Spotlight: Trial of Kavenagh.

Austral-Asiatic Review, Tasmanian and Australian Advertiser (Hobart Town, Tas. : 1837 – 1844), Friday 15 September 1843, page 4


TRIAL OF KAVENAGH.

Contrary to general expectation, it being now after two o’clock, Laurence Kavenagh was ordered to be placed at the bar, to take his trial for the robbery of the Launceston coach at Epping Forest. After some little delay, he was accordingly ushered into the dock, and a fresh jury was called, the other jurors being discharged altogether.

Laurence Kavenagh was capitally charged, under the colonial Act of Council, with robbing James Hewitt on the 3d of July last, being at the time armed with a certain offensive weapon, to wit, a gun — with puting [sic] the said James Hewitt in bodily fear, and stealing from him a watch of the value of 50s., and seven one pound promissory notes.

To this information the prisoner pleaded Not Guilty; in a very cool manner, and addressed the Court, requesting to have counsel assigned for his defence. He had no ways and means, he said, of employing one.

His Honor said that he had no power to appoint a counsel for the prisoner. He had read the depositions, and he did not see anything in them to justify him in doing so. It must not go abroad that, in all capital cases, a counsel was to be appointed. At Port Arthur, his Honor knew that, in all cases of murder, it was supposed that the Court would assign counsel to the prisoner; this was a common notion there. His Honor did not see he could appoint a counsel in the prisoner’s case, unless upon petition. The Attorney-General observed, that at home the Judge asked the counsel to assist a prisoner in his defence, if the Judge thought it was a case which required the aid of counsel. The learned gentleman stated, that on looking over the depositions in the recent case of the two boys who were charged with the murder of their overseer at Port Arthur, he had felt it his duty, as Crown prosecutor, to suggest the appointment of counsel, as he saw that points of law were likely to arise; but there was nothing, in the present case, to warrant such an appointment.

His Honor told the prisoner, that he did not think he should be justified in putting the public to the expense of assigning counsel to him. It would do him no good, nor the public either. In cases where points of law were likely to arise, or in which there was any difficulty, his Honor would always appoint counsel; but here there was nothing complex or ambiguous in the evidence, and it would be of no service to the prisoner.

The prisoner — As you think proper, your Honor.

The Attorney-General, after a short address, in which he explained the law of the case, under the Colonial Act, proceeded to call his witnesses.

James Hewitt, coachman to Mrs. Cox — Had seen prisoner at the bar before, on the 3rd of July, in Epping Forest, witness was driving the coach; Mr. Darke was with him on the box; it was about a quarter-past ten in the morning; there were three men came up, and desired them to stop; they were armed with guns; the prisoner at the bar was one of the men; he had a gun of some description; they came up in front of the horses, and desired witness to stand, and said they did not want to molest any one, only to rob them; they told them not to be afraid; the three men had their guns pointed from their shoulders; witness could not tell which of the three men told him to stop; witness stopped his horses, because he expected they would have shot at the horses, or something of that sort; the arms were presented at witness; the passengers were Miss Hilton, Mr. Darke, and Mr. Jacobs, who with Mrs. Cox, was inside; witness was ordered off the box; he came down, because they presented their arms at him; they robbed him of his watch; they asked him for what he had got, and witness told them they had better take it themselves, and then they would be sure of it; witness let them take his watch, to save further bother; witness expected that if he had not let them take the watch quietly, they would have taken it by force; he was afraid to refuse; they took £7 in notes, and a watch; the watch from his fob, and the notes from his breeches pocket; witness had no doubt the prisoner at the bar was one of those persons.

By his Honor. — The prisoner stood guard at the side of the road, when witness first saw him; this was after he (witness) got off the box; they made no threat, but told witness to stand, which he instantly did.

Mr. John Charles Darke was passenger on the Launceston coach in Epping Forest, on the 3rd of July; Hewitt was driving it; a man made his appearance in front of the coach, armed with a double-barrelled gun; the prisoner was that man; when he got to the horses heads, he desired the coachman to stop, when two other men came out of the bush; one of the other men desired them to get down; the prisoner told them to stay where they were, until he had ascertained who were in the coach; Hewitt got down from the box; witness saw one of the men take something from Hewitt, which witness thought was money; the double-barrelled gun appeared to be presented at witness and Hewitt, on the box. The prisoner at the bar said, “I dare you to stir; don’t stir, or I will shoot you.” His gun was then pointed to witness and Hewitt; the gun was under his arm, not to his shoulder; witness had never seen the prisoner before, nor either of the other two persons; witness had not the slightest doubt that the prisoner was one of the men; he knew him the moment he saw him in the jail; he (witness) never looked through a hole in his cell, to identify Kavenagh.

By the prisoner. — You were carrying the gun with the butt-end to your arm pit; I never came to look through the cell; the gun was a double-barrelled gun; I am quite sure of that; when I heard that one of the bushrangers was wounded, I thought there were strong doubts whether they were the party that robbed the coach, and I went to the gaol to ask Mr. Capon about it, as I was about to leave the colony.

By His Honor. — Mr. Price addressed the prisoner as Kavenagh, but this was after I had recognized him; I recognized him going up the stairs, before he was brought into the room.

By the Attorney-General. — The moment I saw him I knew him, as one of the men who robbed the Coach, but did not know his name till Mr. Price addressed him.

Prisoner. — Pray Sir, did you come free to the Colony?

Witness. — I did come free into the Colony.

By His Honor. — I knew him by his face, his figure, and his voice.

By a Juror, (Mr. Carter). — He had not the same dress on when he robbed the Coach as he has on now; he had on a drab coat.

Mrs. Mary Ann Cox corroborated the testimony of the other witnesses, as to the stopping of the Coach in Epping Forest, by the three men, the prisoner at the bar as one of the persons who stopped it; she was quite positive he was one of the men. This being the case for the prosecution, his Honor intimated to the prisoner that this was the time for him to make his defence. The prisoner bowed, and spoke as follows:— I have seen a good many scenes of misery in my time; but what I saw at Port Arthur beat all. There is one circumstance that I feel bound to mention. I was driven to a place of worship by the lash of the law. My own prayer-book was taken out of my hand by the Superintendent, and I was forbidden to read it under pain of severe punishment. I do not blame the Superintendent; it was not his fault. But I put it to any conscientious Protestant in this Court, whether he would like to be driven to a Catholic place of worship, or punished for going there! All men are not of one mind at Port Arthur. There are some men who forget that they have been men. I have not forgot that. I flew from Port Arthur on this account, at the hazard of that life I am now about to forfeit. While I was in the bush, I would rather have been shot than have fallen into the hands of the Government. But I fell into a mistake; for since I have been in custody, I have been treated well (with emphasis), and I am very much obliged to the gentlemen for their kindness and attention.

Gentlemen, after I went into the bush, and when I was under arms, I committed no act of violence or cruelty, and did nothing but what became a man. I did no violence to anybody. Stains of blood we always avoided — both me and my companions; and if I have been unfortunate, and done wrong, thanks be to God I have no stain of blood upon my hands! If I abstained from violence, it was not because I expected any mercy while standing at a bar like this. I did not surrender through any exportation of mercy, but through a feeling that I had in my own breast, having met with an accident. I would have pleaded guilty to this charge, only I was accused of having used violence, and violence I never used to any one; but if I came against armed men, I would stand against them the best way I could; but as to using violence against an unarmed man, or an unarmed party, I would not be guilty of so cowardly an act. I have nothing more to say, your Honor. I have no witnesses.

His Honor addressed the Jury; he explained in his usual lucid manner, the nature of the charge against the “poor man” at the bar, and the fatal penalty attached to its commission. Upon the evidence little was said, as it was explicit, plain, and incontrovertible. The defence set up by the prisoner, his Honor observed, was being forcibly driven to a place of worship contrary to the tenets of his own religion, and this was the only defence; but it touched not the duty of the jury, neither had they any evidence of such a fact; yet if that was the case, it was most detestable and cruel tyranny, and an instance of bigotry against which his Honor, for one, would most resolutely set his face. Why the prisoner should have stated this circumstance, his Honor did not know, unless it was to excite the compassion of the jury; but their duty was plain and straightforward, and must be performed without favour or affection.

The jury retired for about twenty minutes, and then returned a verdict of Guilty.

The prisoner was then remanded, his Honor deferring his sentence, but affording him no hope that the capital part would be abandoned. The many outrages committed by the prisoner and his companions, and the anxiety and terror which they had caused in so many families, rendered an example necessary. His Honor was glad to see the prisoner in a state of mind so favourable to the reception of that religious instruction and consolation which would be abundantly afforded him. He earnestly hoped that such a state of mind was sincere; and although his Honor could not deny that the prisoner had used no violence, yet no mercy could be extended to him on that account.

The trial lasted but a very short time, and the prisoner throughout preserved a demeanour cool, firm, and collected; there was nothing of the bravo about him, and he appeared fully aware of his situation; he expected no mercy — and he asked for none; and he delivered his defence in a style of natural but simple eloquence which was extremely affecting. He related the cruel treatment which he had received at Port Arthur, with an expression of indignant feeling, which to our minds carried a conviction of its truth, while he avowed his abhorrence of bloodshed, with a fervor which evinced his sincerity. He was dressed in a long dark great coat, and had his left arm in a sling; he appeared, otherwise, in good health. He is rather a good looking man, with an expression of vivacity and intelligence on a fair countenance. We need scarcely add, that the Court was crowded throughout the whole day. — Colonial Times, September 12.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s