Murder of John Daley, Tumut
The Sydney Morning Herald
12 September 1844
Assize Intelligence. Berrima Circuit Court. Before His Honor Sir. Justice Stephen.
His Honor took his sent on the Bench at nine o'clock. Murder.
Henry Atken, late of the Tumut River, was indicted for murdering one John Daley at the Tumut, on the 13th January, by striking him over the head with a blunt instrument; a second count charged the offence as committed by throwing deceased on the ground and by striking and kicking him there; a third count charged the offence as committed by throwing deceased into the river and drowning him.
The prisoner pleaded not guilty.
From the evidence it appeared that the prisoner and the deceased lived together at Mr. John Hay's station on the Tumut River, the former os shepherd and the latter as watchman and hut keeper. On the day on which the murder had been committed, the deceased had been last seen alone by a man named Thomas Richards, who resided on the opposite side of the river to deceased.
He had then told Richards that a mare and filly of his (deceased's) had come home, and that he was going down to the paddock at the old station (a distance of some three miles on the other side of the river) to repair it, and put his horses in; some short time previously to this, he had been seen by a stockkeeper, who was passing, in the mill shed-grinding wheat. After this deceased was not seen again alive.
On the following morning, the prisoner had come to the edge of the river, and had called out to Richards's daughter, asking her if her father was at home; and on her replying that he was, prisoner asked if Daley (the deceased) was there; she replied he was not, and prisoner then told her he wanted to see her father.
When Richards cam out prisoner again asked for Daley, and Richards said he had not been there; prisoner then replied that he was fearful the blacks had killed him, for that about twelve o'clock on the previous night his (deceased's) dogs had come rushing home, howling and apearing very uneasy, but that Daley himself had not returned; Richards then told prisoner where he had last seen deceased, and prisoner said that he too had seen the deceased going to the old station, and that he had met him afterwards coming back with a handkerchief full of cabbage; prisoner then asked Richards to go and look for Daley up at Cavenagh's, (another shepherd of Mr, Hay's, residing about four miles and a half away,) and that if he could not hear of him there to go in and report it to Mr. Hay, for that he (prisoner) was very uneasy about it, as he thought Daley had been murdered by two blacks, who had been grinding for him on the previous day; Richards then went to the old station and saw the mare and foal in the paddock; he afterwards went to Cavenagh's, but hearing nothing of Daley, he went on to Mr. Hay's and reported the circumstance. Immediately on hearing of the occurrence, Mr. Hay, accompanied by Mr. Elmslie, Richards, a stockkeeper, and a black aboriginal, departed for the station, and on their arrival they began to look about for tracks, especially of black fellows; they first searched the house, of which the floor was soft and dusty, but could find no track of black fellows; they also searched the mill-house with the same result; round about the hut, the sheep-fold, and the flat was then searched, but no blacks' tracks could be discovered, neither had any of the parties seen blacks there within some lime.
The banks of the river, which were steep, were then examined, to see if any marks of the deceased having slipped or been pushed into the river, were visible, but none were found. Mr. Hay then went up to the prisoner, who was feeding his sheep near the spot, and asked him to tell when he had seen Daley last, and what he knew about it, so that they might have some clue to the discovery of the body. Prisoner replied, that he had met Daley with a black fellow, some distance up the flat, and that Daley had told him he was going up the creek to look for a large flat stone for the fire-place, and that if he could not find one, he would go over to the old station and fetch some heads of cabbage, and that Daley then mentioned that he had left another black follow grinding at the hut; prisoner also said, that when he came home to the hut, he found part of the tea, sugar, and tobacco, gone, as also a damper which Daley had told him he had left in the fire.
Mr. Hay said he could see no tracks of black fellows; when prisoner replied, that there were plenty, and plain to be seen, in the morning. Mr. Hay then asked him what he thought had become of Daley; he replied, that he thought that the murdering cannibals had killed him for his bit of tea and sugar.
Mr. Hay afterwards asked bim if Daley might not have fallen into the river whilst fishing; when he said, it might be so, for two of the fishing lines were gone; or that perhaps, whilst fishing, the blacks might have come behind him, knocked him on the head, and pushed him into the river. Mr. Hay asked prisoner why he had not reported the man the same night; and he replied, that he had expected him home every minute during the night, and that when he found it late, and that Daley did not come, he had gone to the watch-box and laid down; about midnght he had been awakened by deceased's dogs coming rushing up to the fold very uneasy. He then said that one of the dogs, on the same morning, had run frequently to a particular point on the river, and when there, that he had howled horribly towards the river. Mr. Hay said, "Do you think Daley is there?" and he replied that he could not say.
Prisoner then went down with Mr. Hay and showed him the point. In the mean time the others, in company with the black fellow, had discovered a track across the flat, which was recognised as Daley's; and some small pieces of cabbage, which had been dropped near the river. Mr. Hay and Richards again went and tracked the banks of the creek and river without discovering anything; when they came to the point or bend of the creek pointed out by prisoner, Richards saw a pocket-comb, within a yard of the edge of the bank, trodden into the sandy soil; and on showing it to prisoner, who had joined them, he at once recognised it as Daley's.
They then noticed a spot or two of blood, near to whore the comb laid; and the others coming up at the time with the black fellow, they were enabled to discover a track of blood, in small spots, on the sticks and leaves, from the fold down to the river; and near all the spots of blood was a large foot-track, which corresponded with the size of prisoner's foot. They also perceived that the herbage on the edge of the river, near where the comb was found, was pressed down, as if from a body lying on it.
It was thus judged that the body had been thrown into the river at that point; and on descending the bank to a small ledge at the edge of the water, four foot-tracks were found, two descending and two ascending; one was so close to the bank that it had scraped away part of the earth in its descent; another was found close to the water's edge, on a tussock of grass, with the heel towards the water, and appeared to have been from a person coming up from the water, as the foot had been wet when the track was made; the tracks had been made on the previous evening, for it was evident that the dew had fallen on them; the tracks were all alike, yet when the prisoner was asked about them, he confessed that three of the tracks were his, but that the track on the tussock of grass coming from the water was not his, and that this was the point where the dog had been howling, and that he had gone down to try if he could see anything; being convinced that the body had been put into the river at that point, they prevailed on the black fellow to search the water from there downwards, for, the water being deep, with a strong current downwards, they expected the body would have drifted; the black then went in, and about fifty yards down he found the body; there were no marks of violence on the body, but there were three large cuts on the head - one on each side, towards the top, and the other at the top-having evidently been inflicted by some blunt instrument, as the skin was cut in a jagged manner; a large quantity of the matter of the brain was protruding from the wound on the top of the head, and it was found on examination that the fractures ran from one into the other of the wounds, completely dividing the skull into two parts; there was also a considerable incision behind the ear, inflicted by some sharp instrument like a knife, which, must have been done when the body was down; the prisoner on seeing the body said " Poor Daley ! the last time I saw him he was laughing and whipping a black fellow!"
They all went up towards the sheepfolds afterwards, and Richards noticed a spot where there had apparently been a fire, near to the carcass of a dead sheep. His attention was drawn to it by there being no burnt ends of stick in it, but merely coals and ashes, he put his hand down into it, and brought his fingers out bloody.
He called the attention of the others to it, and the ashes were removed, and beneath the grass was found green and unburnt, but saturated with blood, which had evidently been in a considerable pool, there was also a small pool of blood near to where the dead sheep lay, but on examining the carcass no wound from which it could have bled was found, it having been torn open by dogs, altogether three was more blood than could have come from a Sheep. The hut was again searched, and some of the deceased's clothes were missing.
They all then retired, leaving the prisoner alone at the station, and the next day Mr. Hay returned with Mr. Davidson, a surgeon, but on going to the place where they had seen the blood on the previous evening, they found that a fire hid been made upon the spot where they had seen the blood, which was hardened and caked by the heat.
The prisoner was with his sheep, and when Mr. Hay went up to him, he told him that he must get another man to mind his sheep, or else that he must get a watchman, or remove to some other station. Shortly afterwards, Richards told prisoner that if he did not think his clothes safe, he might bring them to his place , prisoner did so, and then Richards asked him it he would like to see Daley's body; he said he should; and when he went in he said, that whoever hand done it, had not had more than an hour to do it, for it was not more than that from the time he brought his sheep in to when he had last seen him, and that he had seen him last with a black fellow looking for flags. With respect to the bad feeling that existed between the deceased and prisoner, it appeared from the evidence of Patrick Cavenagh, that on the Christmas-day previous, the prisoner had dined at Cavenagh's; Cavenagh's wife and his step-daughter, a young girl about twelve years of age, were there, and after dinner, Cavenagh and the prisoner went out, when prisoner told him that if he would give him (prisoner) his daughter in two years time, that he (prisoner) would come up and shepherd and do all he could for him, Cavenagh told him that he ought to be ashamed of himself for talking of such a thing about a child; prisoner then told him that if he would not give her to him, he would take her away; Cavenagh was very much annoyed, and was getting into a passion, when prisoner turned it off with a laugh, and said it was easy to get him out for a scot, he had spoken of this matter on one or two occasions to Cavenagh, who always told him that he ought to be ashamed of himself for thinking of such a thing. Prisoner was afterwards speaking to Cavenagh about a shoemaker who was living with him (Cavenagh), and whether he was to have his daughter , he had often said to Cavenagh that Daley was a master's man, and always wanted to act as overseer, he had also said that Daley was jealous of him for going up to Cavenagh's house about the girl, and that he thought the old woman (Mrs Cavenagh) would give the girl to Daley.
The prisoner cross-examined Cavenagh at very great length, endeavouring to show that he had an ill-will against Daley, and had threatened his life, and that he had done so from being jealous of him with his wife.
A long statement of the prisoner's was then put in and read, to the effect that two hours before sundown he had seen deceased with a blackfellow two miles from the sheep station. Deceased had told him that he was going to look for some flags for the hearth, and that his mare and foal had been seen on the flat, and that he was going to put her in the paddock by mending the fence, and that he would bring home some cabbage.
They passed on, and prisoner returned to the hut at sundown, and wondered where deceased was, as the cabbage and knife, with the stock whip he had had, were there. He thought deceased had gone to Cavenagh's to see about some boots he had spoken about.
He waited supper for deceased some time, and when he found he did not come, he went to the watch-box, and with some red ashes and bark he made a light to see to make his bed. He then returned to the hut, and stayed some time longer, but finding deceased did not come, he went and slept in the watch-box.
About twelve o clock he was awakend by Daley's two dogs coming up, and he thought Daley had returned, so got up and put on his boots, but on looking about he could see no signs of him. He then went again to the watch-box, and remained till sunrise.
In the morning, after breakfast, he thought something was wrong, as the dogs seemed very uneasy. He then looked over the things in the hut, and missed some tea, sugar, tobacco, and a damper that Daley said he had baked. As he thought that something had happened to Daley, he went to the river - to some huts about five hundred yards off, and called to Richards, if he had seen anything of Daley.
Prisoner told him that he had seen him going to the pad dock, and also about the dogs; and that he thought something had happened on account of the dogs. He told Richards that he would track the creek up to the river. He did so, and could discover no traces, and on his return, spoke to Mrs. Richards about it, and said, that something had happened to him, if he was not at Cavenagh's.
He then took Daley's two dogs with him, and noticed nothing till he came to the river, when one of the dogs stood at the point and howled. He went down to the water's edge and looked about but could see nothing. When he came back, Mr. Richards asked him if he had seen any blood, and he replied nowhere, except where the sheep died. He then met Mr. Hay and Mr. Elmslie with a black fellow, and they found the blood, and the black fellow went into the river. When he was speaking to Daley about going to Cavenagh's about some boots, Daley said that he would not go near him, for he (Cavenagh) had threatened to rip his (Daley's) inside out. The day after the body was found, he saw Cavenagh, who said it was bad news about Daley. Daley's two dogs were with prisoner, and flew at Cavenagh very wickedly. Prisoner kicked them off, and Cavenagh complained of their being wicked. Cavenagh asked if there were many out looking for the body. Prisoner told him there were a good many. Cavenagh then asked about deceased's clothes, and told prisoner he was a fool not to have looked out for them.
Cavenagh said there was a suspicion on prisoner, and advised him to bolt, and prisoner said he would not bolt if fifty men were murdered. Cavenagh has since had a new hat and suit of clothes. Cavenagh told prisoner there were two blacks at his hut, and prisoner thought in his own mind that Cavenagh had sent the two blacks to the hut to cover the murder. Cavenagh was jealous of Daley about his wife, and had a down on him too about the robbery of a saddle.
The prisoner when called on for his defence said that he was innocent, and that was all he had to say, and he would leave it to His Honor and the gentlemen of the Jury to pass their judgment as to whether he was innocent or guilty.
His Honor in summing up said, that the present was one of the most painful cases that he had had to try for some time, and there was no part of the colony where cases of the sort were so frequent, and that consequently the Jurymen must be prepared to look at it with all the caution and experience necessary.
The prisoner's life was in then hands, and to them the case must go, nothing stood between the prisoner and death, but their verdict. There were no points of law to take, and to the Jury alone was the whole case committed.
It certainly had been a most atrocious murder, and if the prisoner was
guilty, he had added most grossly to his wickedness by the defence he had set up. If the prisoner was as found
guilty, his (His Honor's) duty would be a painful but a simple one for he
should not only sentence him to die, but should leave him for execution.
The Jury retired for about ten minutes, and then returned a verdict of guilty.
The prisoner on being asked if he had anything to say why sentence of death should not be passed on him, still professed his innocence of the deed.
His Honor said, that any person who had taken notice of the case must have come to the same conclusion as the Jury, and he had been found guilty on the most satisfactory evidence. He would advise him to make his peace with God, and if agreeable to the dictates of his conscience he might die on the scaffold professing his innocence, but he felt perfectly convinced that it was a just sentence, and he need not inflict an extra pang upon the Jury by protestations of innocence. No human eye had seen him deal the blow which had robbed his victim of life, but it was certain from the testimony that he had done it.
This was to be settled in the sight of God.
The Jury and himself had discharged their duty by endeavouring to arrive at the truth of the matter. He could hold him out no hopes of mercy, and he besought him not to sink his soul deeper in crime by protestations of innocence. His Honor then passed sentence of death on the prisoner in the usual words.
The Court rose at half-past eleven, p.m.