[murder - Cassilis - convict escape - Aboriginal trackers - bushranging - Counties -capital punishment, error in sentencing - capital punishment, dissection]

R. v. Walker and Gore [1836] NSWSupC 56

Supreme Court of New South Wales

Burton J., 6 August 1836

Source: Sydney Gazette, 11 August 1836

SATURDAY, AUGUST 6.

Before Mr. Justice Burton and a Civil Jury.

William Walker stood indicted for the wilful murder of Thomas Woods, by shooting him with a pistol, on the 22d May last, in the district of Cassilis; and John Gore stood likewise indicted for aiding and abetting in the commission of the said murder.

Mr. Therry, who conducted the case for the crown, without making any statement to the Jury, called

James Driscoll - I am assigned to Major Druitt, upon his farm at Cassilis; on the 21st May, I was in the lock up of Mr. Busby, for being in the bush; I was sentenced to corporal punishment, but had to wait; I gave myself up to Mr. Sibthorp, by superintendent; when I absconded, Gore, with Reiley, Field, and Gray, went with me, Gray was with me, and Lipscomb in the lock up; the other prisoner belongs to Mr. Fitzgerald's station; on the night of the 24th May, the two prisoners came to the lock up (we were all asleep at the time) they knocked at the door, the constable Wm. Byrnes, enquired who was that? one of them said he had got a prisoner, whom he had found in the creek; Byrnes went for a piece of wood for a light; when he was putting the wood on the fire, Walker said, don't make a light, I want some tea and sugar; Byrnes point to a box said, there it is; they then put the constable into a corner, and tied him up; they searched the place, Walker enquired how many men he had in custody? he said four; Walker then said you have got a man named James Driscock; Byrnes said yes; Walker then ordered two to come out, and then another, and then they ordered me to come out; we all stood at the fire for a time, the constable remaining tied up; the prisoners then tied Woods and myself together by the hands; Walker stood at the door with a pistol in is hand, his face was painted, and he had on a pea jacket; it was Gore who tied us up; the constable asked what they were going to do with us; they said to carry the swag for them; Walker told Gore to take a bayonet, which was at that tie stuck in the wall; they then opened the door, and were going out, when I said to Walker, young man, I don't want to go into the bush; he put a pistol to my head, and bid me hold my tongue; Woods and me then, by Walker's orders, each took a bundle, Gore walked first, Woods and me in the middle, and Walker behind, with the pistol; they made us walk on the side of the road; we went towards Jones' Road, and halted near to Binnagaray, upon a little ridge; day then was beginning to break, Gore struck a light, and said they would have some tea; we made a fire, Gore put a large tree on the fire. Gore then ordered us to stand up back to back, and tied our four hands together; he then said he would tie an handkerchief round our eyes, so that we could see which way they went; Walker was sitting at this time upon a log with a pistol in his hand; when Gore tied our eyes, he stepped to one side; the pistol was then fire, Woodsfell, and me with him; Walker was about four feet from us; when he fired he came round, and stood over me; he struck me twice with the butt end of the pistol on the forehead, and knocked me down, a little afterwards I got up, and ran away, Walker after me; when I had got a little distance, I fell down over a tree; when I got up I saw Walker returning, and in a little time saw Gore and him standing by the fire; cannot tell whether Woods struggled or not, being myself so frightened; I made for Binngoroy station, when I got there I saw James Ryall, I told him what had happened at the lock up; I stopped there about an hour and a half, when Gore came I ran out of the hut, and concealed myself behind a sheep yard; I was then called in by one of the men; Gore met me at the door, he said to me, ``you are a lucky man, my life is in your hands;" he asked me if there was any blood on his face; there was not; his face seemed to have been washed; he asked me to say nothing about it, being frightened, I promised him I would not; he then got some water to wash the blood off my face; I had a basin of milk; he then asked me to go into the bush with him, but I refused, and went on to the head station, where Mr. Sibthorp was; I saw him, and told him that two men had come to the lock up, and taken us out; I mentioned the name of Gore, but not that of Walker; I did not know him; that was about seven or eight o'clock in the morning; the next day I was taken to see the body; I then said he was the same that had been tied to me; the body had been brought to Binngenay by those who found it; it was much burnt and shrivelled up; there was a wound on the breast, but it did not show plainly from having been burnt; Walker was facing Woods when the pistol was fired; Gore and I took the bush together; I stopped with him two days, when I gave myself up; during that time we robbed a sheep station belonging to Mr. King; we got some tea and sugar, and a pea jacket; it was by Gore's desire that we separated in the bush? when I met Gore at Binnegoroy, he said that he had heard I told Mr. Busby of the robbery at Mr. King's. [Further corroborative evidence being heard - the learned prosecutor for the crown called.]

Luke Sibthorpe. - On the 20th May last, I was at Bennegillaroy; I saw Woods on that day - stopt and searched him, he said he had been robbed of a pistol the night before; I took him into custody and gave him in charge of a constable; on the Sunday morning I received a note from Mr. Busby to muster as many men as I could - to get a black boy and meet him without delay. (He then corroborated part of Driscoll's evidence.) They went to track them. We could not see any tracks, but the black boy ran them easily, and said in his native tongue that there were four. Blacks are so quick in tracking, that he showed us where they had stumbled over bushes in the night, and the cause of their fall. As we were going along Mr. Busby cried out, Good God! here is the body. It was laying on a fire against a forked tree. I recognised it immediately; it was laying partly side ways but not so much consumed as to prevent identification. The black boy got sick and declined tracking any more that day, but said when the sun rose on he morrow he would be able to track the prisoners. We afterwards proceeded to Walker's hut and took him into custody. Thinking that Driscoll had something to do in the murder, I ordered him to go up to see the body. When brought to view the body I said, Driscoll is not that a horrible sight? He put both his hands up to his face and burst out a crying and said, ``Sir, Gore is one of the men who murdered him, I don't know the other man's name." (Driscoll then told him the same story as given in his evidence above.) This closed the case for the prosecution.

Mr. Windeyer, Junior, on the part of the prisoners, then took two objections: 1st, that since the issuing of the King's proclamation in November last, making legal counties in this colony, all the legality applied to them, as to counties in England. In all informations at home it was required that the particular country wherein the offence had been committed should be set forth. In this information it merely said in New South Wales to wit, whereas the country also should have been specified.

Mr. Justice Burton said he was quite willing to hear any argument upon the point, but the practice alluded to did not apply here for this reason - that the Supreme Court sitting here had jurisdiction over the whole colony, whilst by the English Common Law the offender must be tired in the county where the offence has been committed. If circuit courts were established here the objection might be good, but at present it was only one large country. He however would take a note of the matter.

Mr. Windeyer said, the next point was that the name of the deceased had not been properly proved, viz.: as to whether it was Wood or Woods as it ought to have been according to 2nd Hale page 181. In support of his opinion he alluded to the case of Sheen for the murder of his child.

Mr. Justice Burton, considered that the question of identity of person was one for the Jury; but even if it were good, it would be of no advantage to the prisoners, inasmuch as he would immediately direct a fresh information to be drawn up against them.

Two or three witnesses were then called, but their evidence contained nothing material.

His Honor, previous to summing up, requested the Jury would stand whilst he was going through the evidence in order that their attention might be kept awake, as no doubt from the length of time they had been sitting, some of them were fatigued. When he had gone very carefully through the whole case, the Jury retired for five minutes, and returned a verdict of Guilty.

His Honor then proceeded to pass sentence, in doing which he observed that it then became his duty to pass upon them that sentence the most awful a Judge could pass, as it was to usher them before the Great Judge of all the world. The Jury had found them guilty after a long and impartial trial. He (himself) had no doubt whatever of their guilt; he could have felt no hesitation whatever in returning the same verdict. There were few cases perhaps in which the guilt of the parties was rendered more plain than their's. It had pleased the Almighty God to place around them such circumstances as could not fail to establish a conviction. They might have thought that the darkness of night would conceal their guilt, but, it was well for all to know that where blood was shed the perpetrator rarely escaped in this world, or if he did, still an awful judgment awaited him in the next. Short was the time between a murderer's conviction, and his groan! He entreated them as they knew they would shortly have to appear before an all seeing Judge, to prepare themselves, by a confession of their guilt, not so much for the satisfaction of their Judges here, but by clearing their own conscience they might be the better prepared to enter into the presence of the Great Judge of all. He then proceeded to pass sentence of death upon them, and ordered them for execution on Monday morning.

Burton J., 8 August 1836

Source: Sydney Gazette, 9 August 1836

Before Mr. Justice Burton.

The two men William Walker and John Gore, tried on Saturday, were again put to the bar this morning. - His Honor addressing them, said - ``Prisoners, you are now placed again at the bar in order that a certain part of your sentence may be amended. You were convicted on Saturday, and sentenced to death. There was, however, an informality in that sentence, and the Judges have caused it to be amended. The Court would have been grieved to have brought you here unnecessarily, but you have been given longer time for repentance, of which I trust you make the best use in your power." The sentence of the Court was, that they should be taken to the place from whence they came, and on Wednesday morning to the place of execution, and there be hanged by the neck until they were dead, their bodies afterwards to be given over to the Surgeons, to be dissected and anatomised.

(It was the latter part of the sentence which constituted the informality, it having been omitted in the sentence passed on Saturday.)

Notes:

See also Sydney Herald, 8 August 1836. For the trial judge's notes of the case, see Burton, Notes of Criminal Cases, vol. 26, State Records of New South Wales, 2/2426, p. 108, noting that Walker was ``bond" (that is, convict) at the time of trial, and making no note of the civil status of Gore.

By a two to one decision in 1838, the Supreme Court held that the ``Colony of New South Wales" was not a sufficient description for a trespass. Justice Willis dissented, saying that New South Wales was one great county. (The majority judges were Dowling C.J. and Burton J.): Lewis v Klensendorlffe, Sydney Herald, 13 July 1838.

Walker and Gore were executed on Wednesday, 10 August 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.