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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Hill and McKay [1841]

murder - reward for capture - evidence, medical - capital punishment

Supreme Court of Van Diemen's Land

Montagu J., 23 April 1841

Source: Hobart Town Advertiser, 30 April 1841

            William Hill and James McKay stood indicted for the murder of one William Trusson, in November last year.

            The Attorney General, in opening the case, reminded the jury that it was their duty, should any particulars have reached their ears before entering the court, to dismiss whatever impression their minds might have received, that their verdict might be influenced solely by the evidence that was about to appear before them. "It now becomes my task," continued the Attorney-General, "to state the facts of the case as they have come before me, and which I believe to be true; but at the same time I think it my duty to state that though it is my impression the men before you are guilty, yet should the evidence adduced not be sufficient thoroughly to satisfy you that they are so, you should let them reap the benefit; if, on the other hand, the circumstantial evidence I shall lay before you are such as to satisfy you without doubt, however painful the discharge of your duty, I am sure that men who have shed blood will not receive sympathy; for any person, however philant[h]ropic must think they deserve the doom that will await them."

            Henry Pinfold, stock-keeper to Mr. G. Armitage, of Bagdad. Am employed in the new country; knew William Trusson. The last time I saw him alive was on Thursday, at about 10 in the morning. Saw his body on the Sunday week following; saw him alive at my hut; he told me he was going home. His hut was 3½ miles distant, near the Great Lake. His road lay across the Big River; think it was one Thursday in November last.

William Cooper, assigned servant to Mr. E. Nicholas. - I knew deceased as "Pittwater Bill;" knew his hut at the Lakes; remember going there one Friday afternoon in November last; saw the body on the Monday week lying in a hollow near the root of a tree. Edward Johnson, shepherd, was with me at the time; the body was 112 yards from the hut; on first reaching the dwelling on Friday we found it had been robbed; saw traces of a damper having been made on the table; the fire had been kindled; we remained there till the next morning (Saturday); found water, a dead kangaroo, and a pup fastened inside the hut. Got to the hut on Friday about four in the afternoon; also found bedding thrown about the house, part was on the floor, and part on the bedstead - the first had been raked up; no one came home that night; had not seen Trusson before since the last season.

William Luck, ticket-of-leave, shepherd to Mr. Flaxman. - Had engaged to remain at Mr. Broadribb's, but did not go up till after the murder; knew deceased, saw him last about three weeks before I saw him dead, he was then at Mr. Broadribb's farm at the hunting ground; gave him some clothes to take charge of, a fustian shooting coat. On Thursday, Dec. 3, went up to the hut where he had been residing; on the following morning found the body. Three men were there when I arrived; they remained with me on Thursday night. Saw a pup belonging to deceased, also the dog that used to accompany him. Henry Pinfold came to the hut on Saturday afternoon; I tried to get the dog to follow me; he would one way but not another, always leaning to the direction in which the bodies were afterwards found. Saw the dog coming from that direction on Saturday morning, again about the middle of Saturday night, and a third time on Sunday morning. William Daw, employed by Mr. Armitage, came to the hut to know whether I had any message for master; I went with him in the direction from whence the dog had come, and saw a fresh heap of stones with a large log of wood placed on the top; walked up and saw the trowsers of deceased through a crack in the stones. Went to the station of Mr. Armitage, jun., who accompanied by two men besides Dan and myself, returned to the spot and saw that a log (20 inches through by7½feet ) had been placed on the top along Trusson's back. The bodies were lying side by side, with the heads contrary ways; one man could not place the log where it was; the stones were piled up in the hollow of a tree forming a wall of two feet high; they were built up on each side of the log. The other deceased was Freeman, servant to Mr. Broadribb, and living in the same hut with Trusson; saw a knife used by Trusson; knew the handkerchief he was in the habit of wearing, the ground brown with red spots. On going to the hut looked for the coat I had given him, but did not find it; saw part of the same coat at the New Norfolk police-office; knew it by a small burned mark on the outside of the left sleeve, caused by ignited tobacco falling on it from my pipe about a month before sending it up. (Coat produced, but bearing the described mark on the right instead of the left arm.) Unless the sleeves have been changed this coat is not mind. Know where Mr. G. C. Clarke's hut is, about 13 miles from Tusson's. (knife produced.) Tusson's was of the same description (neckerchief shown) his was exactly like this. He wore a black plush waistcoat, no coat; believe Trusson had not a neckerchief on when found; he wore his trowsers, shirt, and shoes.

Thomas Smith. - I have been in Mr. Broadribb's service 6 years last January; knew Trusson, was with him as hut-keeper during three seasons before his death. Remember selling him a knife for 2s; he had had it in his possession nearly 3 years; I had frequent opportunities of seeing it, should know it again; deceased always carried it in his pocket. (knife shown) This is the same, should know it amongst 500; do not know of its being altered near the rivet when in the possession of Trusson; remember the silk neckerchief he used to wear, should know it again; he had it on his neck about a fortnight before his death; had constantly worn it since the 24th April; he had but one; I often washed it. (Neckerchief produced) know it well; am sure Trusson took his knife with him on the day in question, saw it with him about breakfast time when putting up his things to start. - it was then sound.

Edward Anderson. - I knew Trusson; remember selling him a neckerchief in April or May last; took it from my neck in presence of Thomas Smith; had worn it 3 days; should know the pattern (neckerchief brought forward); this is the same.

Sarah Jeffries. - I now reside at Cluny, some time ago lived at the hunting ground, where I knew the deceased, and remember issuing stores to him on 24th December, 1839; I let him have a jacket, swansdown waistcoat, and a pair of small clothes; do not say I should know the waistcoat again, there are so many alike; he made a hole at the upper part of the sleeve putting it on; I also gave him a blue striped shirt; saw one resembling it in New Norfolk (Waistcoat shown). It is much like the one I issued to deceased and has a tear in the same part of the arm; he left the things in my keeping up to the time he went to the Lakes; heard of his murder two or three weeks after.

George Wooley, ticket-of-leave, in the service of Mr. G. C. Clark. - In November last, I lived at Patrick's Plains, near the Lakes; saw the prisoner at my hut on the 29th November last, had never seen them before; they stated they were Bothwell constables in search of bushrangers. They both wore round jackets, and were armed, one with a fowling piece, the other with a carbine, both percussion. I did not examine the arms, they remained half an hour, breakfasted there; I am quite certain the prisoners are the men; saw Robert Prince examine the guns; I directed them to Mr. Kemp's hut at the Lakes.

Robert Prince, carpenter in Mr. Clarke's service. - Remember seeing the prisoners on the premises on the 22d November; both were armed; I examined the carbine (carbine produced); this is the same.

Andrew Ryley, sawyer, employed by Mr. Thompson, New Norfolk. - I know both the prisoners; have known McKay longest; about 2 years since first became acquainted with him at Port Arthur; did not know Hill till the 29th January last, when I apprehended him; was then living at Brusby Bottom (5 miles from New Norfolk), on this side of the river. About noon, while sitting in my hut smoking I heard the word "stand," went outside and saw both prisoners armed; know McKay, and shook hands with him; he told me he was very much fatigued, and wished to have some tea made; I did so, and carried it, accompanied by McKay and Hill, to a gully half a mile behind the hut. McKay told me Hill had been shot, and would like to have some wine; I saw I was going to New Norfolk to settle with Mr. Thompson, and would bring wine and rum with me on my return. McKay said he would like to have some run. I told him I might not return that night, but not to be uneasy as I would be back as early as possible in the next morning. Went to New Norfolk; where I purchased both rum and wine. The next morning my mate (Gomme) and I went up to the prisoners, taking the rum and wine, McKay asked what news I had from New Norfolk. Told him there was a reward for their apprehension as they were suspected of being the murders of Mr. Broadribb's shepherds. McKay answered, "yes, we are; I am saying more to you than I would to any other two men in the world, but at the same time any "no" is as good as your "yes". I told him Mr. Thompson's cart was coming for timber, that I must go to the hut to deliver the memorandum, but would soon return; Hill was sitting by McKay's side, quite near enough to hear what we said, we were all nearly touching; Hill looked very hard at McKay, but did not say anything. My mate and I then left McKay said they had been far back in the new country, where a leaf would not grow on the trees, and where they could find nothing to subsist on. My mate and I deliberated as to the best method to be pursued, to apprehend them. We went to a man named Grant, put him into the secret, and placed him behind a gum tree, twenty yards behind our hut. My mate and I then returned to the prisoners, I told them there was no one in the hut, and that they had better come down, as having plenty of rum there we could enjoy ourselves. They did so. I gave McKay some hot water to dress Hill's wound, assisted in taking off Hill's clothes. He had laid his piece on the bed, McKay placed his behind but close to him, my mate sat near it. I seized Hill's gun, and sprang to the door, I levelled it at him, when he said "pray don't shoot me, if you do, shoot me dead." I told him there was no necessity for shooting him, but to remain where he was. Grant came up with a stick in his hand, and secured the prisoners, whom we took to New Norfolk that evening; and delivered over to the Police. Before leaving the hut, I saw Grant search them; he took a knife from McKay, who said "I hope you will throw that knife away, and not let it tell against me.: Grant kept possession of the knife; The prisoners were delivered in the same dress as they were found in.

Cross-examined by prisoner McKay. - Do not remember appearing at the New Norfolk Police-office, was confined in the watch-house three weeks after delivering you up; till the day I gave in my evidence. Did not make any statement of the avowal of the murder till I went up for examination; heard then you had stated to District Constable Smith something concerning me, but did not know what - delivered you to Mr. Walton, the gaoler, and to Smith, as armed man at large in the bush; think I told Smith you had confessed the murder, it was two or three days after your capture.

By His Honor. - I had seen an advertisement offering £50 from Government, with a free pardon; £100 from Mr. Broadribb; and £40 from the servants; had not heard of a passage to England; do not know whether entitled to reward without the conviction of the prisoners. My impression was that it was held out to any one leading to their conviction - am a prisoner for life.

Absolute Gomme, sawyer (prisoner for life), corroborated the statement of the last witness, with this difference, that he made McKay ask Ryley whether a reward had not been offered for their apprehensions, instead of Ryley's broaching the subject as just before stated by himself. Except this discrepance, the expressions of the two men were verbatim the same.

John Grant. - I assisted in apprehending the prisoners on that occasion; I took a knife from each; the one produced, from McKay, who said "throw away that knife, there is no occasion for taking that in." I tied McKay's hands behind his back first with my braces, and after with a handkerchief taken from his pocket, and afterwards delivered to District Constable Smith, together with the knives, and guns &c.

J. Smith, district constable at New Norfolk, stated that the prisoners were taken to the watch-house between 9 and 10 on the evening of the 27th January last, that he had received the property produced from Grant. A week or ten days, he said, elapsed before the two sawyers stated their knowledge of the murder, of which circumstance McKay was apprised the day before appearing at the Police office. On entering the gaol next morning, he found McKay in his shirt sleeves, asked what he had done with his jacket. McKay's shewed his legs, round which he had bound some strips, as he said to keep off the chafing of the irons. On being asked where the remainder was, he replied "it is gone, find it if you can." Smith said he had got the jacket produced (cut in pieces) from Motte, the New Norfolk javelin man.

Constable John Newman, stationed at New Norfolk, deposed that he had charge of the watch-house in January last, when the prisoners were brought in, and that he received the articles above mentioned from Grant and the two sawyers who delivered them up.

Henry Motte, javelin man at New Norfolk, said, that being directed by District Constable Smith to search McKay's cell, found the coat torn in pieces, and secreted under one of the floor boards. The waistcoat had been concealed in the bed tick.

John Greig, tailor, had been sent for to say whether it was possible to place a left sleeve on the right side of a coat, and "vice versa"; also whether in his opinion the sleeves of the coat produced had recently been taken off, to both of which questions he answered in the negative.

Joseph Barnard, assigned servant to Mr. Broadribb, at the Hunting Ground, saw prisoners on the 22nd of November last, at the Broad-marsh, they had each a gun; I had just left the two deceased, and was driving a bullock cart when I met the prisoners; they asked me whether I had called at Mr. Clarke's hut, Patrick's Plains. I said I did. They wanted to know whether I had been told they had been there; I replied I had learnt that two constables had been there. I left the two deceased at a hut near Big Lake. The nearest hut to Trusson's is three miles and a half. Trusson had not on, when I left them in the hut, the waistcoat before me, but Freeman had on one very similar.

Mr. Hall, assistant colonial surgeon at Bothwell. - I recollect attending an inquest at Mr. Broadribb's run on the 11th of December last, saw the remains of two persons, one taller than the other; examined the body of the shortest; saw Pinfold there. The cause of the death of the shortest was, injuries inflicted on the back, and on the lower part of the head. In the lower part of the back there was a hole about the size of the palm of a small hand, extending into the abdomen. The last lumbar vertebra was totally destroyed. Three inches higher up on the back were two smaller wounds, resembling shot holes; these injuries were occasioned by gun shot wounds, decidedly mortal. The injuries on the head were scalp quite dry, and adhering to the skull. On the left side, and back of the head, were two small triangular confusions, laying the cranium bare. The occipital and left parietal bones were fractured. The wounds on the head could not be called mortal. Accompanied by fracture of the skull, they might produce death, though not necessarily; saw the stones removed from round the bodies, cannot judge whether the fracture was caused before or after death, did not see any large stones lying on the head, but had one been thrown on that part, it might have fractured the cranium. The shot entered the lower part of the body, and penetrated the intestines.

Thomas Greenfold. - Saw Dr. Hall examine the bodies of deceased, suppose it to be them by their dress.

The prisoner Hill did not offer any defence.

McKay for his defence said:-

Your Honor, and Gentlemen of the Jury. "These men have been swearing away our lives for a reward; they only mentioned what they have done to rid themselves of the charge I had laid against them at New Norfolk, of having retained in their possession articles taken from us; I am well aware that no gentleman will believe that a man who has committed murder (which God forbid I should) would be so foolish as to entrust the secret to another. I am sure no gentleman will believe it."

His Honor, after recapitulating the evidence, said he would leave the case entirely in the hands of the Jury, confident as he felt, they would weigh every circumstance, as well for as against the prisoners.

The Jury then retired and after deliberating for half-an-hour returned with a verdict of "Guilty" against both prisoners; when

His Honor said. - "William Hill and James McKay, I shall not pass sentence on you now, but it is my duty to tell you that, as I perfectly concur in the verdict of the Jury, and feel as confident that you are guilty of the murder as if I had seen you perpetrate it, you must not entertain the least hope, for of hope there is none; Before this day week, or at all events before many days, you will not be in this world; you must therefore be prepared."

Supreme Court of Van Diemen's Land

Montagu J., 28 April 1841

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

The court sat at eleven o'clock, for the purpose of sentencing the prisoners, and Hill and McKay were first placed at the bar. On being asked if they had anything to say why they should not be sentenced to die according to law, said respectively that they only wanted justice.

            His Honor then proceeded to pass sentence, and addressed the wretched men in a very feeling and impressive manner. He observed, that up to that very moment the wretched men expected their lives would be spared, notwithstanding what he had said to them at the close of their trial; this was a perfect delusion, and showed that they did not believe what His Honor had said to them at the trial. There could be no doubt whatever of their guilt, for, putting everything out of the question, excepting the knife, that alone was sufficient to convict them; but there was other strong and convincing testimony; there was the coat and the waistcoat. He conjured them in the most serious manner to give up all idea of their lives being spared; although His Excellency the Lieutenant-Governor has the power to extend mercy, it was not in the power of the Government to suspend the sentence His Honor must pass, after what had been done by the Judge and the jury. His Honor hoped that they would confess after the sentence had been passed, and that their minds would be changed; the Reverend Mr. Bedford, whom he saw before him, would afford them the only consolation that they could now derive; I, continued His Honor, can only consign your bodies to destruction, to dissection; but Mr. Bedford, always anxious on these occasions, may yet benefit your immortal souls; to him, therefore, and to his instructions, as the only friend you have now on earth, I implore you to pay every attention, as the only interest you can have for yourselves.

            His Honor, whose address was listened to with breathless attention by a very crowded court, seemed infinitely more affected than the wretched criminals, who maintained an unchanged apathy throughout; the last sentence of the law was then passed upon them, and their bodies ordered to be dissected and anatomized.

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