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

R v James (1836) NSW Sel Cas (Dowling) 309; [1836] NSWSupC 59

murder - suicide, assisted suicide - domestic violence - Bathurst - drunk witness - double jeopardy - autrefois acquit - contempt, drunk witness - criminal procedure, discharge of jury in capital case

Supreme Court of New South Wales

Burton J., 12 February 1836

Source: Sydney Herald, 15 February 1836[1 ]

William James was indicted for the wilful murder of his wife, by strangulation, at Twelve Mile Hollow, on the Bathurst Road, on the 10th of  November last.

The Solicitor-General conducted the prosecution Mr. Therry defended the prisoner.

As this case is to come on again for trial, we do not consider that it would be proper to publish any part of the evidence.  The trial had occupied some considerable time, when one of the witnesses for the Crown made his appearance in the box in a state of intoxication.  Mr. Justice Burton immediately directed that he should be taken to the General Hospital, there to undergo a course of purgation, by means of the stomach-pump or emetics; and, in the mean time, His Honor adjourned the Court for an hour.  After waiting much beyond that time, the witness was again produced, and upon being put once more into the box, was asked by the learned Judge if he though himself sober enough to state what he knew; to which he replied that ``he hoped he was."  Mr. Therry, the prisoner's Counsel, then came into Court, and the examination was resumed by the Solicitor-General.  It had not, however, proceeded far, when it was made quite evident that the ``course of medicine," or whatever other ``course" the witness had undergone at the Hospital had not been sufficiently powerful to render him a fitting witness in a case of murder.  The learned Judge soon professed his utter inability to understand what the witness meant to convey to the Court; and the Jury, through their Foreman, told the Judge that they could not think of forming an opinion upon testimony given by a person in such a state.

His Honor said that the Court was placed in a situation of great embarrassment in the case, and suggested that the prisoner's Counsel should consent to the Jury being discharged, and the trial commence de novo on the following morning.

Mr. Therry replied that, in such a case, he would not become a party to the course of proceeding suggested by the Court.  His Honor, he said must use his own discretion as to the course he would adopt.

The Solicitor General, after a pause, rose and said he would candidly admit that, in consequence of the absence of his principal witness - who he had no doubt, was kept out of the way - he did not expect a conviction in the case; and that he would not be in a worse situation even without the evidence of the witness in the box.  He would, therefore, consent that the evidence he had given should be struck out of the case, and proceed with the examination of  such other witnesses as he might able to produce.

The Court was willing to adopt that course, but

Mr. Therry contended for his right to cross-examine a witness who had not alone been tendered to the Court, but whose evidence had, in part, gone to the Jury.

His Honor said he would take care that it should form no part of the case for the Jury; it should be struck out altogether.

Mr. Therry replied that, whatever the evidence might be worth, it could not be erased from the minds of the Jury; and was proceeding to draw the attention of the Court to some facts which the witness had stated, as a ground upon which he claimed the right of cross-examining him, when he was interrupted by

The Solicitor-General, who objected to a speech to evidence, and put it to the learned gentleman whether he would proceed with the case, or leave it the Court to dispose of?

The learned Judge, after some consideration said, that as the prisoner's Counsel would not adopt the course proposed by the Counsel for the Crown, he would take upon himself to discharge the Jury from giving a verdict.  He was of opinion that he possessed the power to do so; but if upon further enquiry it should be found that he had no such power, of course the prisoner would have the benefit of any advantage to which he might be entitled, owing to the course of proceeding which the Court would adopt.  He felt the embarrassment of the situation in which he was placed, without any means at hand of looking into the question raised, and consulting with other Judges upon the point; but as he was quite satisfied that the ends of justice could not be attained by proceeding with the present case, he would assume the exercise of the power which he believed he possessed, under all the circumstances, by discharging the Jury from giving a verdict, and remanding the prisoner.

Mr. Therry again suggested to the Court, that the prisoner had been ``put upon his country," that the Jury were charged with him, and he was entitled to insist upon their verdict whatever it might be.

Mr. Justice Burton. - Mr. Therry, the matter is now in my hands.  If I am wrong, of course your client will have the benefit of the error into which I may have fallen.  I am of opinion that I possess the power to act as I mean to do: and, ``Gentlemen (addressing the Jury) I discharge you from giving a verdict in this case.  Let the prisoner be remanded, and brought up again to-morrow morning."

His Honor then directed the cause of all this scene of confusion and delay - to wit, the drunken witness - to be consigned to the watch-house or gaol till the following morning, and then to be brought before the Court.


Burton J., 13 February 1836

Source: Sydney Herald, 15 February 1836

Saturday - Before Mr. Justice Burton.

William James was again put to the bar on an information, charging him with the wilful murder of his wife, at Twelve-mile Hollow.

Mr. Therry, Counsel for the prisoner, contended at considerable length, that the prisoner could not be again put upon his trial for the offence charged against him.  He had already been placed in jeopardy; and, although the learned Judge had taken upon himself to discharge the Jury without giving a verdict in the case, he (Mr. T.) contended that His Honor had exercised a power which he did not possess; and, that the Jury having been once charged with the prisoner, he was entitled to their verdict one way or the other.

The Solicitor-General replied, and relied upon several authorities to show that the Court did possess the power of discharging a Jury from giving a verdict, in a case of necessity.  The learned Counsel adduced the case of the sudden illness of a witness, which had been held as a sufficient reason to warrant the discharge of a Jury, without giving a verdict and argued, that any case of absolute necessity would fully justify the Court - having regard to the ends of justice - in discharging a Jury without giving a verdict, and putting the accused upon his trial again.  The present was not one of those cases in which the prisoner might be said to have been put in jeopardy.

Mr. Justice Burton said, that when he discharged the Jury last night, he was satisfied that he had the power to do so, under the circumstances.  He had since then, however, taken the opinion of His Honor the Chief Justice upon the point, and he was happy to say that he was fully borne out by that opinion, in the propriety and legality of the act.  [The learned Judge read the opinion of the Chief Justice, which was to the effect, that in a case of necessity, and where the ends of justice would be frustrated by proceeding with the trial, owing to the sudden incapacity of a witness to give evidence, the Court might discharge the Jury from giving a verdict and put the prisoner upon his trial again]; the trial must, therefore, proceed.

Owing to the absence of a principal witness for the Crown, and other arrangements which had been made by the Law officers for to-day, the trial was not proceeded with, and the prisoner was remanded.

In the course of the morning the witness, whose intoxication yesterday had led to all the inconvenience which followed, was brought before the Court, and after a very severe reprimand, and serious remonstrance on the impropriety of his conduct, was sentence to a month's imprisonment, for the contempt of which he had been found guilty.[2 ]


Kinchela J., 12 and 13 August 1836

Source: Sydney Herald, 15 August 1836[ 3]

Before Mr. Justice Kinchela and a Military Jury.

William James, a free man, residing at Twenty-mile Hollow, in the district of Bathurst, was indicted for the wilful murder of Mary his wife, by strangling her with a handkerchief on the 12th October last.

When the Jury had been sworn, Mr. Foster requested his Honor to take a note of his objection to the competency of the Court to try the prisoner, he having been formerly tried, when through the drunkenness of a witness the jury had been discharged without giving a verdict.

The Judge said that the proper method would have been for the prisoner to have pleaded his former trial; he would however reserve the point.

The Attorney-General briefly stated the case to the jury.  The prisoner's wife had threatened to hang herself, and had tied a handkerchief to a rafter for that purpose, when the prisoner not only put it round her neck, but shoved her off the box.  If he proved these facts the Judge would tell them it was murder.  The prisoner had been arraigned last Session, but a witness being drunk Mr. Justice Burton discharged the jury.  Now, he (the Attorney-General) was not very clear whether a Judge had power to discharge a jury; at any rate he should like to have the decision of a full Court.  In the present case if the jury acquitted the prisoner on the facts, of course the point of law would be gone; if they found him guilty he would have the benefit of it.

The following witnesses were then called:-

Patrick Cahan, private in the 4th Regiment, being sworn, stated, on the 12th October last, I was in company with Corporal Spence at the prisoner's house, at Twenty-mile Hollow; we called in to light our pipes in the afternoon; we remained but a very short time, we saw the prisoner and some children; three or four minutes afterwards a female named Smith called me in to see Mrs. James; I looked between the slabs and saw her hanging by a black handkerchief from the rafters; there was a box near her feet, she appeared to be dead; he hands were up as if she had been trying to lay hold of the handkerchief; I called out to Corporal Spence and told him; the prisoner was in the kitchen, and he came to me when I called out, and said ``go and cut her down," I told him to go himself, and I saw the prisoner's son go in the room with a knife to cut her down and I think the prisoner helped him; a publican named Pembroke, who resided near the spot, came up, and him, me, and the Corporal, went into the room, the deceased was lying on the floor, and Mr. Pembroke said he was sure she was dead; the prisoner was sober, he appeared to be melancholy.

Cross-examined - When we first went in we saw the prisoner near the fire; not more than five minutes had elapsed when Jane Smith called me, I went in immediately, James was still in the kitchen; I cannot say whether the door was locked inside; Corporal Spence went to Pembroke's; I did not hear the deceased when we first went in; if she had made any alarm I must have heard it; Creran did not give me the alarm, it was Jane Smith; I saw Creran in the house after Mr. Pembroke had arrived; some time had then elapsed; I saw him come out of another room; there was no time for the prisoner to have hung his wife from the first time I entered until I gave the alarm; no person without peeping could see Mrs. James hanging.

Re-examined - Creran might have got into the house by another door; I do not know whether he was in the house before; I was asking Creran some questions, but he told me I was no magistrate.

By a Juror - Creran said he knew all about it.

Patrick Creran - I have been free three years, I have been ten years in the colony; I was at Pembroke's the day Mrs James was hanged; one of her sons came crying out that his mother was hanging; it was about eight or nine o'clock in the day; I went up to the house; I saw James, and I asked him what was the matter, he said there was nothing the matter and asked me what business I had there; the children were all laughing at the door; I went into the room and saw the woman hanging; I cut her down; James was standing with his back to the fire; he threatened me, and said I had not right to interfere; there was a dispute between me and James; I got him fined forty shillings, he did not like to see me about the house; I heard James say, ``let her hang and be d--d;" this was before I cut her down; she was hanging by a red handkerchief; when I cut her down she was a long time before she came too; when she did come too she took some rum that James had, but he gave her a push and she fell down; I had seen Mrs. James before that morning; while I was trying to recover Mrs. James, the prisoner was in the kitchen, he gave me no assistance; when Mrs. James came into the kitchen she said she understood I was the b--y rogue that cut he down; she was angry with me; I said I did cut her down, and I asked her if she was not glad of it; she replied no, the prisoner had been long enough trying it on, and that if I had not interfered she would have been in a better world.  The prisoner and his wife then had a dispute about Jane Smith, and I went into another room, and by standing on the sofa I was able to see into the room in which the prisoner and his wife usually slept; I saw Mrs. James with a black handkerchief in her hand which she tied to a rafter; she asked the prisoner, who was in the next room, where her eldest son was, and he said he had gone for sugar; Mrs. James then got on a box, and the prisoner came to the room door and asked her if she was as game as she pretended; she said she wanted to see her eldest son; the prisoner said stop a minute, and then put the handkerchief round her neck and pushed her off the box; he then dragged her by the feet; he then left her and went into the kitchen; the son almost immediately came in and cut her down; the sudden jerk he gave her must have hung her; I saw the soldiers come in; I heard the soldier sing out; I was on the sofa and was looking over the wall when I saw the prisoner drag his wife by the feet; I intended to have cut her down, but the son was before me; the boy entered the room almost immediately after the prisoner left it.

Cross-examined - I was drinking at Pembroke's when the son came to me; I was at the door and saw the boy; I got there in time to save her; I was in the house the second time but was not in time then; it was after the soldiers had come in to light their pipes that James acted as I described; I do not know whether the door was locked inside; I did not tell constable Abrahams that the door was locked, I should have made an alarm if I had not been afraid the prisoner would have escaped; if I had done such a deed I should have run away; I knew he had pistols in the house; and I told the magistrates at Penrith that was the reason; the prisoner had threatened to take my life; I thought it was necessary for me to keep my eye on him; there was no time lost before the soldiers made an alarm; I did at one time say I saw the deceased through the slabs, but it was the first time I alluded to; I do not think I said so with regard to the second time; the box was about half a yard high; it might have been more or less; I did not hear Jane Smith call the soldiers; I did not see the soldier from the time he lit his pipe until Mr. Pembroke was in the house; I did not see him look through the door; when I saw the prisoner leave the room; I got down as gently as I could in order that the prisoner might not hear me for fear he should blow my brains out, and I got out of the room as quick as possible but the son was before me.

Cahan re-called, I never left the house from the time Smith called me until Pembroke came up; if Creran had been trying to cut the woman down I must have seen him.

Cross-examination of Creran continued.  I laid two informations against James, I convicted him on one of them; I was charged with perjury but it could not be proved; I was in the house about settling one of the informations, the prisoner sent for me and offered me a pound and a pistol; I have just been giving evidence in the other court; I swore that all my clothes were stripped off me, and the man who was with me swore I was not stripped, but it is easy to get people to swear any thing; James was partly drunk; I was not out of the house from the time she was hanging the first time until the second time; I remained in the room all that time through what I heard amongst them; I wanted to see whether she was for hanging herself, or he was for hanging her; I saw that officer (Mr. Faunce) come in.

Mr. Pembroke an inn keeper residing at Twenty-mile Hollow.  Corporal Spence called me and said Mrs. James was hanging; I went up to the house; the body was cut down; I recommended James to send to the depot for a medical man, but he refused; the body was quite dead; I saw Creran in the house.

Cross-examined - The prisoner refused to send for a medical attendant; he afterwards appeared to be in great tribulation; the deceased was subject to take a drop; Creran called me on one side and pointed out a place from where he said he saw the prisoner commit the act; I did not know anything about the deceased having attempted to hang herself before; I do not think Creran was at my house that morning; I understood Creran to say he had seen through the slabs; he did not tell me that he had got on the sofa and looked over the wall; I cannot say whether he could have done so; no person came to my house and called Creran to go and cut the woman down.

Mr. Thomas Black, surgeon - On examining the body of the deceased, I found one or two slight contusions on the eye, but think they were inflicted by her falling forward after she had been cut down; she died by strangulation, which I have no doubt was caused by hanging.

Cross-examined - Creran said he saw the transaction through the slabs; he never said anything about sofa or bark; he said her feet were about the height of the table from the ground, but that was impossible, as from the position of the handkerchief, her feet could only just be clear of the ground; I recollect Creran was flogger at the station; from the very inconsistent manner in which he gave his evidence I would not believe him on his oath.

The prisoner made no defence, but called the following witnesses:--

District Constable Samuel - I was sent to the Twenty-mile Hollow; Creran told me the door was bolted inside; he took me into the inside room and shewed me where he said he stood to see James put the handkerchief over his wife's head; I am a taller man than Creran, but when I got on the sofa I could not see over; I could not lift the bark, I was not high enough.

Lieutenant Faunce, 4th Regiment - I was on the spot with Mr. Campbell the magistrate just after the affair; Creran did not offer his evidence; after all the persons had been examined, Mr. Campbell said as Creran was a constable he would examine him, and then he told this long story; I would not believe him on his oath; The box pointed out as the one from which the deceased was thrown, was about seven inches high.

Mr. Foster said that he had other witnesses, but he did not think it was necessary to call them.

Mr. Justice Kinchela said, that in law, a person who assisted another to commit suicide, was guilty of murder; so that in a case where two disappointed lovers agreed to commit suicide, and went out in a boat for the purpose of drowning themselves, and one of them survived, the survivor was held to be guilty of murder, and the case was afterwards argued before the twelve judges, who were of the same opinion.  The present case as it affected the prisoner, stood solely on the evidence of Creran; they had heard his evidence, and they had heard what had been said about him, and it was for them to shew by their verdict whether they believed him.

When the Jury had been absent about half an hour, they returned, and the Foreman (Captain Macpherson) said that they wished to examine James the son of the prisoner, who cut his mother down.  Mr. Justice Kinchela said that they were bound to return a verdict on the evidence laid before them; they could re-examine any witness they pleased, but they could call no new ones; neither the prosecutor or the defendant had called him, and the Jury could not.  Captain M. said that there was no likelihood of their agreeing, and they again left the Court which was adjourned for two hours.

Soon after seven o'clock the Jury again returned to Court, and said that they were unable to agree upon which His Honor said that he was very sorry, but he must lock them up for the night.  He could not discharge them without the consent of the Crown and the prisoner.  If the Crown would forego the prosecution entirely, or the prisoner consent to be tried again, a Juror could be withdrawn, otherwise they were entitled to a verdict.  Mr. Carter on the part of the Attorney-General, and Mr. Foster on the part of the prisoner refused to acceded to the suggestion, and the Jury were locked up for the night.

Saturday, August 13. - Upon Mr. Justice Kinchela taking his set this morning, the jury in James' case, who had been locked up all night, came into Court and returned a verdict of Guilty.  Death.  Ordered for execution on Monday morning.  His Honor stated that he would respite the prisoner until he could take the opinion of the Judges on the point raised in his behalf by Mr. Foster.


Dowling A.C.J. and Burton and Kinchela JJ, 19 August 1836

Source: Burton, Notes of Criminal Cases, vol. 26, State Records of New South Wales, 2/2427

[p. 92]  [The King v Thomas James]

In the Supreme Court of New South Wales.

19 August 1836.

In Chambers, before Dowling ACJ Burton J. and Kinchela J.


On the 12th January 1836 the prisoner named in the margin was put upon his trial before His Honor Mr Justice Burton in the Supreme Court for the wilful murder of his wife.  After the Jury had been sworn and charged with the prisoner and some of the merits of the case were gone into a material witness for the prosecution being put into the box the presiding Judge discovered that the witness was so drunk as to be incapable of giving Evidence.  Whereupon the learned Judge adjourns the further prosecution of the case for two hours, and directed that in the [p. 93] meantime the witness should be taken to the General Hospital, for the purpose of having remedies applied to him, as were within the skill of the Surgeon to restore him to a fit state to give evidence.  After the lapse of considerably more than two hours the proceedings were resumed the witness then appearing to have recovered he was sworn and proceeded with his evidence far enough to shew that he was a very material witness when he became again incapable of giving evidence from the operation of the healed Court upon his previous intoxication.

It was then late in the day, and the learned Judge was applied to by His Majesty's Attorney General to discharge the Jury from giving any verdict he stating that he had no other witnesses in the case, and that he could not expect a conviction under such circumstances and the Attorney General proposed to obtain the prisoners consent to that proceeding [p. 94] but it was immediately objected to by the prisoners Counsel that he ought not to be asked for his consent, and the prisoner was instructed by them not to give his consent.  The Judge states that in so new and embarrassing a situation as he was then placed in not having the opportunity of consulting either of his brother Judges on the point he should act as he believed to be best for the substantial ends of Justice.  That neither a conviction nor an acquittal under such circumstances would be satisfactory to the Public mind.  Especially as he found that the minds of the Jury had been disturbed from the grave consideration of the case by what they had witnessed.  He would do that which he had the power to do if he had not the power with the prisoners consent he would not put the prisoner to give his consent he would take upon himself to discharge the Jury from [p. 95] giving a verdict and he did so stating that it was like the case of sudden illness and resolved it into a case of necessity; and to prevent the ends of Justice being defeated.  There was no proof that the witness had been made drunk by the prisoner or by any person at his instance.  Next day, the learned Judge communicated to Chief Justice Forbes the course he had taken, and that learned Judge authorised him to state from the Bench, that the course taken was warranted by the circumstances and that in his opinion a person incapacitated by intoxication from giving evidence, was to be regarded in the same light as a witness becoming suddenly ill, in which case, the Jury might be discharged from giving a verdict, leaving it to the discretion of the Attorney General whether under the circumstances he would put the prisoner again on his trial for the offence.  At the last Session of the [p. 96] Supreme Court before His Honor Mr Justice Kinchela the prisoner was tried on the same identical indictment found guilty and sentenced to death according to law.  The learned Judge respited the sentence, upon a doubt whether, the Judge having at the former trial discharged the Jury without giving a verdict of Guilty or Not Guilty.  The prisoner could be again put upon his trial for the same offence and reserved the question for the consideration of all the Judges.

The case was argued before the Judges at Chambers on the 19 August 1836 by Mr.Foster for the prisoner and J.H.Plunkett Esq.  Attorney General for the Crown.

Dowling Acting Chief Justice.

I am of opinion that there is no authority in the law to warrant a Judge in discharging a Jury from giving a verdict under the circumstances stated in this case; and without some authority or express decision to guide me; I [p. 97] should be slow, constituted as the Bench of New South Wales is, in point of numerical strength, in concurring in a resolution so important to the administration of Justice.  I have looked diligently through all the authorities bearing on the question, but I can find none either in point or analagous [sic] to it.   In Kenlocks case Foster 30 all that Mr Justice Foster says is that the question there was "not" whether the court may discharge a jury sworn and charged, where under practices appear to have been used to keep material witnesses out of the way; or where such witnesses have been prevented by sudden and unforseen accidents" That being the question he says "I give no opinion upon it".  All that he says is "only let it be remembered that L.d C.J Hale / Hale 296 296-7 justifieth this practice which he saith, prevailed in his time, & had long prevailed, by strong arguments drawn from the end [p. 98] of Government and the demands of public justice."  But Lord Hale is no authority for the precise point now raised.  The discharging of the Jury in this instance can only be justified on the grounds of great necessity, which could not have been avoided.  All other means must, I apprehend, have been exhausted before the general rule could have been departed from "That a Jury once sworn and charged in a Capital case cannot be discharged without giving a verdict".  No doubt there are a great many exceptions to this rule to be collected from decided cases, but no case can be found in point to the present.  Voluntary drunkenness can scarcely be considered as a sudden and unforseen accident within the contemplation of Mr. Justice Foster, even if he had himself given an authoritative opinion on the subject.  The fair interpretation [p. 99] of this passage in that learned Judge's decision in Kenlock's case, must be, the incapacity of the witness from the act of God, or some sudden infirmity which could not have been anticipated at the time the witness was tendered to give evidence.  The necessity for discharging the Jury must be inevitable arising from circumstances which could not have been previously contemplated Was this a case of necessity?  Might the contingency have been guarded against?  Before the Jury were charged with the prisoner it was the duty of the prosecutor to have ascertained whether all the witnesses proposed to be called were in attendance and in a fit state to be examined, & if not then to have moved the Court to postpone the trial.  Again even after it was discovered that the witness in question was incapacitated by temporary drunkenness, it was competent to the Judge to have adjourned the trial for a longer [p. 100] time than two hours, to enable him to become sober.  Be it that this might subject the Jury to some inconvenience, yet it was a lesser evil than that of discharging the Jury altogether, to the infraction of a sacred rule, which ought never to be broken through unless from extreme necessity.  Here the point of absolute necessity had not arrived at the time the Jury were discharged.  There is a vast difference between the sudden incapacity of a witness from drunkenness and that of a Juryman taken ill during trial.  The Jury is a most essential part of the Court, and as much so as the Judge who presides.  The hopeless recovery of a Juror taken ill after he is sworn and charged with the prisoner, is a case of absolute necessity for there no verdict of the Jury could be given without the concurrence of the whole twelve.  The cases therefore of services being discharged where one or more became ill, are not [p. 101] analagous [sic].  Adverting therefore to the circumstances of the case I think the point of necessity for the proceeding had not arrived at the time the Jury were discharged.  At all events the point is too doubtful, without some clear authority upon it to satisfy my mind as to the propriety of discharging the first Jury.

James Dowling ACJ

2d September 1836.



[1 ] For the trial judge's notebook record of the trial, see Burton, Notes of Criminal Cases, vol. 24, State Records of New South Wales, 2/2425, p. 102.

[2 ] This led to commentary in the Australian, 19 February 1836; and Sydney Gazette, 18 February 1836.  Justice Burton lamented that there were three or four public houses in the immediate precincts of the court.

[3 ] See also Sydney Gazette, 16 August 1836; Australian, 16 August 1836.

James was respited until the opinion of the Crown Lawyers in England was made known.  In the meantime, he was still in the condemned cell in November 1836: Australian, 8 November 1836.

Published by the Division of Law, Macquarie University