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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Anderson [1841]

attempted murder - assault, intent to do grievous bodily harm - evidence, circumstantial - capital punishment

Supreme Court of Van Diemen's Land

Montagu J.,

21 April 1841

Source: Hobart Town Advertiser, 23 April 1841[1]

            William Anderson was indicted for assaulting and wounding one Brian Nowlan on the 30th January, by striking him on the head with an axe with intent to murder him. A second count charged the offence as being with intent to do some grievous bodily harm.

            The Attorney General, in opening the case, told the jury that the facts, although simple, were involved in considerable difficulty, owing to the prosecutor, in consequence of the injuries he had received being unable to give any distinct account of the transaction. They would therefore have to decide from a variety of circumstantial details as to the facts, taking the legal distinction between the crime of murder and manslaughter from his Honor. As the prisoner was indicted, the offence was capital, and unless they were satisfied the offence, in death had ensued, would have amounted to murder, the prisoner could not be convicted on the present information.

            The first witness called was the prosecutor, whose appearance excited the sympathy of the whole court.

R. Nowlan. - I am very weak, and cannot eat; was perfectly well before the accident; know prisoner, he lived with me; do not recollect being taken to the hospital; don't remember receiving a blow from anyone; my jaw and head have been much injured, but do not know how it was done might have had a quarrel with prisoner, but am quite sure I never struck him; the weather being hot, on coming in at dinner time, I lay down on my bed; recollect lying on my right side; prisoner was in the room; do not remember any altercation taking place; remember that an axe and tomahawk were in the house, but did not touch either that day; as far as I recollect, prisoner asked me to take something to eat; I refused; I was then on the bed; do not know whether I had had dinner; do not perfectly remember lying down; do not remember striking prisoner with an axe; am sure I did not; never went out to fight with him, though a week before I remember on the subject of a quarrel, challenging him to do so, but he refused.

            C. G. Casey, Assistant Colonial Surgeon, at New Norfolk. - Remember seeing the last witness at a place called "the Corners," at the house of Mr. Rook. I examined witness on the night in question; it was about 12 o'clock at night. He was in a state of insensibility, lying on his right side, having on his shirt, trowsers, and suspenders, the bed-clothes were partly thrown over him; found a severe confusion on the left side of the head. Considerable haemorrhage had taken place. The scalp was divided, the laceration was deep, though not of great extent. In my opinion it was caused by a blunt instrument; I left directions to have him conveyed to the hospital at New Norfolk, on the following morning, having previously bled him. He did not come, however, till the Monday morning. (A hatchet was produced.) The back of such an instrument is very likely to produce such a wound, it was on the left parietal bone; would require a severe blow to effect it; but for its falling on the only thick muscle of the head the blow must have proved fatal. Did not see blood on the floor, but much on his clothes and on the bed. The blow must have caused instant insensibility. Near the side of the bed were traces of recent moisture, over which ashes had been thrown. My impression was that he had been sick. (As generally happens to concussions of the brain.) He was insensible, but rolled from one side of the bed to the other.

J. Hayes, farmer. - On the 30th January last, I was working at the Corners; was reaping for Mr. Rook; dined at 11 o'clock; sometime after dinner left the prisoner and Nowlan in the hut - it was about noon. At about 4. p.m. remember being called by a man named McKan. Did not see what passed from dinner time till 4 o'clock; at that time I saw Nowlan lying on his bed, bleeding much; he was insensible. The prisoner was not in the hut - I went to New Norfolk; and reported the circumstance to the police; did not observe any thing on the floor except what Nowlan had emitted from his stomach. Had not witnessed any quarrel, and had never heard that Nowlan was of a litigious disposition. When I left him on the bed he had on his shirt and trowers, and the bed-clothes were partially thrown over him. When I returned he was in the same position; had only been two or three days at the Corners, but knew Nowlan before going there.

James Welden. - I am a farmer; recollect the day in question; first saw Nowlan at about 10 in the forenoon; saw him again between 3 and 4 o'clock. He was then lying in bed in Mr. Rook's. On first going up to the house, I called three or four times. Heard Nowlan groaning, and got in at the window; he was insensible - so much so that I thought him dead. He was lying on his side covered with blood; did not see traces of blood any where but on the bed. I know the prisoner at the bar; did not observe any hatchet that day; did hear that high words had passed between Nowlan and prisoner about a fortnight before.

John Miller. - I recollect going to Rook's at half-past one; could not get in, the door being locked. - Returned at two; Welden was there. On going into the house, saw Nowlan covered with blood; saw an axe under the bed; I examined it. There was blood on the handle, left it where I found it under Nowlan's bed; saw Hayes going to New Norfolk to fetch a constable.

Henry Byron, constable at New Norfolk. - I repaired to the spot at about 3 o'clock on the Sunday morning; found Nowlan lying on his bed; under it was an axe, bearing marks of blood; delivered it over to District Constable Smith.

Smith, District Constable at New Norfolk. - I received the axe (produced) from Byron; it was much in the same state as at present, except that it had a little hair on it. On the 3d or 4th February, saw the prisoner with one McSheane; conversed with prisoner about Nowlan; McSheane brought prisoner to the watch-house, when I told him it was a sad job.

McSheane, Farmer. - I know the prisoner at the bar; saw Nowlan at the hospital; prisoner came to my house about the 31st January between 10 and 11 in the forenoon; I had previously heard of the circumstance in question; asked the prisoner whether he did not kill Nowlan; he replied "yes;" I told him he should give himself up, to which he answered, "I am willing enough; the man is dead; I'm tired of my life;" asked prisoner what he did with the hatchet; he said he had left it near the bed side; that no body was in the house except himself; I asked him where the reapers were; prisoner answered there was only one at the time on the premises; and he was asleep in the barn; that after the deed, he (prisoner) had locked the door and left the key in a hole close by; I delivered him to the police; on asking why he committed the rash deed; prisoner said, "I was tired of the world and wished to get out of it;" I told him it was a very bad thing, and he said, "I killed Nowlan before he killed me;" I am certain prisoner did not say that Nowlan struck him with the axe, and that he snatched it from him and gave the blow.

The prisoner, in his defence, maintained that Nowlan struck at him with the axe, that he (prisoner) snatched it away, and struck him with it; said he threw the bed clothes over him, locked the door, and went away. He did not call any witness for his defence.

His Honor, in summing up, first directed the attention of the jury to the hearing of the first count of the charge in the second, and vice versa, and also the form of the indictment. He then recapitulated the evidence. Speaking of Nowlan, he said, "Though his testimony was confirmed by that of other witnesses, yet his memory appeared so completely to have forsaken him, that it would be dangerous to rely implicitly on what he said. For instance, he was not sure whether he had had his dinner before lying down on his bed, neither did he exactly remember the act of lying down on the day in question, but supposes he did so, such being his custom in warm weather. This case (continued his Honor) is a very unusual one, and one of great difficulty. It is all dependent on circumstantial evidence. Did that evidence bear out the statement of the prisoner? The jury might think that in the event of Nowlan standing in the hut in altercation with the prisoner when the blow was given, blood would most likely have fallen on the ground, as well as on the bed. It might be their opinion that everything seemed to bespeak rather the work of a being instigated by the devil, tired of life, and quite reckless. They would however, carefully consider every little circumstance, for or against the prisoner, for even the most minute points were entitled to their most careful examination. His Honor concluded by stating, that in case of any doubt existing in their minds, as to any point for their consideration, the jury would of course give the prisoner the benefit of it.

The Jury after having retired for some time, returned and requested to know whether it were of any importance that there should be evidence of the weapon being held in the right hand, as alleged in the information.

His Honor said it was of no consequence.

The Jury then retired again, and soon after returned with a verdict of Guilty on the 2nd count, and not guilty on the rest of the information.

His Honor then directed the prisoner to be remanded, telling him he could hold out no hope that his life would be spared.

Supreme Court of Van Diemen's Land

Montagu J., 28 April 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 30 April 1841

WEDNESDAY, 28th APRIL

William Anderson, for wounding Bryan Nowlan, was next placed at the bar and addressed by His Honor.  He had been found guilty of an offence still capital in this colony, although not so now in England; his case was as bad and as atrocious as such a case could possibly be; he should offer no opinion upon it to the Gove[??]; but if the law is to be enforced in the colony, it [??] to be [?] iu [sic] this particular case, which was the first that had occurred since the law had been altered in England; if it was not enforced in the present instance, the sooner it was altered here the better.  His Honor advised the prisoner to calculate upon its execution, and passed sentence of Death upon him.

Notes

[1] According to AOT SC41/5, p. 72 by order of the Colonial Secretary Anderson was sent for life to Port Arthur.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania