Bell’s Life in Sydney and Sporting Chronicle (NSW : 1860 – 1870), Saturday 1 June 1867, page 5
Conviction of the Bushrangers, Thomas & John Clarke.
SENTENCE OF DEATH!
CENTRAL CRIMINAL. COURT, TUESDAY, MAY 28.
(Before His Honor tho Chief Justice.)
WOUNDING WITH INTENT TO MURDER.
Thomas Clarke and John Clarke were indicted for that they did, on the 27th Apr last, near Jinden, in the colony of New South Wales, wound one William Walsh, with intent to murder the said William Walsh.
The prisoners pleaded not guilty, and were defended by Messrs. Dalley and Blake, instructed by Mr Joseph Leary. Mr Isaacs, Solicitor-General, prosecuted on behalf of the Crown.
The history of the capture of the outlaw Thomas Clarke and his brother John, when the prisoners fired upon and wounded Walsh is familiar to our readers. We therefore deem it only necessary to give the opening of the case by the Solicitor-General, the summing up of the Judge, the verdict and the sentence.
The Solicitor-General, in opening the case said the jury had a duty of a most difficult nature to perform. They were called upon to try the prisoners at the bar on a capital charge and it devolved upon them to weigh the evidence carefully as it applied to one or both prisoners Thomas Clarke was outlawed by an Act of the Legislature for several felonies. It therefore became the duty of the police to pursue him and secure his apprehension. In the discharge of this duty, it is alleged by the Crown that a constable was shot at and wounded by Thomas Clarke. With regard to the prisoner John Clarke, it was alleged that he also, in company with his brother, fired upon the police sent to arrest them, and that by Thomas Clarke constable William Walsh was wounded. He was not anxious to anticipate any portion of the evidence; but he believed it would be such as to bring the charge, from the lips of three or four witnesses, conclusively home to the prisoners. The principal facts were these: On the evening of the 20th April last, a party of police, under the command of senior-constable Wright, consisting of constables Walsh, Lenehan, J. Wright, Egan, and an aboriginal tracker named Sir Watkin Wynne, arrived close to a hut neat Jinden. They saw, at about 1 o’clock in the morning of 27th April, in a paddock in front of the hut, two horses, which they led towards a haystack. At about 6 o’clock the same morning they saw the two prisoners, Thomas and John Clarke, coming out of the hut towards the horses. The party under sub-inspector Wright attacked the prisoners, who retreated to the hut, and fired upon their pursuers. Constable Walsh and the aboriginal tracker Sir Watkin had approached nearer to the hut than the others. Thomas Clarke, who knew constable Walsh, deliberately fired at him, and wounded him in the thigh. After both had seen Walsh, whom the prisoners knew, it would be proved that John Clarke fired, and wounded Sir Watkin. This shot was fired by John Clarke, through a square hole at the end of the hut. It would also be proved that when the prisoners surrendered to Walsh that there was no one in the hut when the firing took place but Thomas and John Clarke. The nature of the wound indicted upon constable Walsh, the subject under immediate inquiry, would be described to them, and other circumstances that would point to the guilt of the prisoners. The crime, in law, was one which would deprive the prisoners of life. It was, therefore, a case of life or death with which the jury had to deal. The jury had thus a solemn responsibility cast upon them. They had sworn to give a verdict according to the evidence. If any juror, from conscientious principles, had an objection to find a person guilty, when he knew that the effect of his verdict would deprive a fellow-creature of life, he was equally guilty of a serious crime if he continued to sit in the jury-box, and refused to give his verdict according to the evidence because the extreme penalty of the law was involved. He felt sure, however, that the jury would discharge their duty fearlessly and conscientiously, without any feeling as to the effect of their verdict. The evidence of the witnesses would be given in a straightforward manner; and if they detailed the circumstances to which he had alluded, they had only one duty to discharge, solemn as it was to return a verdict of guilty. It was fortunate for the prisoners that they were in a country where the laws allowed them a fair and open trial. They were fortunate also in having secured two gentlemen of great learning, of great ability, and great eloquence to defend them; and they were tried before a magistrate, impartial, of great wisdom and experience in criminal practice. No doubt the two learned counsel, Mr Dalley and Mr Blake, would separately address the jury. After which they would have the lucid summary of the evidence by the Chief Justice. It would then rest with them to pronounce their verdict. If that verdict should be guilty, then the further duty of disposing of the prisoners devolved upon another power with which the jury had nothing to do. If the evidence was clear, they must not flinch from pronouncing their verdict. If there was any fair and reasonable doubt, they would be bound to give the prisoners the benefit of it. He would now call the witnesses to establish the charge.
[The witnesses for the Crown were then called and examined, after which, Mr Blake addressed the jury for Thomas Clarke, and Mr Dalley for John Clarke.]
His HONOR then summed up. He said that considering the great importance of this trial, he must express his regret at the great length to which the trial had extended; because it was impossible but that the attention of the jury must have been fatigued. Many extraneous matters had been introduced, but the facts lay in an extremely narrow compass. The prisoners stood charged with wounding a constable, in discharge of his duty, with intent to kill him. The first question was, did the prisoner Thomas Clarke fire the shot, and wound Walsh? Secondly, what was his intention in firing the shot? Walsh’s evidence, supported by that of more than one other witness, proved that the shot proceeded from the revolver of Clarke. Whether the shot fired from that pistol reached the body of the constable directly, or whether it touched the ground first, was a matter, of no moment.
The simple questions were, first, was the wound inflicted by the prisoner at all? If not, it would be absurd to suppose that it was inflicted by persons standing behind Walsh. Whether the prisoners turned round and shot him or not, no one behind Walsh inflicted the wound; since the wound was inflicted in the man’s front.
He (the Chief Justice) would not follow the learned counsel into any question as to the propriety of the punishment of death. He would suppose that the jury would discharge their [maths?] and find simply a matter of fact and of inferences arising from fact according to their conscientious views, and not for one moment be induced to swerve from the truth by any consideration of what the result of their verdict would be. Neither did he think it necessary to make any remarks on the Felons’ Apprehension Act. He understood Mr Dalley to say that the necessity for that Act was a disgrace to our civilisation. ln that he (the Chief Justice) agreed with him. The existence of the outrages which gave birth to that law was discreditable to us. The law had been recommended from this bench years before it was passed, and was simply a re-enactment of laws as old as the time of Alfred the Great, and adopted by Sovereigns the most enlightened that England ever had known. It was adopted here in consequence of a series of outrages that unless checked would paralyse industry, and render all property and life insecure. It was a system of outrage not directed against large property or for the re-dress of grievances; but against all classes of the community, rich and poor, high and low. Where have those robbers been known to pass by the hoards of the poor man, or of the widow or the orphan when it suited their purposes to rob them? They had been the common robbers of all classes; and they had been murderers of the worst kind. The slightest resistance had been met by attempts to take life. The law was directed only against persons having arms in their hands and likely to use arms in taking life. And not until a criminal had committed a crime punishable with death was he outlawed. Notice was given in every quarter of the country, and then only could the outlaw be shot down. That is the law as it stands in our statute book. (But for the purpose of this trial it was of no importance whether this man was an outlaw or not. It would be quite sufficient if the jury found that the constables were acting with a common design to take Clarke, believing that he was outlawed, or that he had committed a felony. A constable has power to arrest any man whom he suspects to be guilty of felony; and if he cannot otherwise take him, he has power to shoot him down. The law has always been so. The constables are ministers of justice. And are they to expose their own lives to thieves and murderers without the protection of the law? Will any Judge uphold it as law that a constable is to wait until he is shot at, if he sees that revolvers are worn by the men he is seeking to arrest? Do they meet as soldiers in single combat, in honourable warfare? Although he made every allowance for gallant feeling in a man who having shot at another, and finding himself shot, asked and granted forgiveness, he (the Chief Justice) could not but feel it to be a humiliation that this constable (Walsh) on the impulse of the moment did not remember that these men were charged with felony and murder; that he descended, as a minister of justice to shake hands with a man whom he believed to be a robber and a murderer, was a degradation to his character. He (the Chief Justice) had no notion of such tampering with crime. To treat such men cruelly would be barbarous and un-English; but the constable might have said when the man held out his hand, “No, sir, you have shot me, and I have shot at you. I forgive the personal injury; but you are my prisoner. We are not on the same platform. My hand meets not that of a man whom I believe to be a felon.” He (the Chief Justico) sat there to see principles of honour and honesty carried out, and to teach men right notions, and how to act up to them, and not to let the land of his adoption, the land of his children be disgraced by such deeds as these. But these remarks had nothing to do with the trial. A man must be supposed innocent of all crimes laid to his charge until found guilty. It is nothing to a constable whether the man he seeks to arrest is guilty or not. If he is charged with felony, it is his duty to surrender, and it is the duty of the constable to arrest him. The question was did the prisoner Thomas Clarke shoot. If they had any reasonable doubt that he did so, they must acquit both prisoners. They were not nicely to weigh the probabilities of opposing evidence. The next question was this — Was Walsh, when he was shot, in the execution of his duty as a constable endeavouring to arrest the Clarkes for felony, and one of them because he believed him to be an outlaw? The evidence was that a party had been formed to arrest two persons, whom they believed to be guilty of several robberies, and of more than one murder. Then if so, were the Clarkes, or was Thomas Clarke conscious of that fact? On this subject his Honor read a short extract from Archbold to the effect that when an officer of justice is killed in the discharge of his duty, in quelling an affray or arresting a person charged with felony — if the slayer know: the officer’s business, the slaying is murder. The question was, did Thomas Clarke, when he fired at Walsh, know that he was a constable; According to the evidence Clarke, when within twenty yards of Walsh, turned round and fired at him. Walsh said he was known personally to both prisoners. It was said that when Walsh came back with his new party, Thomas Clarke said to him “If I had known you were here, I would have surrendered long ago.” But he also said “I called for you several times.” How could he call on the man unless he knew him? The next question was, did Walsh do more than was reasonably necessary to protect himself and to apprehend the prisoners? A constable is not bound to wait until he is shot at. He has a right to use his own firearms. (His Honor then read part of the evidence of Walsh, as to at Thomas Clarke, and that Thomas Clarke turned round, took aim at him (Walsh) and fired.) A person who aims at a vital part, whether the person shot at dies or not, is responsible for his intention. Something was said about discrepancies. The jury would judge how far they were material. If they met with two or three persons who saw an event, they would agree in their account of the event, but differ as to circumstances. The more witnesses, the more variations there would be. One man may have been so excited that he forgot the nature of the ground over which he passed. (His Honor then read the evidence of William Wright as to his calling on the prisoners to stand and surrender.) The question remained whether, from all circumstances, the prisoners were likely to have known that they were officers of justice. Then came this great question, did or did not the prisoner Thomas Clarke, at the moment he fired intend to take life, for nothing he did afterwards could make him guilty of this charge. Mistakes might be made as to a man’s intention. But looking at the matter as men of common sense, did they believe in their hearts that this man did intend to take life? As to his having no bad feeling, because he did not take life afterwards when he was safe in the house, it might be that he felt that it was better to abstain when there were at least two to one against him. He might have thought that to take life would be useless. When he shot he may have thought that to take the life of two or three would diminish the numbers of their enemies, whereas by merely wounding they would not accomplish this, for a wounded man might still fire on them. By law a man is presumed to intend what circumstances show to be the natural and inevitable consequence of this act. What was the probable consequence of the man’s turning round and firing a revolver at a pursuer within twenty yards of him? This was a maxim of law from the earliest times; and it was not merely a rule of reason and propriety. When a man does an act, is it not natural that that which that particular act is likely to effect the man intended to effect? A man fires a pistol at another’s head. Does it not seem that he intended to take his life? That was the whole of the case as respected the prisoner Thomas Clarke. Now came the question as to John Clarke. He did not fire the shot. The rule is if two or more persons are engaged in an unlawful act, every one is responsible for the act of the others. If men go out for a lawful purpose, and one does something quite apart from the common purpose, there is no reason to invite the others. But if men go out for a common purpose of robbing, and one commits a murder in so doing, all are responsible as murderers. That is a rule that pervades the whole of the criminal law. And it is founded on common sense. It tends to deter men from banding together for unlawful purposes. There is a difficulty in this case. What illegal design were John and Thomas Clarke concerned in at the time the shot was fired? If they had been inside the house, doing all they could to kill or wound the constables, they would both have been engaged in felony. Then whatever one did the other was responsible for. That is the general principle. It is founded on good sense. But at the time when Thomas Clarke fired, John was committing no crime. He was endeavouring to run away. There was no crime in that.
The constables were entitled to shoot him for it. But it was no crime to try to escape. If he turned round and endeavoured to shoot the constable then he was guilty of murder. The difficulty is this: At the time the shot was fired they were both running away. The common design did not seem at that time to be illegal.
John must have known that the constables were endeavouring to arrest his brother. Whether he thought the constables sought to arrest both, or only his brother, was he acting in concert with his brother in resisting Walsh? They were both running away. Thomas turned and fired; John fired a second afterwards. Was his meaning, at that time, to kill or wound the apprehending constable? or was it merely to prevent his own or his brother’s apprehension? If the jury found that John was endeavouring to prevent the arrest, and intended to help his brother to the uttermost, not intending to kill but to wound, so as to prevent the apprehension, he would be equally responsible with his brother, because then there was a common design to help each other against the constables at all hazards. If the common design of wounding any one of the constables were proved, then, though John might not have intended to have killed Walsh at the moment, he is responsible for the capital felony. This is a point of law entirely new, and matter of reasoning from general principles alone. With these remarks he left the case in the hands of the jury.
His Honor concluded his address at ten minutes past 10.
The jury returned into court at 11 o’clock with a verdict of guilty against both prisoners.
The prisoners, in reply to the Clerk of Arraigns, had nothing to say why sentence of death should not be passed upon them.
The CHIEF JUSTICE, amidst the breathless silence of a very crowded court, then proceeded to pass sentence in a most impressive manner, as follows :— Thomas Clarke and John Clarke, if, in the opinion of most of those who hear me, or if it should be thought by a large portion of the community, that you are now about to receive a just retribution for your crimes, it is proper for me to say that no such feelings influence this Court. Such a principle does not belong to our law. You are not to receive punishment as a retribution, but because the taking of your lives is believed to be necessary for the peace and good order, for the safety as well as the welfare of the community: because of the example and warning that a capital execution may hold out to others, by acting as a terror and a restraint from the committal of similar crimes of which you stand convicted. This is the principle, the true principle, of all human punishment. I told the jury they were to conclude that you were innocent of those various crimes in respect of which efforts were made to apprehend you, and by which you were apprehended, and the jury took for granted that you were innocent. But now that I have to pass sentence upon you, I am not restricted by any such feeling. It is proper, however, in what I may say, that I should not hurt your feelings, nor add anything to your degradation, but for the good of the community show what really is the extent of the crime either committed or reasonably supposed to have been committed by you, and upon which the Executive will be asked whether mercy can be extended to you. Thomas Clarke, I hold in my hand a list of offences of which you stand charged within the last two years, and the amount of the whole, exclusive of murders of which you are supposed to be guilty, there are nine robberies of mails and thirty-six robberies of individuals; and among the individuals whom you have robbed there are all classes — Chinamen, labourers, publicans, storekeepers, draymen, and settlers. With respect to you, John Clarke, I find that the offences charged against you within the last year, most of which were committed in company with your brother, amount to twenty-six robberies. Consider your position. This is the result of a long career of bushranging. You have had many abettors — you both must have had many abettors in the district from which you come; and I have no doubt there are others, blind as they are, who have sympathised with your crimes generally. I shall not waste words in respect of such crimes imputed to you. The community is disgraced by the committal of such crimes. I would ask others — and this I recommend you to reflect upon before you die — what is the result, what the value of this course of wickedness, violence, and outrage which you have been pursuing for so long? In all the cases which have come before me it has been a question — Where is the money they have gained? What is the benefit of it? You have not now a shilling in the world after all your robberies. You have not, therefore profited by your career of crime. I have not heard of anyone being a gainer by such a lawless course except one (Gardiner) who is now serving thirty-two years’ penal servitude. A criminal career must end sooner or later. How many lives are taken, how much misery inflicted — and all this for no earthly good accruing to one of you. All is to end ignominiously! You, young men, might have pursued a very different career. You might have been the fathers of respectable families, happy — for happiness is to be found in the circle of home, made home, by honest industry. Instead of that you are to die a dishonoured death, in your young days, on the gallows. There is another consideration. You must have expected that, after you had taken to firearms and robbery the result must have been death. It is shocking to think of — infamous that you, should continue such a career. Those who pursue this course must not only reflect that there is a public shame hanging over them, but that they gain nothing by their robberies. You must have been constantly in terror — always in a state of alarm lest the police tracked you out. And the hard life you must lead. I am not willing to embitter your feelings; but what I am now saying may not be heard by this crowded Court, but I have a hope that other ears may hear me and be prevented from entering on a career similar to yours. I say men like you must be in constant fear of the police entering your dwellings when you have one, and hence you wander about like wild beasts, and undergo an amount of fatigue and privation more severe than that imposed on any labourer, and which, if directed to its proper channel, would bring you peace of mind, would more than furnish you with the comforts of this life. Take this into consideration, and you will admit that the balance must be against you. Tell me, where is the man you have ever heard of, who, by a course of bushranging, has gained a shilling’s worth of property he can call his own. If liberated tomorrow where are their gains? I will read you a list of bushrangers who have appeared during the last four years and a half, all of whom have been either shot dead, or hanged, or imprisoned for life — a list almost of demons. There was Peisley, he was executed. Davis, sentenced to death, but commuted to fifteen years. Gardiner, sentenced to thirty two years. Gilbert, shot dead. Ben Hall, shot dead. Bow and Fordyce, sentenced to death, commuted to imprisonment for life. Manns, executed. Vane, ten years. O’Mealley, shot dead. Burke, shot dead. Gordon, Ben Hall’s mate, sentenced to fifteen years. Dunleavy, the same. Dunn, executed. Lowry, shot dead. Foley, sentenced to fifteen years. Morgan, shot dead. Yourself, Thomas Clarke, and you John Clarke, about to be sentenced to be hanged. Fletcher, shot dead, Pat Connell, a mate and relation of yours Thomas Clarke, shot dead. Tom Connell, another relation, sentenced to death, but commuted to penal servitude for life; and Bill Scott, a mate of yours, believed to have been murdered. How many widows, how many orphans, how much property is lost by the career of these men? I have a list here which shows that since June, 1864, seven persons, mostly police, were killed, and sixteen policemen wounded — all within three years. Much as I have had to do with criminals, I do not know that there is anything in the world so abhorrent as the sympathy which has been expressed for this class of highway robbers — the scum of the earth, the lowest of the low — they have been held up as heroes worthy of example. But better days are coming. It was the convict element that was still working, that caused the sympathy I am alluding to. Yes, a brighter day is coming. You will not live to see it, for your days are numbered. A better and a healthier feeling is rising and pervading all classes. There will be no longer this vile sympathy which has hitherto so much disgraced us. It is shocking when I think of it. It pains me. It humiliates me when I reflect upon it. But two or three years ago one, a young man, the head and front of bushranging amongst us, was in the dock where you now stand, and was acquitted wrongfully — I say wrongfully acquitted. And there was rejoicing in this court, such an exhibition as would disgrace the vilest country on earth; but I am happy to say such days are gone. If there are any in this court now who participated in that unseemly exhibition, they live now to see their shame. I am grieved that two young men like you are to receive the last sentence of the law — that you are to pass away from a country which, by honest industry, you might have assisted to raise in the estimation of the world, but from which you pass after disgracing it.
His HONOR then, with much solemnity, pronounced the awful sentence of death upon the prisoners, who were then received by the gaolers to the condemned cells.
The prisoners remained apparently unconcerned at their fate. An elderly woman, said to be Mrs Clarke, stood near the dock, and her feelings can be better imagined than described to see her two sons conducted to their last habitation in this world.
The Court which had been orderly throughout the day, adjourned at 11:30 p.m.
2 thoughts on “Spotlight: Conviction of the Bushrangers, Thomas & John Clarke (1 June 1867)”
The following are comments on the newspaper article from Bell’s Life in Sydney and Sporting Chronicle Saturday 1 June 1867, page 5.
Unfortunately at the time of writing this article, court reporters did not exist. Comments on trials were made by journalists untrained in legal matters. They were therefore unable to comment on the legality of procedures followed in the trial, nor did they have access to any primary sources detailing events related to the particular charges.
The charge on this day was Wounding with intent to murder. The Chief Justice at this trial, Sir Alfred Stephen, did not explain to the jury that the prisoners could be convicted on a lesser charge of grievious bodily harm. He was required to do this. Stephen had the reputation of the hanging judge, and it was considered that his total displeasure at Frank Gardiner’s earlier lack of conviction for wounding with intent, a capital charge, was because he had explained the GBH alternative. He was not going give the Clarke boys this option. It must be noted that Walsh’s wound did not prevent him riding for five hours after his injury to get reinforcements for the capture. But the law is the law and wounding with intent was a hanging charge.
Whether it was the bullet from Thomas Clarke’s gun could never be proven beyond reasonable doubt. It was thought by the doctor that attended Walsh’s injury that the minimal damage to his leg could not be caused by a bullet discharged from Tommy’s gun, 20 yards away. Rather it was suggested that the bullet was a spent bullet from a group of police 50 yards away and Walsh was caught in the crossfire. Walsh claimed the bullet ricocheted from the stony ground into his leg. The policeman with him at the time, Constable Egan, disputed the ground was stony, saying it was soft mud. This was ignored by the court.
There is also dispute that Thomas, in the heat of the moment, realised the policeman shooting at him was Walsh, whom he knew. Thomas was running to the hut at the time and being shot at from two different groups of police.
It was never proved that John Clarke fired at the blacktracker, Sir Watkin Wynn. It was admitted that due to the smoke from the firing the identity Wynn’s assailant could not be proven.
The jury were told several times by the Prosecutor and by the Chief Justice that their decision had nothing to do with the sentence that would be given. This was stated to allay any feelings to jury might have that their decision of guilt would mean they had sent them to the hangman. But this wasnot the reality. A decision of guilt would mean the hangman.
The journalist then proceeds to rationalise the events and comments in the trial, justifying the prosecution without question and ignoring points made by the defence, William Bede Dalley, one of the most learned men in the colony at the time. His statue stands in Hyde Park today.
Probably the most ridiculous statement made by the untrained journalist was It was fortunate for the prisoners that they were in a country where the laws allowed them a fair and open trial.
A fair and open trial was most definitely not the case.
Stephen’s list of crimes – he gave a non-direction to the jury; re-worked the evidence of Walsh; did not intervene to question statements that conflicted with those of constables Wright and Egan and Doctor Pattison; made a ruling on a law that had not been passed by parliament; sat on the Appeal Board; publicly accused the Clarke boys of crimes for which they had neither been charged or convicted, including murder and armed robbery.
The Prosecutor, Robert Issacs also has a list of inappropriate comments.
The end result, the hanging of the Clarke boys, was judicial murder.
For a full account of the Clarke Gang, please refer to my book, sold on this site by Aidan.
Always great to get your commentary on these archival documents, Judy. It comes across in this article in particular (one of the reasons I made a point of transcribing it for the site) that Stephen was not acting as an impartial judge in this matter, evidenced by his ranting. It is not hard to see how the press of the time worked hand-in-hand with the authorities to push a narrative about the Clarkes.