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Decisions of the Nineteenth Century Tasmanian Superior Courts

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

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[murder - Perth - approver, evidence of - evidence, writing of the deceased - capital punishment, in chains - capital punishment, exhibition of the body at the site of the crime]

R. v. McKay and Lamb

Supreme Court of Van Diemen's Land

Pedder C.J., 28 April 1837

Source: Hobart Town Courier, 5 May 1837[1]

Before His Honor the Chief Justice and a Military Jury

John McKay and John Lamb, were indicted for the wilful murder of Mr. Joseph Edward Wilson, near Perth, on the lst April last; by a second count. John Lamb was indicted as an accessary before the fact, in aiding and abetting the said John McKay; - upon which count, after some conversation between His Honor and the Solicitor, General, it was arranged that he should be tried abandoning that, which charged him as being a principal.

The prisoners on being arraigned pleaded Not Guilty in a very low voice.

The Solicitor General applied, that Ann Ward, - an accomplice, who had been committed on the Magistrate’s warrant, but against whom no bill had been found, - should be admitted as evidence for the crown; the application was granted, and the Learned Counsel proceeded to state the case to the jury. This he did briefly and plainly; he told them that he should lay before them some facts, which were beyond all doubt or controversy, there were others, however, dependent upon the degree of credit that the jury might attach to the testimony of the witness, one of whom, being an admitted evidence for the crown, and having been an accomplice in this horrid tragedy, must be regarded in a very suspicious light; and if her evidence was not corroborated in every material point, no conviction could accrue upon her testimony; he then stated the leading points of the case, the whole of which will appear from the following evidence, and in conclusion, stated that the Lieutenant Governor was extremely anxious to have this case tried on the other side of the island; that, if innocent, the prisoners might not be kept in confinement longer than was necessary; and if guilty, that an example might be made in the vicinity of the atrocious transactions; but it was decided that two judges could not sit in the same court in different part of the colony at the same time, and it was therefore determined to bring the men to trial at the present Sessions; he called upon the jury to divest themselves of all prejudice, arising from reports of so dreadful an occurrence, and to judge of the case dispassionately from the evidence before.

Evan Henry Thomas examined by the Solicitor General. Has known the deceased, Joseph Edward Wilson more than 14 years. The letter now produced is in his hand-writing; it is addressed to his uncle Mr. Reibey.

Judge. - I cannot see that this is evidence in this case. (The object of this letter was to prove the hand-writing of the deceased, who had signed a statement before his death, detailing the circumstances of the murder; but as this deposition was not made on oath, it could not be received in evidence; it went chiefly to prove the description of the murderer, and to describe the mode in which he attacked Mr. Wilson - Reporter.

Examination resumed. - Saw Mr. Wilson last alive, on Saturday evening at his (witnesses) cottage at Launceston; saw him dead at Mr. Heaney’s public house near Perth, the following day; the body he then saw was that of Joseph Edward Wilson; it was on the 2nd April; saw Dr. Salmon there on Monday, the day of the inquest, and Mr. Horne the magistrate; witness did not see the body on Monday; when he saw the body on Sunday, there were several persons present, but they were strangers; deceased was witnesses stepson, - the son of Mrs. Thomas.

By the Court. - Saw the deceased last about ½ past 6 on Saturday evening, lst April; he left witnesses house about that time to go to his uncle’s, Mr. Reibey, near the Wharf in William-street, Launceston; the place, where witness saw him on Sunday is near 10 miles from Launceston; knew it was deceased intention to leave Launceston on Saturday evening, the purport of his visit to Hobart Town, being to purchase the Government Cutter, Charlotte; witness was not present at his baptism; always knew him to go by the name of Joseph Edward; when witness saw the body on Sunday the face was dreadfully disfigured, with two fractures above the orbit; but the features were clearly distinguishable; could distinguish the body by its features alone; without seeing any other part of it; in fact witness swears solemnly that he recognized the body by the features alone.

Re-examined by the Solicitor General. - Mrs. Thomas was married to Mr. Wallis previous to her marriage with witness; Her maiden name was Sarah Divine, and her first husband’s name was Wilson, the father of the deceased.

Rev. R Kingswood. - Baptized Joseph Edward Wilson; the book, now produced, contains a list of marriages and baptisms celebrated by witness, when he was holding the office of Chaplain of Van Diemen’s Land; knew Sarah Divine personally; witness married her; this book contains a registry of marriages performed by witness; knew Mrs. Wilson; this entry is in witnesses hand-writing; looking at this entry, witness can recollect the marriage of Mr. Wilson and Sarah Divine; they were married to each other; in looking at another memorandum, can remember baptizing their son Joseph Edward, - the register is in witnesses own hand-writing; looking at this can swear that he baptized the son of Sarah Wilson, late Sarah Divine, and William Wilson by the name of Joseph Edward.

Court. - By looking at the preceding pages witness can tell that his baptism was performed in the year 1813, and on the 18th of October; the dates are in witnesses hand-writing; and this was the time he baptized Joseph Edward Wilson.

John Richard Salmon. - I am district surgeon at Perth; I remember the night of the lst of April last, when I was called in to attend a person, whom I since understood to be Mr. Joseph Edward Wilson, at Mr. Heaney’s public house at Perth; on my arrival I found him lying on a bed; and on examination of the body I discovered a gun shot wound, penetrating the right side, just below the edge of the ribs, passing directly through the body to the skin on the opposite side, where the ball could be distinctly felt under the skin; on a farther examination of the body I found several deep incisions about the head and face, eight in number, - two of these wounds, one above the orbit, and another on the head, were fractures of the skull. There was profuse haemorrhage from the stomach, and also by evacuation from the bowels; Mr. J. E. Wilson was alive at this time; there was constant vomiting of blood up to the time of his death, I first saw him exactly at 11 o’clock at night, and remained with him till between 3 and 4 in the morning, I saw the body again about ten o’clock that morning, about 6 hours after death I then quitted Mr. Wilson being quite dead. - leaving Constable Hemmings in the room. The deceased gave his name to me Joseph Wilson. The wounds in the head were such as might have been caused by the sharp edge of the butt, or the lock of a gun; incised wounds, similar to those which I observed on the deceased might have been so caused. I extracted the piece of lead now produced from the side of the deceased, just above the edge of the ribs on the left side at 10 o’clock on Sunday morning. The gun shot wound was the immediate cause of death; I am quite certain of this; the haemorrhage was very considerable, and was caused by the gun shot wound; and of this wound I state, without doubt or hesitation, Mr. Wilson died.

By the Court. - I do not think the fracture of the skull had any operation in the cause of his death; this opinion I have always entertained. I do not recollect that Mr. Thomas ever saw the deceased in my presence; the body was that of a young man about three or four and twenty, the clothes were partly off - the shirt was on.

Re-examined by Solicitor General. - The piece of lead I now hold in my hand is the same I extracted from the deceased’s side; I have frequently examined it; it was never cast in a bullet-mould; its form has never been changed since it has been in my possession.

By the Court. - I do not think it came in contact with any bones; it passed through the soft parts and could not have changed its form.

By a Juror. - I did not open the body of the deceased, I merely extracted the piece of lead.

Constable John Hemmings. - Recollects Saturday night, the lst April last; was on the road between Perth and Launceston, between 8 and 9 that night; it might have been later. About 9 o’clock, saw some persons coming along the road - saw a person being led along by two men, one was Britton, servant to Mr. Heaney, the other was a man named Lee; this was about half a mile from Perth. Witness took hold of the person’s arm, who was being led, but finding he was so well conducted by Britton and Lee, walked by their side to Heaney’s public house at Perth; got to Heaney’s about 20 minutes past 9 - the person was taken into tap-room and placed upon a table, when Mr. Heaney assisted witness in taking off the person’s clothes. On taking these off, witness saw a wound in the right side, which appeared as if it was done by a shot; there were several wounds on the face and head; witness saw Dr. Salmon there, and saw him examine the wounds; Dr. Salmon might have been there 2 hours or more before he left; Mr. Heaney, and witness remained with the person; witness never left the room after Dr. Salmon went away, till the person died; believed about 3 or 4 hours after Dr. Salmon left; it was between 3 and 4 o’clock that he died. Witness knows Mr. Thomas; saw him at Perth on the Sunday at Mr. Heaney’s public house, in the parlour; does not recollect seeing him at all in the room where the deceased was; saw him only in the parlour. Witness left Perth on Sunday morning, and went in direction towards Launceston; proceeded about three quarters of a mile, when he observed in the centre of the road, several foot marks, as if there had been great scuffling, also a quantity of blood; in the same place witness found the lock belonging to a fowling piece, and the ram-road, now produced, they have not been in witness’s custody ever since; he delivered them over to Mr. Hamilton, division constable at Perth - gave them to Mr. Hamilton on Sunday morning; does not know where they have been since that time; witness is certain the lock is the same as he found on Sunday morning; knew it by a part of the seer being broken off - (witness here pointed out to the court and jury the exact appearance by which he identified the lock), he observed this when he found it; observed the maker’s name. “H. Nock;” the ram-rod is the same as witness found; knows it by four small marks which he scratched on the end, and also by the worms; he observed several foot marks in the centre of the road. On the left hand side, looking towards Launceston, and opposite the place where the blood was, was a cluster of wattles; behind these wattles witness perceived several foot marks, as if some person had been standing there for a considerable time; this was close to where the marks of the scuffling were; could not distinguish different marks; the wattles were about 3 or 4 yards from the place where the scuffling. Had some conversation with the deceased before he died; recollects mentioning this conversation to Mr. Thomas at Perth, at Mr. Heaney’s house - he believes in the parlour, Does not remember any person going up to the deceased and kissing him; does not recollect Mr. Thomas doing so; if this had occurred thinks he should have recollected it.

By the Court. - Constables are not instructed to deliver over such articles as these (the lock and the ram-rod) to district constables.

(His Honor here censured the practice of giving articles of this kind out of the witness’s own possession, observing that if a man was fit to be a constable, he was certainly capable of being entrusted with the care of such things as he might secure for the purposes of justice; he hoped, in future, that no constable would part with any thing of this description unless by the order of a magistrate)

Examination continued by the Court. - The body was on a bed on the floor; in the tap-room when Mr. Thomas first saw it; it had been removed there. The marks witness saw in the centre of the road were the foot marks of men; he saw foot marks of a horse in the centre of the road, also alongside of the men’s marks; did not trace the horse’s foot marks; he found the lock and the ram-rod about six in the morning; saw also some small buttons which appeared to have been torn off a white waistcoat; they were mould buttons covered with white cloth; does not know whether it was cloth, or linen, or woollen; there were three or four buttons; believes they were torn off the waistcoat the deceased had on - they resembled that waistcoat; knows the waistcoat because he searched it, and observed that some buttons had been taken off - believes there were two or three buttons missing; does not recollect whether the waistcoat was torn; gave the buttons to Mr. Hamilton; there was nothing adhering to them; was examined at the Police office about the lock and ram-rod, but not about the buttons.

(Here His Honor told the witness, that although he was not examined about any particular point, it was his duty to divulge all he knew about any case, in which his evidence was concerned.)

Examination continued. - Witness was stationed at Perth at this time; did not know Lamb at this time; has seen McKay two or three times at Norfolk plains; did not know McKay’s acknowledged residence; does not produce a hat; the deceased had a white chip hat, indented in several places, and the rim turned up; it was tied up with the clothes of the deceased; witness did not take charge of it; it was stained with blood, when witness saw it on deceased’s head; saw blood running from deceased’s face, as he walked along the road, but from no other part; I found the lock and ram-rod about ¼ mile beyond the place where he met Mr. Wilson and the two men; it was ¼ mile nearer Launceston.

James Bilton. - Is Mr. Heaney’s assigned servant;[2]recollects the night of the lst April last; remembers leaving Carolan’s at the Cocked hat hill that evening to return to Perth; Carolan’s is about 5 miles from Perth; witness was driving a horse and cart; about ¾ of a mile from Carolan’s, on the road to Perth, a man on horseback passed by, and inquired the road to Perth; the man on horseback rode on towards Perth; when witness came within ¾ mile of Perth, he saw something lying on the road; he immediately alighted from his cart to see what it was; he saw it was some person, but did not then know who; witness asked who he was? He said his name was Wilson; by his clothes, witness believes he was the same person he saw on the road, and who inquired the road to Perth; he was lying on the broad of his back, his head being towards Launceston, and the feet towards Perth; his face appeared to be covered with blood and dust; witness was met on the road by Constable Hemmings and several other persons, about half a mile from the place where he first saw Mr. Wilson; he was taken to Mr. Heaney’s at Perth; witness saw Dr. Salmon there, that night attending Mr. Wilson; witness did not remain all night; saw Mr. Wilson again the next morning at 7 o’clock; he was then dead; this was on Sunday morning. Knows Mr. Thomas; saw him at Heaney’s on Sunday; the deceased was in the house on a table in the tap-room; saw him in the parlour, and in several other places during the day, but not in the tap-room.

By the Court. - It was starlight when witness saw Mr. Wilson on the road, and about 3 hours after sunset; did not observe any thing on the ground where Mr. Wilson was found; there were lights at Heaney’s, when witness arrived there with the deceased; observed his face, and saw several wounds, with blood and dust, Witness did not know where Lamb lived; knew nothing either of Lamb or McKay.

By a Juror - The deceased had on a white hat, a little stained with blood, the man that passed witness on horse back had on a straw hat; when witness found Mr. Wilson, this hat was lying underneath his head; the hat was bloody, crushed and dirty, I should know it again.

Charles Wise. - Lives at Norfolk Plains, knows the prisoner Lamb; he lived at Norfolk Plains in March last, about a mile and a half or two miles from Perth; the lock then produced belonged to a piece witness sold Lamb about 2 or 3 months ago from this time; that piece had been in witnesses possession better than 2 years; witness sold it him at his father’s house at Norfolk Plains, for six bushels of wheat; received the wheat between a month or 5 weeks ago; he received it at Lamb’s house, McKay, and Anna Ward, whose name witness did not then know, being present; another woman came to the door while witness was getting the wheat; should know that other woman again if he saw her. (Here Sarah Taylor was brought forward, and identified by the witness.) That was the Lock belonging to the gun witness sold Lamb for the 6 bushels of wheat; knows it by the branches under the pan; there was nothing peculiar about these, but witness had taken great notice of them; cannot say, whether “Lock” or ”Nock” was the name on the gun; the ram-rod now produced is not the ram-rod witness sold with the piece, but it looks very much like the worm; because witness broke half the turn, and filled it up again; sees this plainly there (on the ram-rod) the lock was not in the habit of losing the priming, when witness sold it.

By the Court. - Had often used the gun; had cleaned it many time, - the lock and all parts of it; does not know what wood the stock is made of.

By a Juror. - Is no judge of woods; is a native of Sydney. (The witness here pointed out to the jury the branches under the pan - they were merely some ornamental marks engraved upon the lock.)

By the Court. - Never possessed a gun before the one he sold Lamb - not has he had one since; it was a common fowling piece, single barrelled; is not used to examine fowling pieces; knows Perth well, and the road from thence to Launceston; the nearest way to Lamb’s house, from that part of the road about ¾ mile from Perth would be about 1½ mile; has been across the bush between Lamb’s house and the Perth road, formerly, when after cattle, but, not lately, as it is all fenced in.

Sarah Taylor. - Was stopping at Norfolk Plains 4 weeks, last Saturday, at a Constable’s house; does not know his name; was at Norfolk Plains the Saturday before last, and the Saturday before that at Mr. Britton Jones’s; recollects being examined before Mr. Horne, the Police Magistrate, at Norfolk Plains; knows the prisoners at the bar; they lived in a little house, near Mr. Saltmarsh’s, where the new bridge is going to be built at Norfolk Plains, about 10 days before witness was examined before Mr. Horne; both prisoners lived at that house; witness went there on the Thursday evening, and came away on the Monday-week following; had been a week away before she was examined at the Police office, at Norfolk Plains. Recollects the Saturday before she left Lamb’s house; had tea just before dark; witness Anna Ward and McKay were together, Lamb had been out to work, and was not within at tea time; tea was over before Lamb came in. After tea, the two prisoners went out; McKay took the gun, and went out a little bit before Lamb; the gun was “old Lambs”; knows it was Lamb’s gun, because witness was present when he (Lamb) gave the wheat for it. McKay went down towards a fence, a short way from the house, and had got near it, when Lamb overtook him; McKay had the gun; as soon as Lamb overtook McKay, they both went over the fence, and down by the side of the fence, to the right; this road led, either to the Punt at Perth, or to Perth itself; witness did not see them any more, at that time, after they got over the fence; could not tell what o’clock it was; it was neither dark nor light; witness could not see to sew; the prisoners did not come home until it was quite late; could not tell how many hours they were absent; thinks it was between 12 and 1, when they came home; McKay came in first witness did not see any gun with him; he could have brought in a gun, and witness not see it, as her back was against the door; observed that he looked rather frightened when he came in; he did not speak; Lamb did not come, till a good bit after; after McKay had been home a good bit, he asked if Lamb had not been home for he could not tell where the “old man” was; when Lamb came home, McKay said nothing to him; did not hear Lamb say any thing to McKay; but Lamb said he had heard 2 men and a woman, talking as he was in the bush. The prisoners, after a little while, went out to sit among some straw; Anna Ward was sitting by witnesses side at the time, but went out to the prisoners a little while after. Anna was gone about ½ an hour, before she came back, and the prisoners followed her; they all went to bed a short time after; but they had some tea first. The next morning being Sunday, witness was at Lamb’s all day, and also that night; left on Monday morning about 9 o’clock on her way to Launceston; Lamb was at home all day on Sunday; McKay went to Norfolk Plains to muster, and Anna Ward went to see her mother; as she told witness; Anna Ward agreed to wait for McKay by a tree and after muster, to go with him to her mother’s; McKay left Lamb’s 2 hours before Anna Ward; it was nearly 8 in the evening, before witness next saw McKay and Anna Ward; they returned together to Lamb’s house; Lamb and witness were both at home; heard nothing that evening of a murder at Perth, witness can undertake to say this; the first time witness heard of the murder was as she was going into town on Monday morning; on Saturday night witness heard no conversation about a gun; saw at Lamb’s a piece of lead in a spoon on the fire; did not see any bullet mould; did not hear Anna Ward ask McKay any question about a gun; heard Lamb say, he had been in the bushes, and that he heard 2 men and a woman pass by, while he was there; from Lamb’s house to the Perth road is a long distance, to a person ignorant of the nearest way through the bush; there is no road to Lamb’s house, but what people make themselves; Lamb said he thought it was witness speaking in the bushes, and that she was going to Launceston, the voice of the woman resembling that of witness; as he was lying in the bushes; he said, he saw a woman and two men pass by; and that, from the voice of the woman, he thought it was witness.

By the Court. - Witness had been talking every day of going into town, (Launceston.) Lamb said he saw those people; tea was had before the prisoners went out; it was then neither light nor dark; the fence the prisoners got over was farther from Lamb’s hut, than the length of that room (the Court House) and half as long again; witness was inside the house, by the window, when she saw the prisoners get over the fence; there were two rooms in the house; the gun when not in use, stood up in the corner of the front room; this was the room in which we had tea, and where the prisoner’s came to when they returned; did not see the gun after Saturday night, nor any part of it, nor anything of the kind that night, in that house; it was just before dark when the prisoners went out; witness remained at Launceston till she was sent for in Norfolk Plains by the magistrate; did not go of her own accord, was shown no paper by the person who came for her; had never mentioned to any body, what had happened on Saturday night at Lamb’s house, swears positively that she had not heard of any reward being offered; knows it now; is a married woman; but does not know where her husband is; is a prisoner and holds a ticket of leave. Anna Ward is a friend of witness; had only just left service at Launceston, when she met Anna Ward; met at Norfolk Plains, and went with her to Lamb’s house.

Cross-examined by McKay. - Witness never saw any bullets or slugs with McKay only the lead in the spoon; after they crossed the fence, does not know which had the gun, they went to the right after they got over the post and rail fence; prisoner McKay did look frightened when he came back; Anna Ward and McKay did not enter the room together, till prisoner came back from the straw; Anna Ward and prisoner seemed as friendly that night as at any other time; saw no signs of blood on prisoners clothing.

Cross-examined by Lamb. - The fence the prisoners got over was a post and rail fence, and they turned towards the brush fence; cannot say in what direction the brush fence leads, whether to Perth or the Punt; witness went along a little bit of it, at the corner, on her way to Perth.

James Britton, re-called. - Left Perth about 7 o’clock in the evening; he went along the road towards the Cocked-hat hill, about 5 miles from Perth; witness was not alone, he rode in a cart with another man; there was nobody else; witness met Mrs. Heaney and the man who drove her. Miss Heaney came to Mr. Carolan’s at the Crocked-hat hill; there were 2 men with Miss Heaney, John Lee and Mr. Radley’s son; Miss Heaney came to Carolan’s about a quarter of an hour after witness arrived; the 2 men came with her.

By the court. - Witness travelled from Perth to the Cocked-hat hill at the rate of about 3 miles an hour; believes Miss Heaney and the 2 men walked; they were waiting when witness saw them; it was after dark when witness left Perth; it was starlight; witness stopped at the Cocked-hat hill about half an hour; went back at the same pace as he came; Miss Heaney in between 14 and 15 years of age; knows Sarah Taylor’s voice; Miss Heaney’s voice is not like her’s; witness could tell Miss Heaney’s voice from Sarah Taylor’s in the dark; there is a great difference between their height; Mrs. Taylor is a great deal taller than Miss Heaney.

James Hortle. - Is Chief District Constable at Norfolk plains; knows the prisoners at the bar; has known Lamb about 8 years, and McKay about 6 months. Lamb has been residing lately in a hut on the east side of Norfolk plains about 500 yards from the road side, that is the old road leading from Fenton’s Ford at Launceston to Norfolk plains; Lamb’s hut is about 2½ miles, the nearest way to a spot on the Perth road about ¾ quarters of a mile from Perth; there are no bushes between the old road and Lamb’s house; but after you pass through the next farm, there is a brush fence; witness is well acquainted with the road ¾ mile from Perth and its vicinity; there are bushes of young wattles on both sides, in places, all the way to Launceston till you come to the Sand-hill; witness searched Lamb’s house on Tuesday the 4th April; Lamb came in about 10 minutes after witness had been there; witness had some conversation with him, and told him he had come to search his house; he said - very well - he might search if he chose: - but he (Lamb) seemed very much alarmed; witness proceeded to search, and found a shotbelt, a powder flask and a cannister, with some powder in it, and a piece of lead. Witness asked - “here is the gun?" Prisoner said, he was out shooting pigeons on Friday evening; he fired at a pigeon, and saw it drop; he laid down his gun and ran about 20 or 30 yards after the pigeon; when he returned he could not find his gun; witness told him if he could not give a better account of his gun, he should take him into custody; he declared solemnly, several times, that if that was his last words it was the truth; witness asked prisoner where he slept on Saturday night? He said he slept in his own room, and went to bed about 8 o’clock; he said he never went out after he went to bed, till the morning; witness questioned him particularly on this point. The other prisoner McKay was brought to witness about 7 o’clock on Wednesday evening at the Police-office, Norfolk plains, witness asked him where he slept on Friday night, he said at Lamb’s, and on Saturday night also, by himself before the fire in the outer room; witness asked if he knew any thing about Lamb’s gun? He said - no; asked him if he had ever fired it? He said - no, he should be sorry to do so, as it was an old thing and not trustworthy; witness recollects Sunday 2nd April; was at Perth in the evening; saw the body of a person lying dead at Heaney’s public house; knew the person, when alive; he was called “Joe Wilson;” he went to school close to witness’s house; is sure that he saw Mr. Thomas at Heaney’s that evening; Mr. Wilson was about 23 years of age; always understood he was Mrs. Thomas’s son; used to see him almost every day when alive.

By the Court. - Mr. Wilson was much wounded, when witness saw him; there were wounds on the head and face, and a gun shot wound in the right side; did not tell Lamb at first, why he wanted to search his house; known Lamb’s house and the ground near it; did not hear Sarah Taylor give her evidence; can only see one brush fence, through the window, it joins a post and rail one, at rights angles; if a person was standing at the window and saw a man cross the post and rail fence, and turn to the right, which leads to the Perth and Norfolk plains road.

(His Honor here examined Mr. Hortle very minutely as to the position of the fence, and as to the direction of the paths leading by them from Lamb’s house, with a view to ascertain the direction the prisoners took, when seen to cross the fence by Sarah Taylor; and as resuming the examination Mr. Hortle said the lead he found in Lamb’s house was such as is found in tea chests, it was squeezed up, into a bump, and there was about 1½ ozs of it.)

Cross-examined by McKay. - When brought to witness he (witness) did not observe any thing about the prisoner, which led to a suspicion of murder, excepting his looks.

Cross-examined by Lamb. - The only cause of suspicion witness entertained, was the existence of a shotbelt, powder flask, and cannister, and no gun.

Anna Ward. - (On the appearance of this witness in the box. His Honor cautioned her as to her evidence; he impressed upon her the situation in which she was placed, that it was only on condition of her speaking the whole truth both for and against the prisoners, that he should be induced to intercede for her pardon.) - I know the prisoners at the bar; on the lst of April, I was living at the prisoner Lamb’s house at Norfolk plains; I saw both the prisoners on that evening, at that house; they both left the house about 7 o’clock; they did not leave the house together McKay went first, and Lamb followed in about 10 minutes. McKay took with him a piece which belonged to Lamb; Lamb pursued McKay and overtook him after he crossed the fence; if this box were Lamb’s house, the fence would be where the Solicitor General stands, that is to the right; I was standing at the window; and looking through the window, the fence is right in a line towards the back of the house; I know that part of the country well; I did not see what direction the prisoners took, after Lamb joined McKay, he was going towards the new Launceston road, when Lamb joined him; towards the road between Perth and Launceston; I have travelled that road with McKay and crossed the same fence.

By the Court. - The fence I am speaking of is a post and rail fence.

Examination continued. - We proceeded through the bush towards the Launceston new road, and came out between Mr. Pitt’s and Mr Kelly’s public house; it was on the Tuesday after the murder that I travelled that road with McKay. The prisoners returned about 12 o’clock;’ McKay came first; upon his coming in, I asked him, where he had been? He said – “what is that to you?” I laughed at him and said - “a short answer is best for a fool.” He sat down to smoke his pipe; he said nothing then about the gun; I asked him what had become of it? He said - “Jack has got it,” meaning Lamb; we had no further conversation till Lamb came home, which was about ½ an hour after McKay; I then went into the bed room, and called McKay to me, and asked him, what was the matter? He said - “not much - oh!- plenty!” I again asked him, and desired him to tell me. He said - “I will tell you.” He had been up, he said, towards the Launceston new road, between Pitt’s and Perth, where he saw a man coming along the road on horseback; he said he went up and bade him to stand, when the man jumped off his horse and made a rush at him; McKay said, he shot him; the man fell and caught hold of his feet, and to release himself, McKay said he beat him, and he broke the piece; he said there were some pieces left behind, the lock, the ram rod, and some pieces of the stick, and he was afraid these would trace him; I asked him what he had done with the other pieces, the barrel and the stock? He said he had put them where nobody could fine them; I asked McKay, if he had any blood about him? He said, no - none, I cast my eyes over him, but could see none; I asked McKay if he had got any money? he said, no - only a kind of bill, about 2 feet long, measuring by his arm; this is all that passed that night, McKay and Lamb were out against some straw, but I was in doors. On Sunday I went to my father’s house, no one left Lamb’s house with me; McKay left it before me; he went to church and overtook me afterwards; I waited for him; this was after church: I went then to my father’s house, and returned to Lamb’s house a little after 8 o’clock; I dined that day with Mr. Walker’s overseer; I found Sarah Taylor at Lamb’s on my return, and another young man sitting with her; I remained that night at Lamb’s house; on Sunday, after I returned I had some conversation with McKay; it was coming on dark and I was rather frightened; and said it was a dreadful thing - (meaning the murder) to happen, and be concealed; McKay said - :Never mind, hold your tongue let me beg of you to keep your peace or I am a dead man.” The first conversation I had with McKay was in the bed room, and in a low tone of voice. I was at Lamb’s all Monday; and left on Tuesday morning; McKay went away in the morning on Monday, and returned in the afternoon; he was not sober when he returned; I called him a drunkard; he said - “Never mind - I did not spend your money.” He then lay down, when I searched his pockets, and found a dollar and a shilling; I put them in my bosom, and searched him again, but could find no more money; this was about 5 o’clock in the afternoon of Monday; McKay slept with me on Monday night; on Tuesday morning McKay and I went to Launceston by the road already mentioned; we went to the Scottish Chiefs and had some drink; McKay left me there; and when I saw him next he was in custody. I saw McKay on Saturday (April lst) cutting some pieces of lead about 3 o’clock; I think I should know the ram-rod by the crooked wire, and little tea-tree stick; I believe that now produced to be the ram-rod.

By the Court. - I am 17 years of age, and have been living at Lamb’s off and on these two months, but not constantly; McKay had been living there also about a fortnight; I did not go to Lamb’s with McKay; I had seen him before when he used to travel on the road; this was before he came to Lamb’s. I had no farther acquaintance with him before he came to Lamb’s; when I first went to Lamb’s, there was nobody else there; next came a young man, who staid two days; then McKay came, and afterwards Sarah Taylor; I was born in England, and have been in the colony about 9 years. I went to Lamb’s on a visit; I saw McKay at Launceston a second time on the Tuesday; I went to Launceston on the Tuesday morning, and left in the evening, when I was apprehended. I was going back to Lamb’s house; I did not expect to see McKay again till the Wednesday. McKay used to thrash a little corn for Lamb; I cannot say whether he paid anything for his board; I never saw him pay any thing. I did not know where the prisoners were going on the Saturday night; it was between light and dark, when they left the house. Sarah Taylor was sitting sewing, when I asked McKay what he had done with his gun? She might or might not have heard me speak; I spoke much lower than I am speaking now, I did not see Sarah Taylor after she left Lamb’s, till I saw her at the Police Office. She was brought from a public house, called the William Wallace, and brought before Mr. Horne, I believe, as a witness. I gave a different account to this, at first, being falsely persuaded by the prisoner at the bar (McKay) but not upon oath. McKay told me to give that account, provided I was taken, when he told me of the murder; the reason I did not tell this to the Solicitor General, when he examined me just now, was because he did not ask me the question; I persisted in that story a night and a day; till I was taken up to the Police Office the second time; I had no conversation with McKay about that, after I was taken up; I had no opportunity. I heard of the murder, as I went to my father’s on the Sunday; I heard of it, also, at Mr. Walker’s, where I dined. I was kept in a cell at Longford jail between my examinations at the Police Office. I did not know there was any reward offered for the discovery of the murder, till I was committed to jail; I do not recollect the amounts, but I remember it was something considerable, I was committed as an accessory before the fact, I have never had a quarrel with McKay about a young man who was intimate with McKay; I had only conversed with this young man. When I went back to my place of confinement, and was left by myself, I considered I was doing wrong in concealing the real facts; nobody advised me to do so; no one was in the cell; but Mr. Hortle came to me, and said, that if I knew any thing about it, it was a pity I should be shut up in a cell. I told him I would tell him, and he took me to Mr. Harrison’s, and told me not to tell any body of it, till I came before Mr. Horne; this was after I had been examined by Mr. Horne, and made my first statement. My motive in telling what I know, was, because I considered I was doing very wrong in concealing such a crime; I was not [????].

Cross-examined by McKay. - No one was living with me when you came first in Lamb’s house; what arrangement you may have made with any other person I do not know; it is true enough that a young man, named Callister, was either to send for me, or that you should take me down the river to him; you were on the bed the second time, undressed, when you confessed to me; but the first time you were sitting on the side of the bed. When I looked at your clothes, I could not be looking for money, as I did not lay hands on them. I do not recollect saying to Sarah Taylor, that if you would bring me my “fancy-man,” you might go to ____. I might have said the words, but do not remember it. We did not go to Launceston from John Lamb’s house before Tuesday, the 4th of April; no one overtook us on the road on Tuesday, and told us the particulars of the murder; before we got to the Scottish Chiefs, we did not meet my “fancy-man”, John Callister; he was on the other side of the Scottish Chiefs, when we met him; I did not tell you to go about your business, and I would return to Norfolk Plains with John Callister.

By a Juror. - McKay described to me the dress of the deceased; he had on a chip, or straw hat, a blue jacket, and light coloured trowsers whether kerseymere, or fustian, or moleskin, he did not know; his horse had a white head or face, I do not remember which.

By another Juror. - McKay never told me where he had put the barrel and stock of the gun; he said he had put them where nobody would find them.

McKay here wished the statement made by the deceased, to be read, in order to compare it with the witness’s description of his clothes; but, as it could not be given in evidence against the prisoner, he was not permitted to avail himself of it in his favour, even should it happen to be so.

By the Court. - I was not going to live with Callister; I was going to my sister’s at Launceston, her child being ill; by the arrangement already spoken of, I did not mean to go and live with the young man.

(This witness gave her evidence with a degree of impudent effrontery, highly indecorous.)

Alfred William Horne, Esq. Is Police Magistrate at Norfolk Plains; knows the prisoner at the bar, John Lamb; he was brought before witness charged with felony; took down a statement in writing which was read to the prisoner, and signed by witness, and the mark of prisoner, the statement now produced is the one alluded to; the prisoner was brought before witness a second time on the same charge; he then made another statement, now produced, both were read over twice to the prisoner before he attested them; the prisoner marked the last statement himself, the first was marked by witness, the prisoner touching the pen; prisoner never refused to sign either statement.

Lamb here denied signing any but one statement; and that was the second one. It was now proposed to read those statement, but a difficulty occurred, as the facts stated, tended to compromise the case of the other prisoner, McKay. After some conversation it was agreed to dispose of McKay first, and then proceed with Lamb, putting in his statements as evidence against him; McKay’s case was therefore continued, and His Honor recalled.

Mr. Hortle. - On Sunday witness saw McKay at muster before church; had heard of the murder at that time, it was known there; all the ticket-of-leave men then present, must have heard of it; witness does not recollect seeing McKay after church.

The case here closed on the part of McKay who made the following strange defence; he said, that on the Saturday night, when the murder was committed, he was occupied in removing to Lamb’s house same wheat, which he had stolen from Fank Field’s; and he called Mr. Hortle, who stated that he saw some bags of dirty wheat in McKay’s room; Lamb told him it was his; but Mr. Hortle did not know whose it was; observed a small stack of wheat-straw near the door at Lamb’s house; does not know whether Lamb’s wheat was smutty or not; McKay did not tell witness from what place in Field‘s farm he had removed it; McKay told witness he was employed in removing some wheat from Frank Field’s, on the night of the murder; witness knows Frank Field; his wheat was smutty; witness did not inquire of Field if he had lost any wheat; has been often at Field’s house; he never mentioned having lost any wheat; Field’s wheat was blacker than that at Lamb’s; witness mentioned this to the prisoner.

The Solicitor-General here observed that a question had arisen in the cross-examination of Anna Ward, by the prisoner McKay, which it would be necessary for Sarah Taylor to answer.

His Honor to McKay - Would you wish to have Sarah Taylor called, and examined on this point?

McKay. - I would your Honor.

Sarah Taylor re-called and examined by McKay - Remember hearing Anna Ward say several times, that if she could get to her fancy man, he McKay might go to ____.

The prisoner having expressed a wish to have James Britton examined, as to the clothes the deceased had on, with a view to contradict the statement of Anna Ward, he was accordingly re-called, and stated that Mr. Wilson had on a blue jacket, a blue and a white waistcoat, drab trowsers, boots, white hat, and a black silk handkerchief round his neck - the hat was a chip or straw hat. The prisoner was about to examine this witness as to the statement of the dying man, respecting his usage by the assassin, but His Honor would not permit it, as it could not be admitted in evidence.

The case against McKay closed here, and His Honor proceeded to sum up, which he did with great care and minuteness. He begged the jury to receive the evidence with caution, in consequence of the large rewards, which had been offered for the conviction of the murderers, and animadverted very severely on the shamelessness evinced by Anna Ward. His Honor went over the whole of the evidence, pointing out the most striking facts, and comparing the testimony of the several witnesses; he was occupied more than an hour in so doing, and appeared very much exhausted, when he had concluded.

The jury retired about a ½ hour after 8 o’clock, and after being absent about ¼ an hour returned verdict of -Guilty against John McKay.

Lamb’s case was now proceeded with, and his statements, as made before Mr. Horne, were read. The first statement went to prove the loss of the gun, when the prisoner was out shooting pigeons, and was in substance, to the same as the story he told Mr. Hortle on his apprehension. The second statement repudiated the first, and was a kind of “confession.” It stated that the prisoner Lamb lent McKay his gun, and that they both went together on Saturday evening towards the brush fence; that then Lamb returned towards the house, and went and lay down on some straw, as pigs were in the habit of eating his wheat. He had not been lying down long before he heard a shot; and that some time after McKay returned, but without the gun. Lamb had previously asked McKay what he was going to do with the gun, when he said “what is that to you?” and on pressing him further he threatened to give Lamb the contents of it. On being questioned about the gun, he told Lamb the particulars of the murder, and said he had left part of the stock, lock and ramrod on the road, and had buried the barrel on his Lamb’s ground, but would not say where; he said McKay had urged him to make the first statement, which was not true.

Being called upon for his defence, Lamb told a rambling story about going out with McKay on Saturday evening to shoot a steer, belonging to George Bail; and he called on Mr. Hortle to prove that he had some salt in his house, with which he intended to salt the meat thus obtained. Mr. Hortle proved to finding about 20 or 30 lbs of salt in the house but could not tell what it was for. The prisoner, also had Charles Wise recalled to prove the existence and direction of the several roads in the [???] nothing material to the case.

Patrick Whelan was called on his subpoena, but did not answer; his evidence, we understand, was immaterial to the prisoner.

His Honor addressed the jury on the subject of the two statements; and pointed out how far the second coincided with the evidence of Sarah Taylor, and Anna Ward; he observed, also, that although the prisoner, Lamb, had no actual hand in the murder; yet if he was aware of it, and was engaged in watching, or was only waiting on the side, during its perpetration, he was as guilty in the eye of the law, as the actual perpetrator.

The jury retired, and after being absent about 20 minutes, returned a verdict of Guilty against John Lamb.

His Honor proceeded at once to past sentence upon the miserable men. He pointed out to them in a feeling and forcible manner the enormity of their crime; inveighed in strong terms on the dissolute life the prisoners had been leading; and, after urging them to make the best use of the short time they had to live, expressed a fervent hope, that, when they appeared on the scaffold, they would be in a better frame of mine, than they were evidently in at that time. His Honor then sentenced them to be executed at Hobart town on Monday, and their bodies to be afterwards hung in chains as near the scene of the murder as was practicable.

McKay maintained a hardened boldness throughout the whole day; his countenance changed after the verdict, and assumed a ghastly hue; Lamb seemed surprised at the verdict, and loudly declared his innocence, in protesting which, he was removed along with the companion from the dock. The trial lasted nearly 13 hours, and was regarded with the most intense interest. His Honor, the Chief Justice, exerted himself very greatly in behalf of the prisoner; and took every pains to elicit the truth from the several witnesses.

Execution

Source: Cornwall Chronicle, 6 May, 1837[3]

The gibbetting. - The body of McKay, hung at Hobart Town, arrived at Perth, at two o’clock yesterday afternoon, under charge of Lyons, the Sheriff’s Bailiff, and a constable, arranged in the usual iron casing, and ready for exhibition on the gibbet, agreeable to the terms of the sentence of the Judge. The Under Sheriff of this town had previously received instructions to cause the body of the malefactor to be gibbetted, as near to the spot at which he committed the murder, as possible, and had prepared ready for its arrival, a gibbett, 20 feet high, at about 450 yards from the main road, to which the body was securely attached about 4 o’clock, in the presence of that Officer, the Commandant, and a number of spectators.

With that promptitude to benefit the inhabitants of this town, for which our Commandant has been distinguished during his residence among us, he did not permit the awful ceremony to pass over, without rendering it serviceable, by way of example, to the unhappy members of the chain-gangs and road-parties stationed along the Perth road. They were present, and after the termination of it, were addressed by the Revd. J. Manton, in a very appropriate and feeling manner.

It is represented to us, that the exertions of Mr. Purvis, the Superintendent of the chain gangs at Perth, were praiseworthy, and that to them may be attributed the expeditious execution of the commands of the Government.

Lyons, it is said, stated at Perth, that he expected to meet the body of Lamb, on its way over, for a similar exhibition, on his return to Hobart Town, and that McKay made some confession under the gallows, that caused the delay of his executions. McKay acknowledged the justice of his sentence, and said, that it was Lamb, and not himself, who shot Mr. Wilson.


Notes

[1]   See also True Colonist, 5 and 12 May 1837; Cornwall Chronicle, 6 May 1837 for other accounts of the trial.  Also see R.P. Davis, The Tasmanian Gallows: A Study of Capital Punishment (Hobart, 1974), pp. 34-5.

[2]   This refers to a convict, assigned by the governor to work for a private person.

[3]   In this, as in many other murder cases, the trial was held on a Friday and the prisoners condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were not to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death.

                Under  s. 5 of the Act, 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 burifal.  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.

C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 470 points out that hanging in chains was abolished in England by 1834, 5&4 Will 4, c 29, but that was  not adopted in New South Wales at least until 1837.

Capital punishment was sometimes carried out at the place of the crime in New South Wales.  See www.law.mq.edu.au/scnsw Subject Index under "capital punishment, at place of crime".