Austral-Asiatic Review, Tasmanian and Australian Advertiser (Hobart Town, Tas. : 1837 – 1844), Friday 15 September 1843, page 4
TRIAL OF MARTIN CASH.
This morning the court, with the space in front was crowded, if possible, more densely than it was yesterday; a few minutes before 10 o’clock, the jury was marshalled from “The Macquarie” by three javelin men, and escorted by some policemen, who had some difficulty in clearing an entrance for them into the court-house; precisely at 10 o’clock, Mr. Justice Montagu resumed his seat on the bench, and the court was opened. The prisoner being placed at the bar, Mr. Justice Montagu said, that in looking over his notes of the evidence, he had resolved upon the manner in which be should put the case to the jury; the learned counsel for the prisoner had taken an objection to the authority of Winstanley as constable, and to the “hue and cry,” which was not constituted in this colony as it formerly was in England; he had also stated, that there was no evidence to show that Winstanley knew that the prisoner was Martin Cash.
Mr. Macdowell replied, that it was his intention to put it to the jury, that Cash ought to have had some notice that Winstanley was a person in authority.
His Honor said, that would have been impossible: the matter occurring in the night time, and in a manner so instantaneous, the deceased could not have given any notice of his authority. His Honor then intimated, that he should put the case to the jury, on the following questions, which he should wish to have answered seriatim, after they had delivered their verdict: his Honor also requested that the jurors would write down the questions as he propounded them :—
1st If guilty, whether they thought that Winstanley, at the time he ran out into the street, had reasonable cause to suspect that the prisoner had committed a felony or other offence?
2nd. Whether they thought that, at that time, Winstanley had reasonable cause to believe or suspect, that the person he attempted to secure was an absconded offender, or a convicted offender illegally at large?
3rd. Did they think, that constables Thomas and Agar had reasonable ground to suspect or believe, that the prisoner at the bar was an absconded offender, illegally at large?
4th. Did they think the prisoner had committed a felony, by discharging a pistol at the constables, in Murray-street?
Upon these questions, his Honor wished a decided answer, should they return a verdict of Guilty against the prisoner; and there was another question, which he would also put to them, namely,—
5th. Whether at the time Martin Cash fired at Winstanley, they thought he intended to murder him, or do him some grievous bodily harm?
Having put these questions, his Honor remarked that he did not think there was anything in the conduct of Winstanley to reduce the case of the prisoner to manslaughter, and nothing to justify the use of so deadly a weapon as a pistol by the prisoner. His Honor also declared, that every man who joined in a hue and cry after a person suspected of felony, or other offence, was justified in pursuing him. Whether the offence was a felony or a misdemeanor, it was the duty of every one to assist in the pursuit; and it mattered not whether an offence had been actually committed or not, for it would be impossible for persons at a distance to ascertain in what a hue and cry originated. On the other hand, those who raised an unjust hue and cry were liable to be indicted for creating a breach of the peace, or a public disturbance.
The Attorney-General, while he perfectly concurred with the learned Judge, would request that his Honor would add to the other questions, the following:— Whether it was necessary for the prisoner to fire in defence of his life? whether (before he did so) he retreated as far as he could? and, in short, whether anything was done by the deceased, by using unnecessary violence, or otherwise, to justify the prisoner in using fire-arms? The learned gentleman contended that Winstanley had used no violence, merely holding out his arms; and that in a sudden affray of chance medley if the party assailed kills another, without using some degree of retreating, or, as it was called, “without going to the wall,” it would be murder; and he never knew a case of that kind mitigated to manslaughter. The Attorney-General here referred to certain authorities contained in East’s Pleas of the Crown, sub voce “homicide se defend in chance medley,” where the law was laid down by one of the first of lawyers, and had never been controverted. The learned counsel also quoted Hawkins’s Pleas of the Crown, and other authorities, in support of his opinion.
Mr. Macdowell now proceeded to address the jury in behalf of the prisoner; and the points of law being decided in reference to the evidence, he contended that, although the crime of murder consisted “in taking away the life of one of the Queen’s subjects,” yet it was necessary that it should be so taken away deliberately, or in the language of the law, with malice aforethought. The jury, who had attended to the important trial throughout with the most deep and earnest anxiety, would fail, he humbly apprehended, to discover, in the conduct of the prisoner, any of that malice aforethought which was required by law to constitute the crime of murder. There was something in the term “murder,” most revolting and shocking to reflect upon — it was a most foul and unnatural proceeding; but how stood the present case? There was a man, to use the strong language of the Attorney-General, a PROSCRIBED MAN! whose only offence on the present occasion was an effort to effect his emancipation, so to speak, from that society by which he was proscribed, and to free himself from a crowd of persons who were in hot pursuit of him! There was nothing to show that the prisoner and the unfortunate deceased had ever seen each other before, and it did seem to him (the learned gentleman) as different a case from malice aforethought as any two cases could possibly be. In the one case, they had the assassin selecting his prey, and awaiting the moment to compass his vile purpose; in the other, they had a man who had committed no offence in the town that any one knew of, hunted and pursued through the streets for his very life, till he suddenly and accidentally came in contact with the deceased; there was nothing to show that, as respected the firing of the pistols in Murray-street, Thomas did not fire his pistol first; Thomas, indeed, stated, that the prisoner fired first; but Agar, who was more calm and collected than Thomas possibly could have been, declares that he could not say which fired first, the report was like one and the same report. The learned counsel again submitted, that between this case and that of deliberate murder,- there was a vast distinction; and after commenting upon the alleged pointing of the pistols by the prisoner while being pursued, and the improbability, or indeed rather the impossibility, of Mr. Ebenezer Smith seeing the size of a pistol by its flash, while standing in advance of the person firing, contended that the attempt to apprehend the prisoner was not justifiable, unless he was made acquainted with Winstanley’s authority; he referred also again to the hue and cry not being in force in the colony; the learned gentleman put it to the jury, of course under His Honor’s direction, that the prisoner could not be held responsible for Winstanley’s death, unless he had some notice of the authority by which he acted. (In support of this opinion, Mr. Macdowell quoted Forsters Crown Law, article “Homicide.”).
His Honor observed, that the case to which the learned counsel referred, was very different. That case had reference to frays or riots, and by common law, if a constable during such fray or riot held up his staff, or otherwise declared his authority, that was an indication for the rioters to keep the peace; here there was no riot or tumult.
Mr. Macdowell. — The deceased interfered to stop a man in the street, for which it was very certain he ought to have had some authority.
His Honor. — The law was this: — if a man apprehended another without just cause, he was liable to indictment; so also were the originators of an unjust hue and cry.
After some further observations relative to the evidence respecting the pistols, Mr. Macdowell said, that he had undertaken the defence of the prisoner with great unwillingness, on account of his indisposition; but, learning from the prisoner, that if he, Mr. Macdowell, would not defend him, he would not have anyone else, be deemed it his duty to do so — and he had so done to the best of his ability and as well as physical capacity would allow; he trusted that the jury would give such a verdict as would be satisfactory alike to the crown, to the public, and to the prisoner’s counsel.
His Honor addressed the Jury at some length and with much ability, clearly pointing out the law of the case as was laid down on the several points, during the progress of the trial. All that the jury had to do was to find whether the deceased came to his death by the gun-shot wound, and whether that wound was inflicted by the prisoner. If they found the prisoner Guilty, there was malignity about the case; every argument had been used, and every question raised by the prisoner’s counsel upon the points of law, with great ingenuity and ability; but in his Honor’s mind the case was perfectly simple. His Honor then referred again to the questions, which he intended to put seriatim to the jury, and read over the whole of the evidence, commenting upon it as he proceeded. He deprecated the negligence — as it would seem — of the police authorities, in not taking Winstanley’s statement of the transaction, and gave great praise to the conduct of Mr. Cunliffe, “to whose coolness, courage, and promptitude, the public were indebted for the capture of the prisoner.” Those persons who refused to aid in the pursuit when called upon by Cunliffe, his Honor imputed great blame, as not only a cowardly act but a “gross dereliction of duty as good citizens and subjects,” and he regretted that their names were not known to the police, that they might be prosecuted. He directed them to discard all previous impressions as far as they could — from their minds, and to consider their verdict upon the evidences upon which alone they were to decide; and concluded by saying, that in his opinion, the offence was murder — deliberate murder — a very bad case indeed.
The Jury retired, and after an absence of twenty minutes, returned a verdict of Guilty generally; and an answer in the affirmative to the questions of the learned Judge, with the exception of the second, which they answered in the negative — His Honor, with reference to the fourth question, desired them to say, whether they were of opinion the prisoner shot at Thomas or Agar?
The Foreman replied, that they were of opinion he shot at constable Thomas.
The learned Judge perfectly concurred in the finding of the Jury; he addressed the prisoner in a brief but a very feeling manner, and while he held out to him no hope of mercy in this world, he should, nevertheless, remand him, in order again to look over the evidence, and to re-consider the points of law which had been raised by his counsel, who had kindly undertaken his defence when suffering under severe indisposition; he conjured him to entertain no hope that his life would be spared, but to believe that the extreme sentence of the law would be speedily carried into effect, for his Honor had no doubt that everything had been done that could have been done in his unfortunate case.
The prisoner then said, I have always been against taking the life of any man; I would do anything rather than deliberately do so. I never acted in a cowardly manner, nor in any other way than became a man. I have saved lives in the bush, and prevented many murders; if I had been a man to do murder, there would have been many murders committed in the bush. When we were in the bush we acted like men to every one; when we went to a house we took what we wanted, but we did no violence to man or woman; I could not suffer this. I hope you will not consider I am a man that would do a cowardly and deliberate murder; if I was driven into close quarters with a man I would fire at him and try all I could to get away; but I would not kill him, I would cripple him.
His Honor. — I do not doubt but you have throughout endeavoured to avoid shedding blood or using violence; from all that we have read and heard of you this is true; but still, I cannot hold out any hope to you.
The Prisoner. — I beg your Honor’s pardon, I did not mean that; I did not beg for my life — I do not value it one straw.