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

R v Kilmartin [1835] NSWSupC 40

murder - Botany - sexual assault on man

Supreme Court of New South Wales

Forbes C.J., 8 May 1835

Source: Australian, 12 May 1835[ 1]

Friday. - Before his honor the Chief Justice and Civil Jury.

Patrick Kilmartin was charged with the wilful murder of James Hamilton on the Botany-road, on Friday the 24th of April last.

William Christie, wardsman in the police, knew late James Hamilton - saw him last on 24th April, about 11 o'clock dead on the Botany-road, he had a bruise on the left side of the neck, apparently by strangulation, or the mark of a knee - the body was naked, except a pair of socks on the feet.  I observed a long cut on the belly and a cut on the penis; I was ordered to take the prisoner in charge; I know prisoner, he was an assigned servant to Mr. W. Dowling; he was reported as a runaway; I apprehended him in Denman's booth on the Botany road; the booth was about 50 chains from where I saw the body next day; when I apprehended the prisoner he had on a blue jacket and waistcoat, which I never saw upon him before; I took a bundle from him, after sending him in charge to Sydney I sent for him back again to Duncan's booth, thinking he had robbed some one; I made him pull off his jacket and waistcoat, having some knowledge of the jacket and waistcoat, I asked him how he came by them, he said they were his own; I did not take the hat which prisoner had on until the following morning, Friday; J. S. Hamilton was written in the lining of the hat; the hat produced is the same prisoner had on; I knew the prisoner well, and he knew me; upon finding these clothes, I thought it best to send for deceased's wife; when I took the prisoner he had a bundle of clothes with him, he told me upon asking him, that he was bound for the bush; I knew Hamilton wore a jacket much like this; I knew it because it was a coat cut down jacket; 1 pair trowsers, 1 pair drawers, 1 pair boots, 1 shirt, 1 waistcoat, were tied in the bundle; I took from his person 1 black handkerchief and pad, jacket and waistcoat; I sent for Mrs. Hamilton on Friday 24th, she came; I asked her where her husband was, she said she had not seen him since Wednesday 22d; I asked her if she would know any of her husband's clothes, she recognised all the articles except 1 waistcoat, handkerchief, 2 laded knife, and cross barred handkerchief in which the clothes were tied; I took the knife from prisoner's pocket; the case knife produced was given up to me by a boy who follows Joe Love, a blind man about the town, there was blood upon it, and fresh when delivered up to me.

Cross-examined by prisoner.  You told me when I apprehended you, the clothes were your own, I was first up to you, and apprehended you.

By a jury.  The clothes fitted prisoner very tight.

Sarah Hamilton, widow of James Hamilton, saw my deceased husband on Wednesday, the 22d last, he was going to the races; I know the dress he had on there; the jacket, waistcoat, trowsers, drawers shirt, hat and boots were his, on which he was dressed on Wednesday; I saw my husband dead when the jury sat upon him; I did not know prisoner.

James Stewart.  I am a surgeon; I was called to examine a body on the 25th April, by the Botany-road; deceased's name was Hamilton; I found the body naked except a pair of socks; I observed a mark of injury on left side of neck, and on the left jaw, appeared to have caused by pressure by some heavy body on those parts; there was a wound in the abdomen 6 inches in depth, 2 inches in breadth; 1½ inches depth, sufficient to cause death, but not immediate; I observed an injury in the private member, apparently as if an attempt had been made to sever it from the body; I am of opinion that strangulation was the cause of death, and that the wounds were inflicted before vitality had ceased; I did not open the head to examine the brain; I consider the injury on the neck quite sufficient to cause strangulation; the pressure on the neck caused respiration to be intercepted; the knife produced would inflict such wounds as I saw on deceased; the deceased certainly came by a violent death; the pressure of a strong man might produce that death.

John Brown - I keep the Edidburgh Castle, corner of Bathurst-itreet [sic]; I had a booth on the Race Course, during the Sydney races, on 22d April; I knew the deceased, James Hamilton, in my booth on 23d April in the evening, the prisoner was with him; I saw them drinking together, Hamilton had been drinking, prisoner called for the liquor, they left my booth together, about 7 o'clock in the evening, prisoner proposed going, deceased rather wished to stay; prisoner him to go, and they went in company, they did not say where they were going; I supposed they were going to Sydney; the booth was about 3 miles from Sydney; prisoner was dressed in a blue shirt and no jacket; and I think a straw or cabbage-tree hat, not a black hat; deceased had on a blue jacket and black hat; after they left my booth, I did not see the deceased; on the following morning I heard of his death.

Cross-examined by prisoner - When you asked for a gill of rum, I was near to you and barefaced you; afterwards you pressed me and I ordered my boy to give it to you; I did not see you give deceased any rum.

Cross-examined by a Juror - I am positive it was a blue shirt prisoner had on; they did not remain in the booth more than half an hour.

Richard Cainburn - I am a constable in the Sydney police; I gave constable Christy information about bringing the deceased body of Hamilton; I saw about 10 o'clock, on Friday morning, on one side of the Botany Bay; it was naked, except a pair of socks; when I found it; I covered it with bushes.

John Love.  I was with Andrew Goodwin on the morning we saw the dead body; it was 7 fathoms from the road, Goodwin found a knife, he gave it to me, I gave it to my brother who gave it to a constable; the knife produced is that found by Goodwin.

George Love.  I was with my brother J. Goodwin when we saw a dead body; Goodwin found a knife, this is the knife, I gave to constable Armstrong.

This closed the case for prosecution.

Prisoner in defence.  Had no way of getting a counsel; I was unfortunate to find the clothes mentioned; I tied them up in a bundle.

Ch. J. in summoning up, remarked that in this case, the evidence is entirely circumstantial, but expressed his opinion that circumstantial evidence where it lead but to one conclusion is the strongest of evidence.

Verdict Guilty.  Ordered for execution on Monday.



[1 ] See also Sydney Gazette, 9 May 1835.  Kilmartin was hanged on 11 May 1835: Sydney Gazette, 12 May 1835; he was a Roman Catholic, about 25 years old.  In this, as in many other murder cases in New South Wales during the period in office of Forbes C.J., 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.

Published by the Division of Law, Macquarie University