.

Robert Stewart, I am Police Magistrate of Campbell Town; I received information that a body was found at seven o'clock of the evening of the 31st May, I afterwards saw the body on the Monday morning following; I saw the prisoner a little before eight o'clock on the evening on which the body was found; I proceeded to the prisoner's camp and apprehended him in consequence, with the assistance of the chief-constable; I told him that I should put certain questions, but cautioned him that he was not bound to answer them, that I would commit his answers to paper, which would be produced against him, I therefore cautioned him not to say anything that might criminate himself; the prisoner had a straw hat on, on which I observed marks of blood, which I now see; they appeared to be fresh at that time; I asked him when he had last seen Scott?  He answered, at this time on Thursday evening last; where? at the back of the old camp, on the Cowpasture Road; was any one in your company? no; did you see any one?  I saw several of the prisoners of the gang about six o'clock, but they did not see me; is that your hat, does it belong to you?  I made it, but it belonged to Scott, mine was a black hat, which Scott took for the purpose of disguising himself with, as he was going to commit a robbery, he left me his; I never saw him afterwards; I waited at the place where he left me until ten o'clock on the day following.  Several other questions and and answers were read from the document in question, in the course of which it appeared that the prisoner stated, that deceased had a stick, which he took with him when he went away, the prisoner also taking his stick along with him.

Cross-examined, I gave testimony at the Inquest; I did not read my evidence from the document produced?  I merely refreshed my memory by occasionally referring to it, I have a recollection of the circumstances without the memorandum, but not of the distinct questions and answers; there were three or four distinct traces of blood on the hat, which are still discernible.

Augustus Hayward, I am Coroner for the district of Parramatta, since the death of Mr. Horsley, I have had his duties also to attend to; I held an Inquest on the body of John Scott, the prisoner Vial was present; I recollect Mr. Stewart being examined on that occasion, he gave his testimony orally, occasionally refreshing his memory, by a reference to the document produced; the prisoner was asked if he had any questions to put to Mr. Stewart, he declined putting any questions, and admitted the statements to be correct.

Fray recalled, the prisoner's person presented no marks of violence when I took him into custody; there was no blood on him, his trowser appeared to have been washed; he did not appear to have been fighting.  The case for the prosecution closed here.

Mr. Sheehy submitted that the written document produced at the Inquest by Mr. Stewart, should not be admitted as evidence.

The Chief Justice observed, that although it was not the proper course for magistrates to adopt by examining a prisoner in the way of question and answer, yet, as the Magistrate had not made the examination a judicial one, but merely for the sake of reference, and as due caution had been given to the prisoner not to say anything which might criminate him, he thought it might be received as oral testimony if he could see that there had not been held out in consequence, he should reject it; Magistrates should not seek to elicit statements in that way, though he was not attributing any blame to Mr. Stewart, he had no doubt acted from the best of motives, the plain statement of the prisoner was all that was required to be obtained.

The Solicitor-General observed, that he wished the magistrates would make it a practice in all cases to take down the statements of prisoners in making their defence, it would, in a material point of view, assist in furthering the ends of justice; he regretted to observe, that in many cases it was not attended to.

for the defence.

Thomas Howarth.  -  I am Overseer of the Road-party to which the prisoner and the deceased belonged; I knew the deceased; he joined the party in February last, and lost his life in May; the prisoner and deceased were always on the most friendly terms together; they were like two brothers; where one was there the other was sure to be; they took the bush once before together; I do not consider the prisoner to be a bad tempered man; I never saw any thing about his conduct which would give rise to such an opinion, I considered the contrary; they absconded on the 29th, and the body was found on the 31st May; I had occasion to go to Campbell-town, where I found the prisoner in custody, he had been apprehended by Mr  Mowatt's overseer for absconding; he was punished for that offence, and he returned to the gang with me; I asked him where Scott was, he said he thought he had been apprehended and was in Campbell-town jail; I did not know of his death at that time; he said he went to rob a house, and he never saw him afterwards; the prisoner said he remained at the fire, when I heard that the body was found, I called the prisoner into my hut and handcuffed him; I put some questions to him about the murder of Scott, but he said he knew nothing of it; he said he went away from him for the purpose of robbing some house on the hill, but he did not name the house, and he waited at the fire expecting his return; he did not say why they did go together on that occasion.

Cross-examined - The deceased was a much stouter man than the prisoner, about the same age; Scott was not to my knowledge a quarrelsome man.

His Honor summed up the evidence, in the course of which, he remarked, that circumstantial evidence, when complete in all its parts, was frequently more conclusive, satisfactory and safe than positive testimony, the latter frequently being subject to perjury, from the effect which the former was free.  His Honour described the line of distinction to be drawn between the crime of murder and that of manslaughter, leaving it to the decision of the Jury how the evidence bore on these charges.  The Jury retired about two, and came into Court about six, returning a verdict of Guilty of Murder when sentence of death was passed on the prisoner accordingly, to be carried into effect this morning.[ 2]



[1 ] See also Sydney Gazette, 23 August 1834 (calling the defendant Viall); and Australian, 26 August 1834 (calling him Ogil).

[2 ] The Sydney Gazette, 23 August 1834 reported that the prisoner ``both during the trial, and whilst receiving the awful sentence, exhibited the completest apathy."  The Australian, 26 August 1834 said that in sentencing him,  Forbes C.J. ordered that his body be given for dissection, and stated that he had no doubt as to the prisoner's guilt, although in his charge to the jury he had left that to their consideration.

In this, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.  By s. 4 of the Act, the judge was given power to stay the execution; for an example of that, see R. v. Fitzpatrick and Colville, 1824.

Published by the Division of Law, Macquarie University