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

R v Cassidy and Bagley [1835] NSWSupC 61

assault - Maitland - convicts, chain gang - attempted murder - emancipists, right to sit on jury - felony attaint, right to sit on jury - trial by jury, judges of fact and law

Supreme Court of New South Wales

Burton J., 3 August 1835

Source: Sydney Herald, 6 August 1835[1 ]



Monday. - The criminal department of this court commenced its proceedings this morning; the calendar exhibits one hundred and twenty-six cases of crime for trial.

Before his Honor Mr. Justice Burton, and a civil jury.

Patrick Cassidy and William Bagley, stood indicted for assaulting Hugh McIntyre, with intent to do him some grievous bodily hard, at Maitland, on the 28th of April last.  It appeared that the prosecutor was overseer of the chain gang to which the prisoners were attached, and were employed in the quarries.  On the day laid in the indictment, as he entered the quarries, the two prisoners, each having a pick handle in his hand, struck him violently about the head, which knocked him down; the blows came from behind; when on the ground, he saw the prisoners near him with the bludgeons in their hands; there had been no previous quarrel with the men; the assault was wanton and unprovoked; prosecutor had only had charge of the gang nine days when the assault took place.

A corporal and private of the 4th Regiment, on duty at the quarries, had their attention called to the circumstance by the cries of the prosecutor; he was then on the ground and the prisoners were near him, with the bludgeons in their hands; when the prosecutor gave the alarm by his cries, the remainder of the gang ran towards the spot; the corporal's impression was, that they were going to join the men who had made the assault; he desired them to stand back or he would fire upon them; they did not approach; the distance from which he first saw the men was about twenty-five rods; he could not at that distance recognise the prisoners; on arriving at the place where the overseer lay, they found him bleeding profusely from a wound in his temple; the prisoners who were near the spot were secured, and the prosecutor was conveyed to the hospital.

Dr. Brooks, in charge of the hospital at Maitland, remembered the day on which the prosecutor was brought to the hospital in a state of insensibility; he had a severe wound on the left side of the forehead above the temple, of about an inch in length; he seemed to have had other blows in various parts of the body; he was considered in danger for three days after being received; it was ascertained that no fracture had taken place.

A witness was now put in the box who was in the gang, under sentence for nine months, at the time the assault took place, but who left it on the 9th May.

George Lang examined, remembered the 28th April; was at work in the same part of the quarry as the prisoners when the overseer was assaulted; saw him lying on the ground, but did not see the blows struck; did not see by whom; the prisoners were near him when the corporal ran towards them and stabbed Cassidy with his bayonet; Cassidy threw up his hands and told him he surrendered; witness told the corporal not to ill use the prisoners, as they surrendered; there were a good many men working in the same part of the quarry at the time.

By the Court. - Did not know the reason of the assault; heard no conversation amongst the men as to who should commit the assault; saw no lots drawn; the overseer was not a favorite among the men; he had been in the habit of taking a good many men to court; does not think he took the prisoners to court; he had been there but nine days in charge of the gang.

By the prisoners Cassidy. - He frequently took men to court whether right or wrong.

John Stephens, also attached to the chain gang at the period, spoke to the same effect; saw the assistant overseer standing on a bank above Bagley's head with a large stone in his hands, which he was about to throw on him, when witness desired him to desist, saying it was a shame when the man had surrendered; for this he was taken to Court, and received on hundred lashes, [this was not strictly correct; the witness having used mutinous expressions on that occasion, was taken before the Magistrates, and sentenced to twenty-five lashes, but having told a lie in his defence to the Magistrates, in which he persisted, tending to cast an imputation of the overseer, he was sentenced to an additional seventy-five lashes.]

His Honor, in putting the case to the Jury, in the first place directed their attention to the evidence, as to how far it fixed the charge laid in the indictment on the prisoners at the bar; if they could arrive at the conclusion, that the blows had been inflicted by the prisoners, they would consider, taking all the circumstances into their view, whether, in the event of the death of the prosecutor, it would have amounted to murder; on this point he would direct them, that the evidence fully established that fact; there was a total absence of any of those circumstances which the law views as a justification or mitigation of the crime of murder; that the prosecutor did not die of the wounds so inflicted, offered nothing in extenuation of the guilt of the prisoners; for the law held, that though the completion of the offence was prevented by the interposition of a superintending Providence, still they stood in the same situation, as to moral guilt; the character of the offence then depended on the consideration, whether the crime could be viewed as one of murder if the prosecutor had died; the law presumed the animus in the act; what was the intention of a man who took a loaded pistol and fired at another; he who with a knife or other deadly instrument plunged into the body of a fellow creature, or with a heavy bludgeon inflicted a blow on his head; these were instruments having a tendency to destroy life; that they sometimes fail to do so is dependent on the will of Divine Providence.  The information charged one of the prisoners as being present, aiding and abetting, but the law viewed them as equally guilty of the offence.  His Honor observed that, from the mystery in which the cause of the assault appeared to be involved, he felt induced to put a question to the witnesses for the defence, which had been answered in the negative; the prosecutor had rendered himself obnoxious to the gang by having taken them before the magistrates for offences for which they received punishment; yet it did not appear that the prisoners had been of the number, the idea, therefore, readily suggested itself that a conspiracy had taken place, in which it was arranged that the prisoners should inflict the assault, but there was no proof before them to that effect; the act still stood unexplained, the witnesses for the defence who were at work in the part of the quarry where the assault took place, deny having seen the blows struck, but it appeared scarcely possible that a circumstance of that nature could have occurred without having been seen by the whole of the party.  His Honor recapitulated the evidence and left the case to the jury, who retired for about an hour, and returned a verdict of Guilty, and the prisoners were remanded.[ 3]



[1 ] See also Sydney Gazette, 4 August 1835.  For the notes of the trial judge, see Burton,Notes of Criminal Cases, State Records of New South Wales, 2/2419, vol. 18, p. 100: both prisoners were ``bond," that is convicts, at the time of the offence.

For another case of assault by a member of a chain gang, see R. v. GibbonsSydney Herald, 12 November 1835; and see Sydney Herald, 23 November 1835; Australian, 24 November 1835; Sydney Gazette, 26 November 1835.  See also R. v. DaleySydney Herald, 12 and 23 November 1835; Sydney Gazette, 10 November 1835.

[2 ] This title may be related to the Sydney Herald's editorial on 30 July 1835, where it berated Governor Bourke and Forbes C.J. for their advocacy of ``Convict Juries."  The Herald's fierce opposition to emancipist rights, and with it, to Forbes C.J., was becoming apparent.  See alsoSydney Herald, 30 July and 24 August 1835; Australian, 28 August 1834 (on juries as judges of both fact and law); Sydney Herald, 9 November 1835 (letter to editor); Australian, 5 May 1835; Sydney Herald, 7 May 1835.

This case was tried before a civil jury: Sydney Gazette, 4 August 1835.

On 21 June 1835, Governor Bourke wrote to the Secretary of State about the problems of jury trials in criminal cases: he was seeking a response to his request for instructions on the subject.  He had found it necessary to renew the 1833 Jury Act due to the lack of guidance from London.   The question whether emancipists could sit on jury was dividing the colony, Bourke said.  The Legislative Council was opposed to it, but it was dominated by what he called the Emigrant Party (that is, the exclusives).  The Council agreed to a renewal of the previous Act, however, pending instructions.  Bourke said that he still favoured jury trial, as did the great majority of the people.  If the Council refused to allow emancipists to sit on the juries, he said, it would be better to revert to military juries until ``a Legislative Body, representing more fully the opinions of the People, shall be in readiness to decide the question".  Source: Historical Records of Australia, Series 1, Vol. 17, pp 741-742. Glenelg wrote to Bourke on 10 December 1835, explaining that the delay was because the colony's imperial Act for the administration of justice was under consideration: in the meantime, he approved of the renewal:Historical Records of Australia, Series 1, Vol. 18, pp 226-227.  On the draft bill for a new constitution, see Bourke to Glenelg, 26 December 1835, Historical Records of Australia, Series 1, Vol. 18, pp 246-250, and see pp 286-289.  For the views of Forbes C.J., expressed after he returned to England in 1836, see Forbes Papers, Mitchell Library, A 745 (Petitions and Reports).  The latter includes his history of the legal change to trial by jury in the colony.

On civil juries in criminal cases, see also Australian, 24 February 1834; 15 March 1834 (twice).  Viscount Goderich told Governor Darling, in a despatch dated 29 March 1831that it was not yet the time to introduce civil juries in criminal cases; he agreed with Darling on the point (Historical Records of Australia, Series 1, Vol. 16p. 223).  The first civil jury in a criminal case was in November 1833: Australian, 18 November 1833.

[ 3] Cassidy and Bagley were sentenced to death on 19 August 1835: Australian, 25 August 1835; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2419, vol. 18, p. 113.  They were executed: Australian, 4 September 1835.

Published by the Division of Law, Macquarie University