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

R v Free [1836] NSWSupC 32


Supreme Court of New South Wales

Burton J., 9 May 1836

Source: Sydney Gazette, 10 May 1836[ 1]

Before Mr. Justice Burton and a Military Jury.

Joseph Free stood indicted for the wilful murder of Edward Brown by striking him with a tomahawk on the 9th November last at Gingle creek.

Mr. Therry in stating the case to the jury said - It was a case which would would demand a considerable degree of their attention.  But in order that they might the better understand the nature of the evidence which would be laid before them, he would give a brief outline of the affair, which was one of the most apalling nature.  Prisoner was at the time employed as overseer to Mr. McIntyre, and about the time the fatal deed was perpetrated, a charge of cattle stealing was preferred against him, and he was to have appeared before the bench of magistrates on the Wednesday, two days after the alleged murder.  In that investigation two assigned servants to Mr. McIntyre were to give evidence against the prisoner.  One was the deceased, the other Timothy Kilfail.  Prisoner expecting the police would pursuit of him absented himself on the previous Friday, from the station; on the Saturday the policeman came, and not finding the prisoner, he left he summons for deceased and Kilfail with the latter, requesting him not to allow prisoner if he should return to go near the store.  Prisoner did not return to the station until the Monday, the day on which the deed was done.  Meeting Kilfail he asked him if he was going to give evidence against him the latter replied that having received a summons, he meant to go and tell the whole truth; he added that Brown (the deceased) was also summoned.  Oh! said prisoner, Brown is out of the way, or out of the world, and if he could make it all right with him he should be all right.  Now this was a very remarkable expression, for Free to make; he then left Kilfail, and proceeded towards a hut, where another of Mr. McIntyre's, servants named Davis was, and stopped there a short time.  On leaving the hut, he took with him a pair of blankets, some clothes and a tomahawk.  Davis accompanied him a short distance, when they were about to separate, prisoner said it was likely he would not see him again.  Davis was struck at this remark, as well as with the prisoner taking with him the tomahawk.  On the same morning Kilfail had asked permission of prisoner to go some little distance for some clothes, prisoner refused, but desired that he would meet him by the mountains on Tuesday night.  Kilfail being struck by the remark made by prisoner as to Brown being out of the way, or out of the world, mentioned the circumstance to some other of his fellow servants, who were equally surprised at the observation, and it was determined to make some enquiry into the apparent mysterious matter.  In consequence Kilfail went down to the hut where Brown resided, and ascertained that he had slept at home on the previous night, and as usual had gone out in the morning with his flock of sheep, he (Kilfail) proceeded towards that direction; after having gone some distance, he saw the prisoner hacking as he thought a piece of wood; on approaching more closely he perceived it was the body of Brown that prisoner was mangling.  When prisoner saw him, he moved towards him, but such was the fright of Kilfail, that he started off upwards of five miles, until he came to another station; he fainted through exhaustion, when he got to the door; but as soon as he recovered, he related the particulars of the murder he had witnessed.

It appeared there was a high range about 400 yards in height close to where the murder was committed and it would seem to have suggested itself to prisoner, as a fiting place to deposit the body.  But finding it was too heavy for one person to carry up, he divided it into two parts, one he wrapped in a blanket, and the other in the trowsers, near to the spot where the body was discovered; the tomahawk and a spade was found.  This really was a short outline of the case, and they would perceive a great deal rested npon circumstances, he would then proceed to call the witnesses from whom they would learn the particulars which he had briefly given.

The witnesses called fully established the above facts.  The body, when found as described by Mr. Bingle, presented a most appalling spectacle, being completely divided by the small of the back.  The front part of the skull was completely stove in as if from a blow with the back part of a tomahawk; the skull behind was almost cut off.  There was also a deep gash on the cheek.

The prisoner cross-examined the various witnesses at great length, but elicited nothing favourable to him.

In defence he made a very long rambling address; the witnesses he called proved nothing essential.  Mr. Justice Burton went carefully over the whole evidence.  The Jury, after having retired two or three minutes, brought in a verdict of Guilty.

Mr. Therry having prayed judgment, proclamation for silence having been made, Mr. Justice Burton proceeded, in a most solemn and impressive manner, to pass the sentence of death upon the prisoner, and ordered him for execution on Wednesday morning, the body afterwards to be given to the surgeons for dissection.[2 ]



[1 ] See also Sydney Herald, 12 May 1836; Australian, 13 May 1836.

[ 2] He was hanged: Australian, 13 May 1836.

Under (1752) 25 Geo. II c. 37, s. 5 (An Act for Better Preventing the Horrid Crime of Murder), the judge was empowered to order that the body of the murderer be hanged in chains.  If he did not order that,  then the Act required that the body was to be anatomised, that is, dissected by surgeons, before burial.  The most influential contemporary justification for capital punishment was that of William Paley, The Principles of Moral and Political Philosophy, 1785, reprinted, Garland Publishing, New York, 1978, Book 6, chap. 9.  He argued that the purpose of criminal punishment was deterrence, not retribution.  As Linebaugh shows, the legislature's aim in providing for anatomising was to add to the deterrent effect of capital punishment.  In England, this led to riots against the surgeons: Peter Linebaugh, ``The Tyburn Riot against the Surgeons", in Hay et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, Penguin, London, 1977.

Published by the Division of Law, Macquarie University