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

R. v. McCaffery, Jones and Moore [1837] NSWSupC 24

murder - Berrima

Supreme Court of New South Wales

Dowling A.C.J., 5 May 1837

Source: Sydney Herald, 11 May, 1837[1 ]

Soldiers and Convicts.

Friday, May 5, 1837.  Before the Acting Chief Justice and a Civil Jury.

John M'Caffery, John Jones, and John Moore, were indicted for the wilful murder of Thomas O'Brien, a private of the 50th Regtment, [sic] on the highway, near Berrima, on the 19th of February, by striking him on the head, face, neck, and body with sticks, so that he then and there instantly died.

James Hayes - I am a private in the 50th Regment [sic]; I was at Atkinson's public house on the 19th February; it is two miles from Berrima Stockade; I was on guard, and should have been on duty; I was in company with Thomas O'Brien of the 50th; we left the stockade about three o'clock; two young women went with us to Atkinson's; the prisoners were in the house; I had known then before; Jones had been in my charge; I knew M'Caffery well; before we got to the public-house the young women gave us two bowls of wine, which they had in a dray; while we were standing outside, Jones came out and asked me if I would have a glass?  I went in and had several glasses; some time after, the deceased came in, and Jones asked him if he  recollected getting him twenty-five lashes in the gang? "I mind it very well," said O'Brien; "Well," said Jones, "there's no animosity between you and me;" - "not the least," was O'Brien's reply, and they drank together; we sat down in company, and after about an hour O'Brien was intoxicated, and he said he would fight any man in the room; I said, "O'Brien, do not make a fool of yourself," and I prevented him from taking his jacket off; Mrs Atkinson heard the noise, came into the taproom, and shoved him out of the door, which she shut; in a few minutes afterwards, the prisoners went out, and returned in about twenty minutes, and commenced drinking; in about half an hour, I left the house to go home, and M'Caffery followed me, and said it was time I was home; I said I would go home when I pleased, on which M'Caffery struck met; when I had gone about fifty yards, I went on one side, when I saw Moore and M'Caffery going through the wood, and I was on my way home, when I saw three  men going away from the body of O'Brien, which was lying on the road; M'Caffery was one of the men - to the best of my knowledge, the other two men were the other prisoners. - M'Caffery had a large stick in his hand; they were about ten yards from the body when I first saw them; M'Caffery wheeled to the right about, and looked at O'Brien; he then looked at me; I was from ten to twenty yards from him; he did not speak; I went over to O'Brien, the deceased man, and the body was naked; his jacket was under his head; there was a large stick covered with blood broken into three pieces; there was another small stick covered with blood lying by his side, which I took to the barracks; the man was warm, but dead; his face was covered with blood.  I went home as fast as I could, and reported that O'Brien was murdered, and M'Caffery was the man that killed him, as he was one of the men that was going away from the body; I was in the guard-room on the 19th of February, when I saw Patrick Conolly take off Moore's hat, and take a handkerchief out of it, which I saw O'Brien wear on the day in question; Moore was in custody of the guard.  That is all I know about the murder.

Cross-examined by Mr. Windeyer for M'Caffery and Moore. -  The handkerchief was between a red and yellow; I do not know what had become of the shirt; I did not see O'Brien take it off;;I was not so drunk as he was; M'Caffery was not dead drunk, but I think Jones was more sober than he; when O'Brien came in to Atkinson's, Jones gave him liquor; the prisoners left the house together; they appeared sober enough, much soberer than O'Brien; the body was about five hundred yards from the public house; I spoke to Jones the same as the other men in the company, not more with him than with the other men; he is Mr. Atkinson's servant; I was not surprised at the friendly feeling shown by Jones; the words used by Jones were not "you got my back cut, and I will cut you head the same way;" I cannot say whether O'Brien was murdered the time the prisoners left the public-house the first time; when I first went to the barracks, I said O'Brien was dead; I did not say "he will be dead before you get to him," when we came out of the public-house, I was not to say drunk altogether; M'Caffery was not very drunk; the three men were, in my opinion, the prisoners; I did not see Jones's face, but there was a man of his size; it was daylight when I got to the barracks; I did not move the body; it was between five and six o'clock when I saw the body dead; I told the officers that M'Caffery was the murderer; Mr. Thompson, of Bong Bong, was one of the magistrates that investigated the matter; the body was brought to the barracks by some of the men; when the body was at the barracks, I saw a wound over the eyebrow; his chest as beaten; when I first saw the body the blood was running.

Re-examined - The prisoners were absent about twenty minutes, and returned to the public-house they might have been absent long enough to have committed the murder.

Cross-examined by Jones - You were in my charge for twelve months; you have been in the barracks since you left the gang; I do not recollect your being in my company; if I had seen you face I should have known you; you were not with M'Caffery and Moore when M'Caffery struck me; I am well aware you are the man that got O'Brien murdered for getting you flogged; I heard no words pass concerning Egan.

John Neilly, private in the 50th regiment - I was at Atkinson's the day the murder was committed; Jones said to me about five or six o'clock, "do you recollect O'Brien getting me five and twenty in the gang?" I said I did not recollect who got it him, but I knew he received it;  he then said, O'Brien's head was sore as ever his back was, which I would see as soon as I turned the corner of the road; I had not gone twenty yards before a  man told me one of my comrades was murdered on the road, and as I was the first he met, to go back and give the alarm, which I did; Jones was alongside of me when the man gave me the alarm; as soon as I had given the alarm I wen to the corpse; he was stripped of his shoes and shirt, and had been murdered rascally, his head was covered with blood; he was lying mostly on his right side; I saw a stick broken into three pieces; I left the corpse, and came on to barracks to give the alarm.

Cross-examined by Mr. Windeyer - I did not see Hayes in the public-house; I did not put my hand on the body; it was very plain it was dead; his whole face was covered with blood, the blood was running, and the murder must have been committed very shortly before; when I first saw Jones he was under the verandah; Hayes had told them that the murder was committed before I got to the barracks, but they did not believe him; he was on sentry when I go there; Jones was drunk when he spoke to me, but not too drunk to beat a man that was laying on the ground asleep; when I got to the barracks, Hayes was tolerably sober.

Daniel Whitehead, medical attendant at Berrima Stockade - I was sent by Lieutenant Briggs to see the body of Thomas O'Brien; I found it about a quarter of a mile from Atkinson's, the body was quite dead; he had no shirt or boots on; his death was caused by violence, inflicted by a bludgeon; there was a blow over the left eyebrow, sufficiently large to admit the fore finger; the scull was fractured; four of his teeth were nearly out; he had received some blows on his breast, and his arm was bruised, as if he had been defending himself; there were three pieces of wood, forming one stick; there were marks as of teeth, and there was blood and hair on the stick; it was nearly as think as my arm, and between five and six feet long; it was a stick likely to cause the wounds I saw, and those were sufficient to cause death.

Michael Flinn - I am district constable at Berrima; I went to examine the hut of Jones on the 19th of February; his hut was on the farm of Mr. Atkinson, to whom Jones was assigned; I found a handkerchief concealed between the sacking of the stretcher, it was a black silk one; there were two other men in the hut; I gave the handkerchief to the Police Magistrate at Bong Bong; it was Jones' berth.

Richard Boston - I am a private of the 50th regiment; I examined the hut in which Jones lived; I found Jones there and took him into custody; I saw a handkerchief  in the Stockade, it had been my property; Mr. Briggs showed it to me in the Police Office; I had sold it to O'Brien about three months before the murder took place; it was said that Jones and big Jack had done it; big Jack (M'Caffery) is assigned to Mr. Barton; it was on Neilly's information I took Jones.

Cross-examined by Mr. Windeyer - When Hayes came to the barracks, he said O'Brien was murdered; Neilly I should think was half an hour after Hayes; Hayes mentioned the name of Jones; he told Corporal Wilton that Tom O'Brien had been murdered by big Jack and Jones; at the time big Jack was confined, he said he would crush any b--y soldier.

Patrick Conley - I am a soldier in the 50th regiment; on the 19th February, I was sent to enquire into the truth of Hayes' report of O'Brien's murder; I went to Atkinson's and getting a pistol. I went in pursuit of big Jack, whom I found speechless drunk, or pretending to be so; I could get no assistance until some of my comrades were passing that way; the next morning I had the prisoners in charge at the guard room; on Moore I found a handkerchief, which I think belonged to O'Brien; Moore did not deny it was O'Brien's property, but said he might have picked it up.

This closed the case for the prosecution, but the following witnesses, whose names were on the information were called, at the request of the prisoners' counsel.

Robert Jones - I am a free man, employed by Mr. Boston; on the 19th February, I was at Atkinson's house with Moore; on out way to Atkinson's, I saw two soldiers and two girls with a tilted cart; I made the remark, when Jones said, that the big man once got him twenty-five lashes, when he was in the ironed gang, and his

b--y oath he would make his head sorer than ever his back was, and Moore said he had better have nothing to do with the like of them people at all; when we got to Atkinson's, Jones called in one of the soldiers to treat him, and he too part of some brandy that was on the table; shortly afterwards, O'Brien came in, when Hayes was asked if it was comrade? he said yes, and he was then asked to drink; M'Caffery  then came in; several tumblers of brandy were drunk: O'Brien was getting very tipsey, Hayes was not so tipsey; O'Brien got very drunk and quarrelsome, and was turned out; Mrs. Atkinson said she would draw no more, and told Jones as he had no pass, to go home and not go off the farm any more that day; she gave him half a pint of brandy in a bottle, and he left the house; I cannot say how long O'Brien had been out; I do not know whether M'Caffery and Moore went with him.

Mrs. Jane Mason - About four o'clock in the afternoon I saw M'Caffery coming from Atkinson's; he was very drunk; when I saw him he was about a quarter of a mile from the spot where the man was murdered.

The prisoners were now called on for their defence.

M'Caffery said noting in his defence, but Jones handed I a written statement of the usual tenor of document of that description drawn up in gaol. - It denied the principal part of the evidence against Jones, but admitted that the handkerchief was O'Brien's, which he had purchased of him that morning. Moore stated that he picked up the handkerchief in the house, and did not know to whom it belonged.

On behalf of Moore and M'Caffery, the following witnesses were called:-

Mrs. Atkinson - I recollect Hayes and O'Brien coming to my house on the 19th February; I saw O'Brien making a disturbance, and had him put out of the house.  Moore and M'Caffery were there; they went out about half an hour or twenty minutes after him; some time afterwards I went to Smith's, and soon afterwards M'Caffery  came and asked for me, but Smith denied me to him, when M'Caffery said he wanted some drink, and did not know where I was gone to; he stopped at Smith's short time,  and then I saw him going towards his own house.  It was after Robert Jones had left the house that I left it, and locked up the liquor; M'Caffery always bore a good character.

By Jones - When you left my house I desired you to go home, and you went towards home; it was about a quarter of an hour before I shut the house up.

Mr. Richard Smith - I reside near Berrima, about one hundred yards from Atkinson's; I remember Mrs. Atkinson coming over; I saw M'Caffery and Moore coming from the house afterwards; they asked for Mrs. Atkinson, but I denied her; M'Caffery was rather drunk; I heard Mrs. Atkinson say there goes O'Brien up the road - this was before M'Caffery came to the house; Moore turned off towards Oldbury, where he resides.  About three quarters of an hour afterwards I saw M'Caffery leave the public house with a bottle in his hand, towards Oldbury; I saw him fall, and a man named Scott picked him up; about half an hour after O'Brien went pass another soldier went the same road; there was no one went between the time O'Brien went along the road and the other soldier of an hour after the second soldier had gone by that I heard a soldier was murdered.

Cross-examined - There was an interval of half an hour between the first and second soldier passing my house; persons might have passed without my seeing them, by going forty or fifty rods to the back of my house.

Mr. James Welling - I was going to Berrima to look out for a piece of ground to make bricks; was in company with a man named Patten; we met a soldier named Hayes - he did not speak to us; he had a bent stick in his hand with the bark bruised off it; Hayes looked very white in the face; we passed Hayes without speaking to him.

By Jones - I never told you I thought Hayes was the murderer.

His Honor carefully recapitulated the whole of the evidence, and the Jury, after an absence of a few minutes, returned a verdict of M'Caffery and Moore, Not Guilty; Jones, Guilty.

When called on to say why the judgment of the Court should not be passed, Jones called God to witness that he was innocent, and hoped the witnesses would be in the same situation as himself before a twelvemonth.

His Honor, in passing sentence on the prisoner, observed that no reasonable man could have any doubt of his guilt, and said, that from information he had received, he was afraid this was not the first time he had embued [sic] his hands in blood.  Sentence of death, in the usual form, was then passed on the prisoner, who was ordered for Execution on Monday morning.

Jones, still violently exclaiming that he was innocent, asked the Judge to let him be executed on the spot where the murder was committed, but His Honor would not comply.




[1 ] See also Australian, 9 May 1837; Sydney Gazette, 6 May 1837; Dowling, Proceedings of the Supreme Court, Vol. 136, State Records of New South Wales, 2/3320, p. 38.

Published by the Division of Law, Macquarie University