The Brisbane Courier, Fri 3 May 1878 1
THURSDAY, MAY 2.
BEFORE his Honor Mr Justice Lilley, and juries of four.
COCKERELL v. MARKWELL.
The Attorney-General, with Mr Power, instructed by Mr CE Smith, appeared for the plaintiff; and Mr Pring, QC, with Mr Real, instructed by Mr P Macpherson, for the defendant.
Jury: Messrs Thos Freeney, John Chesney, John McLennan, and John Crowther.
The statement of claim recites that, before the happening of the grievances subsequently set out, one John Wheeler had been indicted and convicted of perjury at Brisbane committed in an affiliation case in which he was defendant and one Ellen Hurley complainant. The words of the alleged slander are then set out, implying that the defendant and two others—Wallace Gordon and John Daniels—had conspired together to get Wheeler convicted in order to compass certain ends of their own, and that they had had improper relations with Ellen Hurley. The defendant, in his statement of defence, says he denies that he spoke or published the words attributed to him, or words of a like nature; that if they were spoken (which he does no admit) they were neither spoken maliciously nor with the meaning imputed to them by the plaintiff; that they were spoken, if at all, on an occasion when the plaintiff’s character was not likely to be injured thereby; and that the alleged slander was a privileged communication.
The slanderous words were alleged to have been used in the commercial-room of the Oxford Hotel, Queen-street. The first witness called in support of the plaintiff’s case was John Daniels, who stated that some time after Wheeler’s conviction he was in the hotel mentioned in company with the defendant and his father-in-law (Mr Beal); that the defendant had said the plaintiff, himself (Daniels), and Gordon, with others, had given a little money to assist Ellen Hurley with her case; that they had done it with an infamous purpose, and other slanders of a similar character. In cross-examination, the witness stated that the defendant was very much the worse for liquor at the time; that the conversation mentioned took place at one of several small tables in the room; and that he thought there was too much noise for others to hear what was said.
John Beal was also called by the plaintiff, but he said that he was drunk at the time, and had no recollection of what took place.
John Crowley Moxley was another witness for the plaintiff, but stated he had no recollection of hearing any conversation between the parties mentioned about Wheeler’s case.
The plaintiff [John Thomas Cockerell] gave evidence of a conversation he said he had with the defendant in Queen-street, in which he admitted having used bad language about the plaintiff, and expressed his desire that the matter should go no further; but the defendant denied that he had ever had such a conversation, stating that he had not spoken to the plaintiff for three years. The defendant also said he had no recollection of having used any such words as those imputed to him.
At the close of the defendant’s case, the court adjourned, at half-past 4 pm until 10 o’clock the following (this) morning.
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The Brisbane Courier, Sat 4 May 1878 2
FRIDAY, MAY 3.
BEFORE his Honor Mr Justice Lilley.
COCKERELL v. MARKWELL.
This was an action for slander, brought by John Thomas Cockerell against John Markwell, damages being laid at £500.
The Attorney-General, with Mr Power, instructed buy Mr CE Smith, appeared for the plaintiff; and Mr Pring, QC, with Mr Real, instructed by Mr P Macpherson, for the defendant.
Jury: Messrs Thos Freeney, John Chesney, John McLennan, and John Crowther.
The evidence in this case had been finished on the previous day, and at the close of the addresses of counsel, his Honor proceeded to sum up. He reviewed the evidence on the various points in the case, and gave the jury the following questions:—
1. Were the words spoken? If so, were they spoken as imputing an indictable offence, or merely in a defamatory sense?
2. Were they used on an occasion when the plaintiff’s character was likely to be injured thereby?
The jury then retired, and after an absence of about three-quarters of an hour, they returned with answers as follows:—
1. Yes, but in a defamatory sense only.
3. One shilling. The last question was merely answered provisionally.
HIS HONOR, upon the above answers, ordered judgment to be entered for the defendant.
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The Brisbane Courier, Tue 17 Sep 1878 3
CITY POLICE COURT.
MONDAY, SEPTEMBER 16.
BEFORE the police magistrate.
BEFORE the police-magistrate, and Mr JH Wheelwright, JP.
MANSLAUGHTER.—John Thomas Cockerell, jun, 32, fisherman; James Clark, 21, gardener; and John R Purchase, 18, baker and confectioner, were brought up, charged with the manslaughter of one Daniel Driscoll. Mr CJ Blakeney appeared to watch the case on behalf of the prisoner Cockerell.
Senior-constable Patrick Cleary deposed that, in consequence of information received, he, on the morning of the 15th instant, went to the house of the prisoner Cockerell, in South Brisbane; he found the prisoner in bed, and asked him if he was in town on Saturday night, Cockerell said “Yes;” witness asked him further if he had had a row, or did he strike any one, and the prisoner replied that he did not remember anything that happened, as he was “dead drunk last night;” witness then told him to get up, and arrested him, telling him at the time, “You are charged with beating a man last night who has since died;” prisoner said, “Are you going to bring the other fellows who were with me;” witness asked him their names, and he replied, “Jim Clark and Jack Purchase;” witness then examined prisoner’s hands and saw a slight sign of blood on the back of his left hand, and that the skin had been freshly knocked off one of the knuckles of the same hand; the witness then proceeded to the residence of Clark, and afterwards to that of Purchase, and arrested both prisoners, stating the same charge to each of the three; the prisoner Clark, before being arrested, acknowledged that he was with Cockerell the previous night, and said that when they were in town, going along Queen-street, they saw two men, one of whom said to Jack Purchase, “I will give you in charge;” he (Clark) struck no person; he saw a row going on, and saw a man with big sandy whiskers fall from the footpath on to the street. Purchase also, before being arrested, admitted he was with Cockerell and Clark the previous night, and said, “We met two men in Queen-street; one had large whiskers; he said to me “I’ll give you in charge;” I struck him; none of the prisoners made any reply to the charge when arrested; Purchase said the two men they had a row with lived at the Ipswich boarding-house.
The witness, in reply to the prisoner Purchase, said that he, Purchase, had told him that the men the prisoners had the row with lived in the Ipswich boarding-house.
Constable Alexander Long corroborated the evidence of the previous witness as to the arrest of the prisoners, and further deposed that when Cockerell was dressing himself he (witness) saw some wearing apparel, including a pair of gray trousers, on a table, which Cockerell told him were those he wore the previous night, at the same time pointing them out; witness afterwards took possession of the gray trousers so pointed out by prisoner, and produced them in court, and deposed that they were stained apparently with blood; the witness also corroborated the evidence of Constable Cleary with regard to the marks on Cockerell’s hand.
Constable John O’Donnell deposed that about ten minutes past 12 o’clock on Sunday morning, from something he heard, he went to the Bank of New South Wales, corner of Queen and George streets; he saw a crowd of people standing on the footpath there, and on going closer he saw a man lying on his back on the footpath; witness proceeded to lift him up, and in doing so observed that his face was covered with blood; he found the man was unable to stand, and he laid him down again, and afterwards, with the assistance of Constable O’Connell and a man named Woods got the injured man into a cab and took him first to the watchhouse and thence to the hospital, without any delay; the injured man was insensible all the time; before getting to the hospital, when near the exhibition grounds, the man, who was supported in the witness’ arms, gave two heavy sighs and his head dropped back; after having been delayed some time at the hospital gate the cab was admitted and the injured man was carried in and placed on a bed; witness did not then know he was dead; he saw the body of the man in the dead-house of the hospital afterwards during the same day.
Thomas Woods, a butcher by trade, residing at the Ipswich boarding-house, George-street, deposed: I knew a man named Daniel Driscoll, who was residing at the Ipswich boarding-house with me since I came to town last Saturday week; about half-past 11 o’clock last Saturday night Daniel Driscoll and I walked together down Queen-street; we went as far as Edwards and Chapman’s corner, when we returned back along the same side of the street; below the St Patrick’s Tavern there was a mob collected, and Daniel Driscoll said to them, “Gentlemen, stand back and let us pass;” someone in the crowd accosted Driscoll, and showed fight by putting up his hands; I cannot swear that any of the prisoners is the man who accosted him; I did not afterwards see the man who squared at Driscoll; when the man squared I put my hand on Driscoll’s shoulder to get him away, and when I was trying to get him away another man came and squared in front of me; I said to the man, “If you strike me I will give you in charge;” I cannot identify either of the prisoners as the man who squared at me; I identify all three prisoners as being present in the crowd at the St Patrick’s Tavern when the man squared at me; two policemen came up at the time, and the man who squared at Driscoll and myself mingled with the crowd; neither of the men who squared struck a blow at that time; Driscoll and I then proceeded up the street, and went into the European Hotel; before entering the hotel I observed the three prisoners now before the court following us; they followed us into the bar; Driscoll and I each had a nip of brandy; the prisoners did not speak to us then, nor did we speak to them; the prisoners left the hotel first, by the door leading to the right-of-way; Driscoll and I followed them out almost immediately; the prisoners, when we passed out, were standing in the right-of-way; Driscoll and I went up Queen-street to the Bank of New South Wales; when we reached the bank Driscoll said “I think we’ll have a few minutes’ smoke before going to bed;” it was then about 12 o’clock; we lighted our pipes and were leaning with our backs against the wall of the bank in Queen-street, close to the corner of George-street, when the prisoners came up, and Purchase said, “Here are the —–, let them have it;” the prisoner Cockerell rushed at me, and struck left and right at me, breaking the pipe in my mouth, and striking me several blows on each side of the chest and on my face and nose; Cockerell also struck Daniel Driscoll with his fists on the body near the heart, and Driscoll fell on the street; I saw Cockerell strike Driscoll twice before he fell; Driscoll after being knocked down the first time got up; the first time Driscoll was knocked down he fell on the footpath and partly against the wall of the bank; Cockerell at that time struck Driscoll on the chest and on the back of the neck; Driscoll then got up, and Cockerell struck him again on the chest, near the heart, and Driscoll fell out on George-street; after knocking Driscoll down the second time Cockerell left him, and rushed at me; I ran across to the opposite corner (Sloss’); Cockerell followed me to the corner on the footpath and struck at me; I stopped the blow and he fell; then the three prisoners rushed me again, and I received several blows on the chest and face; Cockerell and Purchase struck me; I made in to Sloss’ shop for refuge, and eventually escaped to my own lodging from the prisoners, who followed me there; I saw the prisoner Purchase as well as Cockerell strike Daniel Driscoll; I saw Purchase strike him once; the prisoner Clark was along with the other two; I saw him assist them; he made an attempt to strike me; he struck Daniel Driscoll; all three prisoners were acting in concert, and each of them struck Daniel Driscoll; neither Driscoll nor myself gave any provocation for the assault, Daniel Driscoll could not have given them any provocation without my knowledge; after I heard prisoners going away from the door of my boarding-house I again went across to the Bank of New South Wales, and saw Daniel Driscoll lying on the footpath at the George-street side of the bank; there were two constables there (witness identified Constables O’Donnell and O’Connell as the two); Driscoll was unconscious when I arrived; witness corroborated the evidence of Constable O’Donnell with reference to placing the injured man in the cab, and added, I saw Daniel Driscoll dead at the hospital yesterday; from the commencement of the row until I returned and found Driscoll insensible about ten minutes elapsed; it was a fine moonlight night; after the row I next saw the prisoners yesterday morning in the cells at the watch-house; I identified them as the men who assaulted Daniel Driscoll and myself.
By the police-magistrate: Daniel Driscoll and I were sober when the row took place; when the three men attacked us there was not a crowd about the bank; there were two cabmen on the stand at the opposite corner of the street.
Mr Blakeney cross-examined the witness at some length, without shaking his evidence in chief.
By the prisoner Clark: You struck me in George-street; you also struck Daniel Driscoll; Driscoll was on the footpath in George-street when you struck him; I was not alongside Driscoll when you struck him.
By the prisoner Purchase: I am certain you struck Driscoll in George-street; I was at the corner; I did not run away after I got the first blow.
By Sub-inspector Stuart: When I returned from my lodging I saw Daniel Driscoll’s face was covered with blood; I was bleeding myself.
By the police-magistrate: I could not observe whether or not the prisoners were drunk.
James Cuddihy, cab proprietor, residing at Wharf-street, Spring Hill, deposed: I was on the stand at the Treasury corner, George and Queen streets, about 12 o’clock on Saturday night; I know the last witness, Thomas Woods; I saw the body of a man lying in the morgue yesterday; I identified it as the body of a man I carried in my cab to the hospital on the morning of that day; while I was standing at the corner on the cab-stand on Saturday night, about 12 o’clock, I saw the last witness and the deceased man, Daniel Driscoll, come up Queen-street; they were both smoking; they were standing smoking at the Bank of New South Wales corner; it might be two or three minutes; they were leaning back against the wall; I saw a mob of eight or nine men come up the street; when the mob came the prisoner Cockerell struck the last witness (Woods), who then ran away; Driscoll stood his ground; I lost sight of Woods; I then saw Cockerell knock Driscoll down; the first time he knocked him down the prisoners kicked him; the first blow Cockerell struck Driscoll knocked him down; Driscoll said, “Won’t you let an Irishman scramble up?” Driscoll tried to get up, and the prisoner Clark struck him on the side of the head and kicked him as he was falling; Driscoll struggled to get up a second time, and Cockerell and Purchase struck him and knocked him down again; there was another man present; I do not see him, but I would know him again; the three prisoners kicked Driscoll on the ground; Driscoll got on his feet three times; Driscoll got the first three falls in Queen-street; they kicked and beat him round into George-street; in George-street Cockerell came at him again, at the last fall, and said, “I’ll pull your —– gizzard out;” Cockerell struck the last blow on Driscoll’s right breast, and he fell on his back out in the street, with his left arm stretched out towards the railway station, where he lay; I heard Clark say, “Let him have it by all means”; afterwards four civilians came and picked Driscoll up, and placed him sitting against the wall of the bank, but he fell down again; after about ten minutes two constables came up; Driscoll was sitting up against the wall; they put him in my cab, and I drove them to the hospital.
Cross-examined by Mr Blakeney: I saw everything that occurred; I saw Cockerell before that night, but not the others; there were two cabmen on the stand at the time—Joe Gray and myself; the prisoners were not pointed out to me at the watch-house; I picked them out myself from among a lot of drunkards.
By the police-magistrate: The prisoners were ranged in a line with other when I identified them.
At this stage of the proceedings, it being 6 pm, the prisoners were remanded, and the further hearing of the case adjourned until Monday, the 23rd instant; bail refused.
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The Brisbane Courier, Tue 24 Sep 1878 4
CITY POLICE COURT.
MONDAY, SEPTEMBER 23.
Before the police magistrate and Mr Arthur Martin, JP.
John Thomas Cockerell, James Clarke [aka Clark], and John R Purchase were brought up on remand, charged with the manslaughter of one Daniel Driscoll. Mr Pring, QC, instructed by Messrs Rees, R Jones and Brown, appeared for the prisoners Clarke and Purchase, and Mr CJ Blakeney for Cockerell.
Thomas Woods, recalled, resworn, and cross-examined by Mr Pring, deposed: I did not recognise either of the prisoners at St Patrick’s Tavern; up to the time I got to the European Hotel I did not see either of the prisoners; up to the time Driscoll and I entered the European Hotel I had not seen any of the prisoners; after we entered the European Hotel I first saw the prisoners standing at the bar; neither of them spoke to me or Driscoll in the European Hotel; the prisoners left the hotel first; they went into the right-of-way; Driscoll and I followed them out immediately through the right-of-way; the prisoners were standing in the right-of-way when we entered it; there is room for two or three to go abreast in the right-of-way; they did not speak to us till we got into the right-of-way; Driscoll and I went from the right-of-way to the corner at the Bank of New South Wales; we were not in George-street when we lit our pipes; we lit them in Queen-street, at the lower side of the corner; it was a bright moonlight night; no one spoke to us after we lit our pipes; there was no one where we were standing at the bank corner; I only saw two cabs on the stand; I did not see the cabmen; I did not hear any one speak after we lit our pipes; the three prisoners came up, and Cockerell struck at me first; he did not strike me without saying anything; the prisoners came rushing up, and all three said “Here are the ——, let them have it”; I am sure they came rushing up; I saw them coming up; they rushed in and struck at me; all three gave a bound on to me; they came in a mob; Cockerell struck me; Driscoll was beside me at the time; I was struck first; I was hit on the nose and chest; the blows did not knock me down; I ran away as soon as I could; then they struck deceased; after I received the blows I got away, but I still remained in Queen-street; I got away as far as the entrance to the bank in Queen-street; I saw them knock Driscoll down; that was the first time I saw him knocked down; there were several persons at the bank corner; when I was struck these persons were not present; they were persons passing to and fro I suppose; I cannot swear there were other persons came up with the prisoners; others might have come up with them; Cockerell struck Driscoll and knocked him down; I stood on my own ground and did nothing when I saw Driscoll struck; I was not drunk; I recollect what took place; I stood there while Driscoll was at the bank corner at George-street; then I moved up to the corner and saw them strike him; I saw Cockerell strike him; he knocked Driscoll down; prisoners Purchase and Clarke were along with Cockerell; if others were there I should have seen them; they were not on the footpath; I did not observe any persons but the prisoners when Cockerell knocked Driscoll down; prisoners Purchase and Clarke were along with Cockerell; if others were there I should have seen them; they were not on the footpath; I did not observe any persons but the prisoners when Cockerell knocked Driscoll down the second time; there were people passing in the middle of the street; I did not see any of the four persons now present—Henry Perrin, Matthew Perrin, William Edgar, and James Purcell—at the corner of the Bank of New South Wales; I only saw Driscoll knocked down the first time and the last; Cockerell knocked Driscoll down on the road in George-street the second time; I had got up to the corner then; the prisoners then rushed me and I ran away; I did not return to the bank until the time I returned and found Driscoll with the police at the corner; I did not see what occurred after I saw Driscoll down in George-street; Clarke kicked Driscoll on the body; Clarke was on the footpath in Queen-street when he kicked Driscoll; that was before Cockerell struck Driscoll the second time; I did not see Purchase strike Driscoll; that was before Cockerell struck Driscoll the second time; I did not see Purchase strike Driscoll; I saw Purchase strike Driscoll in Queen-street; Purchase did strike him; Clarke struck Driscoll at the corner betwixt Queen and George streets; Driscoll was half way down—he was falling—when Clarke kicked him on the body.
By Inspector Lewis: I never met any of the three prisoners previous to that night; I never had any quarrel with any of the prisoners before the assault at the bank; during the time the assault was going on there was no other person but the prisoners, Driscoll, and myself on the footpath at the bank corner; if there were other spectators they were off the footpath—in the street; there were other persons in the street, but not on the footway; the three prisoners rushed together at me and Driscoll; I did not see any of the prisoners in the crowd at the St Patrick’s Tavern when the men squared at Driscoll and myself; if it is in the deposition that I said I did it is a mistake.
William Sloss, pastrycook, having a shop at the corner of George and Queen streets, deposed as follows: I know the prisoner John Cockerell; I do not know either of the other prisoners by sight; about midnight on Saturday, 14 September instant, I was standing in front of the counter of my shop, when I heard a rush as of a number of people towards the shop door, which was struck a number of blows; I ran forward and pushed the person off the step of the door; I did not then recognise Woods (the previous witness) as one of the persons that were there; I did not recognise the prisoners then; after the persons were pushed off the doorstep they rushed further down the street; there were about thirty persons present; the door they rushed from was in George-street; I did not leave the step at my own door until some of the crowd returned, and by the light shining from the shop and the moonlight, I recognised John Cockerell in the crowd; I heard no expression made use of; the crowd rushed from the door in the direction of the Ipswich Boarding-house; they did not go far down the street.
Cross-examined by Mr Blakeney: I have known Cockerell by sight for the last four or five years; I did not recognise any other person in the crowd; I do not know there were other people passing up or down the street at the time; I saw the crowd of thirty people because they rushed to my door and drew my attention; I did not see any others; I don’t know, I will not say there were or that there were not others; I remained at my door about ten minutes after the crowd passed across to the Bank of New South Wales; during that ten minutes I don’t recollect seeing any person pass up the street; I saw a policeman pass; I will not swear others did not pass.
Thomas McKinley, assistant to Mr John Hicks, Albert-street, deposed: About midnight on the 14th instant I went into the European Hotel to have a drink; as I was going into the hotel I met the prisoners Cockerell and Purchase; there was another man with them, but I did not notice his appearance; while I was in the hotel I heard Cockerell growling outside about something, but I did not hear the words he made use of; when I came out of the hotel I saw Cockerell with some others—a good few together; they were going up Queen-street towards George-street; Cockerell had his coat off then; I saw Clarke, who said to Cockerell, “Put on your coat, come home, and don’t get fighting;” when they got to the corner of Queen and George streets, Purchase went up to Woods and said, “What were you going to give me in charge for?” Woods said to Purchase, “You have made a mistake, you have taken us for some other parties;” there was another man with Woods at the time; he was a sandy-whiskered man, tall, and stout built; Cockerell then said to Purchase, “Hit him, and don’t get nagging at him;” the other man with Woods then struck a match to light his pipe; Cockerell blew the match out, and hit the man first, and then struck Woods; Cockerell then stepped back and repeated the blows; the other man (Wood’s [sic] companion) then went towards the Treasury, in George-street, when Cockerell hit him again; Woods went down Queen-street when Purchase hit him; Cockerell then hit Woods again, after Purchase; then Cockerell said “Where is that other —— gone to?”; the other man (Woods’ companion) then said, “D—n it, that is quite enough;” Cockerell then ran at him, and hit him three blows, and the man made two steps, and then fell down on his face; Cockerell then rushed over, in company with Purchase, to Woods, who was in the middle of Queen-street, and Woods ran towards Page’s corner, Cockerell and five or six others after him; Woods tripped Cockerell and knocked him down at the corner; Cockerell got up and ran Woods over into Sloss’, and then down to the Ipswich Boarding-house, where Woods managed to get in and slammed the door on them; Cockerell then sang out “Nanty,” meaning clear out, and they all went away; I did not see Clarke or Purchase do anything after I saw Purchase strike Woods; I did not see Clarke strike any blow; I, with the assistance of another person, picked up off the road the man who had been in Woods’ company, and was knocked down by Cockerell; we carried him over to the footpath at the Bank of New South Wales; I saw the police put the man into a cab afterwards.
Cross-examined by Mr Pring: I saw the prisoners and other opposite the Telegraph newspaper office; there might have been about a dozen of them; during the time of the assault at the corner of the bank of New South Wales, there was a mob present; they did not all assist Cockerell; Cockerell was the only one that assaulted Driscoll; none of the others in the crowd helped Cockerell to assault Driscoll; I could see everything that was done; if Clarke had kicked or hit Driscoll I would have seen it; if Purchase had hit Driscoll I would have seen it; Purchase did not hit Driscoll—he hit Woods; Purchase did not address himself to Driscoll when he said “What were you going to give me in charge for?” when Purchase addressed these words to Woods there were other persons present; persons might have been in the crowd without taking part in the row; when Clarke told Cockerell to Purchase his coat on Cockerell was a little excited; he was about half drunk; other people came up the street at the time.
By Inspector Lewis: At the time the assault took place on Driscoll at the corner of the street there were about twenty persons present; the crowd did not move about as the assault went on until Woods ran away; then about a dozen of them followed; neither Clarke nor Purchase could have struck or kicked Driscoll without my knowledge.
By the police-magistrate: During the assault Cockerell and Purchase were together in front of the crowd; Clarke was not with them; I don’t know where he was.
Joseph Gray, licensed cabman, residing in Mary-street, Brisbane, deposed: I remember about midnight of the 14th September instant; I was then on the cab-stand opposite the Bank of New South Wales, in George-street; about that time my attention was attracted by a row at the Bank of New South Wales; James Cuddihy was on the cab-stand at the time; I did not notice one from the other of those engaged in the row at the time; I look at the prisoners now before the court; after the first of the row I observed two men resembling Cockerell and Purchase; the man who resembled Cockerell struck Daniel Driscoll, whom I identified the following morning dead at the Brisbane Hospital; the blow staggered Driscoll, who was struck on the left side, under the heart; after striking Driscoll, the man resembling Cockerell rushed towards Woods; I cannot say that he chased Woods then; I was looking down Queen-street at the time; I next saw deceased lying on the ground, and the man resembling the prisoner Cockerell running after Woods across to Page’s, and then to Sloss’; there were over twenty persons present in the street at the time; I only noticed the person resembling Purchase by his talking; he said, “I don’t care if I am run in; I can pay the fine;” I did not see him doing anything; I sang out for the police, and it was then the man resembling Purchase made the reply; I only saw the one blow struck; the man who struck the blow had his coat and hat on.
Cross-examined by Mr Pring: When I heard the man resembling Purchase making the remark was after Woods the mob had run across the street, and most of them had come back to the Bank of New South Wales; I cannot swear that Purchase was the man who said, “I don’t care if I am run in;” I never saw Purchase before; I heard the man speak; it was a young man with no beard resembling Purchase; Cuddihy was not with his cab on the stand at the time of the row; I saw Cuddihy go across to the corner, and I saw him at the corner.
Cross-examined by Mr Blakeney: I was not there all the time; I went across when I saw the blow struck; Cuddihy, I think, was there all the time; he was sober.
James Cuddihy, recalled, resworn, and cross-examined by Mr Pring, deposed: I was at the cab-stand opposite the corner of the Bank of New South Wales, about midnight of the 14th instant, Joseph Gray was then with me; there was no other car or cab but Gray’s hansom and my car; a row took place; I did not know the witness Woods before that night; when the row commenced I was sitting on my car smoking, and Gray was standing beside his cab; I said to him, “Here’s a row, come on;” I went across to the Bank of New South Wales; when I went across to the corner of the bank to see the row, Gray was in the middle of George-street, standing a few feet from his cab; when I got to the bank I saw prisoner Cockerell strike Woods; when Cockerell struck Woods there was no one at the corner of the street but Woods, Driscoll (the deceased), and four men who came up the street; there were not eight or nine men; the four men who came up the street were the three prisoners now in the dock and another man; there was a row before I got off my car; the men in the dock and another now absent, Woods and his mate (Driscoll), were in the row; I saw Cockerell knock Woods down; Woods made off; Cockerell then turned round and knocked Driscoll down, the third time he followed Woods; I knew Cockerell before; I never saw the others before; I saw Clarke and Purchase hit and kick Driscoll; Clarke struck Driscoll on the right side; Purchase struck him on the right side; four of them struck him; the four kicked him down; I would know the fourth man if I saw him; other men came up afterwards; when I first went across to the corner Woods had been knocked down; I saw Cockerell knock him down; when Woods was knocked down the deceased (Driscoll) was sitting against the wall of the bank; when Woods got up he ran away; the deceased, after Woods ran away, said, “I will not run away;” the deceased man had not been struck when he said he would not run away; I saw him struck afterwards by Cockerell; he hit him the first blow on the ribs, under the right arm; he hit him again and knocked him down; the first blow staggered Driscoll, the second knocked him down; Driscoll got three falls on the footpath in Queen-street; I saw Driscoll struck in George-street by both Cockerell and Clarke; he was hit under the left arm knocked about five feet off the kerb on to the street; I saw Purchase hit deceased each time he fell; I saw all four men strike and kick deceased every time he fell; there were only the four men present who assaulted Driscoll and Woods; Gray, the cabman, and myself.
Cross-examined by Mr Blakeney: I saw Sloss, the pastry-cook, come to the corner when the row was over.
During the cross-examination of the witness Cuddihy, the court had to be cleared of the public, in consequence of the laughter caused by the witness’ answers and his manner of giving evidence.
Esram Martin, a baker, residing at Fortitude Valley, deposed: I remember midnight of the 14th September instant; I was standing about that time with a man named Riggle, at the St Patrick’s Tavern; I saw the three prisoners then; they came down from the direction of George-street; Purchase said they had been up the street and had given some cove a thumping; Purchase said he ran some cove into a house in George-street, and that the door was shut upon him; Cockerell then said that he hit one of them left and right, and then gave him his head and knocked him into the gutter, and said he broke three of the man’s ribs; Cockerell showed me and others his knuckles, which were skinned; Clarke did not say anything; there was no person with the three prisoners when they came up; the St Patrick’s Tavern had been shut at the time about a quarter of an hour; Purchase seemed to have liquor in him; the other two did not seem to have had any drink; they said they thumped the follows up at the top of the street.
Cross-examined by Mr Pring: Clarke could have heard what Purchase said; he made no reply.
At this stage of the case the prisoners were further remanded until Wednesday, the 25th instant (to-morrow). Mr Pring applied to have Clarke admitted to bail, and said that Mr Brown, who had employed him as gardener, was prepared to give him an excellent character. Inspector Lewis opposed the application until all the evidence in the case was taken. Bail refused.
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The Brisbane Courier, Thu 26 Sep 1878 5
CITY POLICE COURT.
WEDNESDAY, 25 SEPTEMBER.
BEFORE the police magistrate.
MANSLAUGHTER.—John [Thomas] Cockerell, James Clarke, and John Purchase, on remand, charged with the manslaughter of Daniel Driscoll on the night of September 14, were brought up and the case against them further proceeded with. Inspector Lewis conducted the examination; Mr Pring appeared for the prisoners Clarke and Purchase, and Mr Blakeney for the prisoner Cockerell.
Thomas Gray, bootmaker, George-street, stated that he knew the prisoner Cockerell; recollected the night of Saturday, the 14th instant; about midnight he heard a row outside his house, and went out to see what it was; on opening the door he heard a voice say, “We’ll burst the —– door open and murder the –—”; he then saw three men outside the Ipswich Boarding-house, who directly afterwards went over to the corner at the Bank of New South Wales; heard one of the men say “Look at my knuckles, they are covered with blood;” was not prepared to identify prisoners; had known Cockerell a number of years; saw no other row that night.
William Riddell, collar-maker, Spring Hill, deposed to seeing the prisoners at the St Patrick’s Tavern; they had come down the street; the prisoner Cockerell said, “See what we’ve got into; a cove wanted to give Purchase in charge, and struck a light to see who we were; I blew it out, and hit him with my right and left; I knocked him into the road, and broke three of his ribs; they got a cab and took him to the hospital;” prisoner showed witness his knuckles.
John Thomson, MB, resident-surgeon at the hospital, gave evidence as to the injuries inflicted on the man who was brought to the hospital by two policemen at five minutes to 1 o’clock on the morning of the 15th instant; the man was dead; only observed marks of violence on the head, and a little blood on one finger; in conjunction with Dr Mullen, afterwards made a post-mortem examination; the right side of the heart was in its normal condition, but the left side was diseased; the heart weighed 17oz, and was much enlarged, 12oz would have been the ordinary weight; the cause of deceased’s death was disease of the heart, accelerated, in his (witness’) opinion, by assault; the deceased might have lived for years; such a blow as that described by previous witnesses has been known to cause death when the heart was perfectly healthy. This closed the examination for the Crown. Mr Pring called R Brown for evidence as to the prisoner Clarke’s good character. The bench then committed each of the prisoners to stand his trial at the next criminal sittings of the Supreme Court, to be held on November 25. The prisoner Clarke was allowed bail, himself in £100, and two sureties of £50.
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The Brisbane Courier, Wed 27 Nov 1878 6
Tuesday, November 26.
Before his Honor Mr Justice Lutwyche, Acting Chief Justice.
John Thomas Cockerell, James Clark, and John Richard Purchase were indicted for having, on September 15 last, at Brisbane, wilfully murdered one Daniel Driscoll.
The Attorney-General, with Mr Rutledge, conducted the prosecution; Mr Swanwick appeared for the prisoner Cockerell; and Mr Pring, QC, with Mr Miller, for the prisoners Clarke and Purchase.
After the panel had been twice exhausted, a jury was sworn, and the Attorney-General having opened the case, called
Thomas Woods, who gave evidence to the effect that on Saturday September 14 last, he was lodging at the Ipswich boarding-house in George-street, Brisbane; the deceased, Daniel Driscoll, was living with him; went out for a walk with him on the evening of the 14th; went as far as Edwards and Chapman’s corner; in coming up Queen-street observed a crowd of people assembled in from of St Patrick’s Tavern; Driscoll said—“Gentlemen, give room and let us pass;” a man stepped forward and squared up to him; witness put his hand on to Driscoll’s shoulder, and told him to come along; a man came to the front and squared up to him; told him that if he struck him he would give him in charge to the first policeman that came along; two policemen came up; they went into the crowd and witness and deceased walked on up Queen-street to the European Hotel; went into the bar; it was then nearly 12 o’clock; it was a bright moonlight night; four men followed them up the street into the European Hotel; knew three of them—the prisoners at the bar; after having a drink, Driscoll and witness left the bar; the prisoners went out first by a side door into the right-of-way; deceased and witness went out by the same door, the front door being closed; saw the prisoners in the right-of-way; did not speak to them; Driscoll and witness went up Queen-street, leaving the prisoners in the right-of-way; went as far as the Bank of New South Wales, in front of which they stopped to have a smoke; while they were standing there smoking the prisoners came up from the direction of the European; did not see anyone with them; the prisoner Purchase said, “Here the b—–s are, let them have it;” Purchase and Cockerell struck at witness, and hit him on the nose, face, and chest, breaking the pipe in his mouth; tried to defend himself; the three prisoners then attacked the deceased; Cockerell and Purchase struck him over the face and body; deceased went round by the corner of the bank to get away into George-street; when he got there Cockerell struck at him right and left, hitting him on the left side near the heart, and knocking him down; he never got up again; did not see him fall more than once; they then left him, and rushed at witness, saying “Let him have it now;” they rushed him across to Page’s corner; Cockerell, who was leading, struck right and left at witness, who stopped his blows, and the former slipped and fell in the gutter; witness ran into Sloss’ confectionery shop on the other side of the street; Mr Sloss put him out, and the prisoners struck at him at the door; managed to get into the Ipswich boarding-house; they followed him down; when he got to the door they said—“Now we’ve got him, we’ll murder the b–—;” got inside, closed the door, and kept them out; stopped inside about three or four minutes; then went over to the Bank of New South Wales corner, and there saw Driscoll lying on the side-walk unconscious; two constables were with him; assisted the constables to put him into a cab, and they took him away; never saw Driscoll alive after that; saw his body the next morning in the dead-house at the hospital; before I went away from deceased the previous night I saw Cockerell strike him twice; before he went round into George-street he was struck, and fell with his back to the wall, but he gathered himself up and got round the corner.
Cross-examined by Mr SWANWICK: Had known Driscoll rather more than eighteen months; I had never seen him in a fit; he was perfectly sober on the night in question; could not swear that either of the three men who squared up to him and Driscoll at St Patrick’s Tavern were the prisoners; witness and Purchase did not have any angry words at the corner of Queen-street; Driscoll never struck at any of them; did not know Driscoll had disease of the heart; he was a sound man from all appearance; witness and deceased had only one drink together that night; he and witness were not together all that night. The witness was also further cross-examined by Mr Swanwick, as also by Mr Pring, but his evidence was not shaken in its main features. He stated that both Clark and Cockerell struck him; and that he saw Clark kick Driscoll when he was falling in Queen-street.
James Cuddihy, a cabman, gave evidence to the effect that on the night in question, at a few minutes to 12 o’clock, he was on the cab-stand opposite the Treasury, in George-street; Joseph Gray, the driver of a hansom cab, was also on the stand; saw the last witness and the deceased come up Queen-street, smoking; they stopped, leaning against the wall at the corner; while they were there, four men came up, three of them being the prisoners; knew Cockerell before; when they came up saw Cockerell strike Woods, and knock him down; the other three struck at him, too, and he had to run away; the other man stood his ground, and they knocked him down three times; Cockerell struck him, and he fell; he tried to get up, but they would not let him; and knocked him down again before he got on his feet; he tried to get up a second time, and scrambled round to George-street; before he got up Cockerell hit at him on the chest and landed him on the pavement; before that saw him struck by the other two prisoners and the fourth man in Queen-street; they struck him with their hands when he was standing, and with their feet when he was down; as he was scrambling round to George-street deceased said, “Won’t you let an Irishman scramble up?” in George-street Cockerell struck him on the left side; the deceased then fell, and never got up again; as Cockerell was hitting him the last time Clark said, “Let him have it;” some civilians lifted him up against the wall, but he could not sit; the police came up about ten minutes afterwards, and put him in witness’ car to take him to the lockup; after arriving there he was taken on to the hospital; on getting there the man was dead; believed he was dead when he was put in the car.
The witness was also cross-examined at some length by Mr Swanwick and Mr Miller, but no additional facts were elicited.
Joseph Gray, driver of a hansom cab, gave corroborative evidence. He said that he saw a stout dark man, resembling Cockerell, strike Driscoll a very severe blow near the heart, and also heard a young fellow, something like Purchase, say he did not care if a constable came; but, in cross-examination, the witness said he could not swear to any of the prisoners.
The court adjourned, at a quarter-past 5 pm, until half-past 10 o’clock the following (this) morning.
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The Brisbane Courier, Thu 28 Nov 1878 7
WEDNESDAY, NOVEMBER 27.
Before his Honor Mr Justice Lutwyche, Acting Chief Justice.
The trial of John Thomas Cockerell, James Clark, and John Richard Purchase, indicted for having, on September 15 last, at Brisbane, wilfully murdered one Daniel Driscoll, was proceeded with.
The Attorney-General, with Mr Rutledge, conducted the prosecution; Mr Swanwick appeared for the prisoner Cockerell; and Mr Pring, QC, with Mr Miller, for the prisoners Clark and Purchase.
Thomas Mackinlay, a laborer, of Petrie-terrace, examined by the Attorney-General, gave evidence to the effect that at a few minutes to 12 o’clock on the night of the 14th September he went into the European Hotel, and there saw the two prisoners Cockerell and Purchase, with a third person whom he did not recognise; they were coming out of the hotel; also saw them outside; heard Clark say to Cockerell, “Put on your coat, come home, and don’t go fighting;” they went up the street, and witness went after them, on his way home; saw Purchase go up to Woods at the corner of George and Queen streets; he said, “What was you going to give me in charge for?” Woods said, “My friend, you have made a mistake, and taken us for other parties;” Cockerell said to Purchase, “Hit him, and don’t go nagging at him;” the man who was with Woods struck a match to light his pipe with; Cockerell blew it out, and struck him; he then hit Woods, and after stepping back repeated the blows to each; Driscoll got up from where he was sitting, and went towards the Treasury, when Cockerell hit him again; Woods was going down Queen-street when Cockerell hit him again, and said, “Where is that other b— gone?” Driscoll then said, “D— it, that is quite enough;” Cockerell ran at him, and hit him three blows; Driscoll took two steps, and fell in the middle of the road; Cockerell then went to Woods, who was in the middle of Queen-street, and hit him again; Cockerell and others then chased Woods to Page’s corner; Woods tripped up Cockerell, who got up and chased Woods over to Sloss’, and then to the Ipswich boarding-house, where Woods slammed the door on those who were after him; Cockerell then said “nanty,” meaning “clear away,” and they all left; then went back to Driscoll, and with the assistance of others lifted him up, and carried him over to the wall; he was insensible, and his face was covered with blood; about ten minutes afterwards the police came up and took him away in a cab.
In cross-examination this witness stated that the police did not put Driscoll into the car gently; they took him by the arms and legs and put him in at the back of the car, and then sat him up on the seat; there were about twenty persons present looking at the row; saw Clark at the beginning of the row, and he was then standing in the crowd, the same as witness; if Clark had kicked or struck Driscoll witness must have seen him; if Purchase had struck Driscoll must have seen him also; Driscoll was not, so far as witness saw, knocked down more than once.
William Sloss, pastrycook, carrying on business at the corner of Queen and George streets, corroborated the evidence of Woods as to several people rushing into his shop on the night in question, and to his pushing them out. The crowd, after going a few doors lower down George-street, returned, and amongst the people witness recognised Cockerell, whom he had known by sight for almost five years.
Ezra Martin, a vanman, living at Fortitude Valley, stated that he knew the prisoners, and saw all of them in front of the St Patrick’s Tavern about midnight on September 14; they came down the street; Cockerell said, “Look at the good thing we got into; we had a row with some coves up at the corner; it is not often I get into it, but when I do I am a demon at it;” he showed me his knuckles, which were skinned; he also said, “The cove was going to give Purchase in charge, and I gave him my left and my right, and then my head, and then knocked the b—– into the gutter;” he also said, “I know I broke three of his ribs, and they took him to the infirmary;” Purchase said, “I fastened to one of them, and he ran away; he ran away and I followed him down George-street, and he ran into the Chinaman’s.”
William Riddle, a collar-maker, living in Charlotte-street, and who was in company with the last witness in the night in question, corroborated his evidence as to what Cockerell said, adding that the prisoner had said that one of the “coves” whom they had had a row with had, before he hit him, struck a light to see who Cockerell and the other prisoners were; he heard Purchase speaking, but did not notice what he said.
Constable John O’Donnell deposed to having seen the deceased at ten minutes past 12 on the night in question, lying on the pavement near the Bank of New South Wales; got him into a cab, and went to the watch-house for instructions; after staying about two minutes went on to the hospital; while on the way, and when opposite the exhibition grounds, he gave two sighs, and his head fell back on witness’ arm; saw his body the next morning in the dead-house at the hospital.
Dr Thomson, resident surgeon at the Brisbane Hospital, deposed that he remembered the last witness bringing a man to the hospital at about 5 minutes to 1 o’clock on the morning of the 15th September; the man was dead; he appeared to have been dead about half-an-hour; then examined the body; there was a bruise on the nose, blood had been flowing from one nostril, staining the beard and clothing; there were three or four blackened spots under the right eye, and there was a bruise upon one of the fingers of the right hand; about 8 o’clock the same morning made a post-mortem examination; he was a tall man, about 35 years of age; the body was well nourished and muscular; examined the brain; there was nothing wrong with that; from the examination, found that disease of the heart was the cause of death; the heart was enlarged; it weighed 17 oz; about 11 or 12 ozs would be the normal weight; the muscular tissue was firmer than usual, and all the cavities were empty; the valves on the left side were diseased; the emptiness of the cavities, witness thought, denoted spasms—that the death was sudden; the disease was valvular disease; in that state death would be caused by a sudden stoppage of the action of the heart; he might, under ordinary circumstances, have lived for years; a man of that kind would be more susceptible than another to any particular kind of accident or injury; any undue excitement might cause death; violence would be very likely to cause death; a severe blow on the body might cause fainting, from which he might recover, or death ensue; believe that, in this instance, death was accelerated by the excitement and the injuries he received; if the man had remained without any undue excitement or injury he might have lived for an indefinite time; a violent blow on the chest upon a man in the same state as the deceased would very probably have killed him; having heard the evidence that he received one or more blows, witness’ opinion was that those blows caused his death.
Cross-examined by Mr SWANWICK: The man might have died in a fit, but he thought the injuries received were sufficient to account for the fit; there were no marks of injury on the body; believed any undue excitement or great fright might have caused death.
Cross-examined by Mr PRING: Except on the face, there were no signs of excessive violence; did not see any signs of violence sufficient to cause death; it was witness’ opinion that, from what he had heard, death was accelerated by the blows he received, and not from any other means.
This closed the case for the Crown.
Sarah Hurley, called on behalf of the prisoner Cockerell, stated that she kept a boarding-house at the corner of Margaret-street; a man named Daniel Driscoll some time ago boarded with her for some months; he got his money every second Saturday; he used to get drunk sometimes; did not see him have fits; deceased was sometimes drunk from Saturday to Monday.
Sergeant Doyle, watchhouse-keeper, deposed that he knew a man named Daniel Driscoll, a carpenter, and that he had locked him up several times; he was several times fined for drunkenness.
Cross-examined by the ATTORNEY-GENERAL: He was sometimes brought up at intervals of six months, sometimes of twelve months; he was a very quiet man both when sober and drunk.
Robert Leggatt, a sawyer, gave evidence to the effect that he knew Cockerell, and had seen the other prisoners before; remembered seeing them brought out of the cell at the Police Court some time in last September; also saw Cuddihy that day; the first time he recognised Cockerell, but not the other two; the prisoners were taken back to their cell, and made to put their hats on; Cuddihy said the man who hit Driscoll last was something heavier than Clark, but that he could not see him there.
Cross-examined by the ATTORNEY-GENERAL: Cuddihy identified Cockerell and Purchase, but was not sure about Clark; he said he wanted a fourth man, somewhat stouter than Clark, who struck the last blow.
Joseph Linden was also called by Mr Swanwick, but did not appear.
This closed the case in Cockerell’s defence.
Mr PRING, who did not call any witnesses on behalf of the prisoners Clark and Purchase, proceeded, at the request of the counsel for Cockerell, to address the court first. He said that in order to convict the three prisoners of murder, the jury must be satisfied that they had acted in concert, and, with a common design to do that act which they had been charged with doing. In order to convict the prisoners of murder, it must be shown that they had a common design to commit a felony, and that in the execution of that design they killed their victim. But if a man intended to commit a misdemeanor, and committed murder, then he was guilty of manslaughter. If the prisoners went up the street with a fixed purpose of punishing Woods or Driscoll for some imaginary grievance, the evidence showed that they could not have had a common intention of committing a felony, because there was no evidence to show that “grievous bodily harm” was done to Driscoll, the immediate cause of whose death was heart disease. For grievous bodily harm to be inflicted there must be a wounding, and in the present case there had been no wounding. He therefore contended that the charge was entirely removed from that of murder, and reduced itself to that of manslaughter. On this latter charge he maintained that Purchase could not be convicted, because there was not evidence to show that the blow which had caused Driscoll’s death had been inflicted by Purchase; and that, in reality, Purchase had not struck a blow at all. As to Clark, he affirmed that the prisoner had nothing to do with the matter, and that, on the contrary, he had acted the part and in endeavouring to get Cockerell away.
Mr SWANWICK, then addressed the jury on behalf of the prisoner Cockerell. He stated that he was laboring under considerable difficulty in having had the case put into his hands at the last minute; denied that his client, who had been in the habit of earning his living by fishing, and who had a wife and family dependent upon him, could be justly termed a larrikin, as had been done when the matter was being discussed in the public newspapers shortly after the row took place; and contended that there was nothing to show that there had been any ill-feeling between him and the prisoner, or that he had been actuated by malice in any way. He commented on what he considered several inconsistencies in the evidence, and maintained that there was really no evidence showing that any blow struck by Cockerell was the cause of Driscoll’s death. He contended that if there had been a row Driscoll had, by striking a match and holding it in Cockerell’s face, been as much a party to it as anyone, and concluded by calling the attention of the jury to the consequences which hung upon their verdict, and asking them, should they have the least doubt in their minds, to give his client the benefit of it.
The ATTORNEY-GENERAL, in addressing the jury on behalf of the Crown, reminded them that they were sworn to give a verdict according to the evidence, and urged upon them the importance of their not permitting themselves to be influenced by any extraneous matter which counsel might have sought to introduce into the case. In reviewing the evidence, he acknowledged that it contained a few apparent discrepancies, but these he looked upon as only natural, and showing that the witnesses were telling the truth. He argues that the evidence clearly showed that the three prisoners had acted in concert, and were consequently all equally responsible. Cockerell’s own language in boasting of what he had done to Driscoll showed that there had been an intention to inflict grievous bodily harm.
At the conclusion of the Attorney-General’s address, at a quarter-past 6 o’clock, the court adjourned until 10 o’clock the following (this) morning.
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The Brisbane Courier, Fri 29 Nov 1878 8
THURSDAY, NOVEMBER 28.
BEFORE his Honor Mr Justice Lutwyche, Acting Chief Justice.
The trial of John Thomas Cockerell, James Clark, and John Richard Purchase, indicted for having, on September 15 last, at Brisbane, wilfully murdered one Daniel Driscoll, was proceeded with.
The Attorney-General, with Mr Rutledge, conducted the prosecution; Mr Swanwick appeared for the prisoner Cockerell; and Mr Pring, QC, with Mr Miller, for the prisoners Clark and Purchase.
Jury: Messrs W Randle, Jas Dawes, Thos Copp, Samuel Irish, Henry Moss, Thomas Melrose, James Edwards, Walter Barton, Alfred Reedman, Eli Clothier, FW Smith, and HG Costin.
HIS HONOR in summing up to the jury, told them that they were to say whether the charge laid in the information was made out to their satisfaction, or whether they thought that the homicide was of a less grave character—viz, manslaughter; or whether they thought that the prisoners were not guilty of either offence, murder or manslaughter. He proposed in this case, as far as he could, to adopt a practice that had been introduced in the trial of Civil cases by the Judicature Act. Formerly, when there was an action tried between party and party, the Judge, in summing up, put questions to the jury, but they were not bound to answer those questions. But the Judicature Act contained a great improvement in this respect, perhaps the greatest improvement that the Act contained. The Judge now put certain questions to the jury; they found the facts; and the Judge directed the verdict to be entered according to law. That alteration had not yet been made in the criminal code; but as a new criminal code was now before a Royal Commission at home, there was every probability of the change being made before any great length of time. In this case he proposed to put to the jury four questions on matters of fact, and he would be glad if they favored him with answers to them. They would not be obliged to do so, but if they found answers to these four questions he would tell them what ought to be their verdict on those findings. These questions were:—
1. What was the immediate cause of the death of the deceased, Daniel Driscoll?
2. Was this death hastened by any act of the three prisoners, or of any one or two of them; and if so, which prisoner or prisoners?
3. Did the three prisoners, or any one or two of them cause grievous bodily harm to the deceased; and if so, which prisoner or prisoners?
4. Was such grievous bodily harm caused with intent to do grievous bodily harm; and if so, which prisoner or prisoners had such intent to do grievous bodily harm; and if so, which prisoner or prisoners had such intent?
With regard to the first question, he said the jury had the advantage of the testimony of Dr Thomson, and they were bound to pay great deference to his opinion. If he gave it as his opinion that death was caused in a particular way, the jury were bound to defer to it; and they were not, unless they saw other circumstances which would lead them to do so, to take mere suggestions as to other possible causes of death. After reading the evidence of Dr Thomson bearing on this point, his Honor said he thought the jury, as reasonable men, after having heard testimony of that kind, could, unless they saw evidence to the contrary, come to no other conclusion than that the immediate cause of the death of the deceased was disease of the heart. The second question his Honor said he had put to meet an argument raised on the previous day, but to which he could not assent. It had been contended, that unless death was caused by the act of the three prisoners, or any of them, which occasioned grievous bodily harm, they could not be found guilty. He considered that if they did any act being unlawful, whether misdemeanor or felony, and death was the consequence, though not immediately, one or more of them would be guilty of manslaughter; and the jury were to consider whether the action of the prisoners, or any of them, did lead to the death of the deceased. It was quite sufficient to bring home a crime of manslaughter for it to be shown that a person who was diseased had had his life shortened by any unlawful act of any other person. If the man who did that unlawful act knew at the time that the person whom he attacked was suffering from a mortal disease, and he assaulted him, he would be guilty of murder; but he (his Honor) might as well say openly and at once that he saw no evidence in this case which would bring home that charge to the prisoners or any of them. It appeared that they met as strangers in the street, where the assault was committed; and unless the jury answered the third and fourth questions both in the affirmative, their verdict could not be a verdict of guilty of murder. If, however, they thought that the proximate cause of death was, as Dr Thomson said, the blow which Cockerell gave the deceased—if they were of opinion that the assault made by Cockerell was a premeditated assault, and was premeditated by the other two prisoners, or one of them, they would be as guilty as the man who actually struck the blow; or if they were acting with Cockerell with the view of beating Driscoll severely, and assisted him in so doing either by keeping close to him and warding off the attacks of other persons who might try to assist the man assaulted, or by actively participating in the assault, they would be as guilty as the man who struck the fatal blow. On that question there was a good deal of testimony, and some of it was conflicting; and the evidence was conflicting which was given on the part of the Crown. If the jury could not reconcile the conflicting testimony of the witnesses for the Crown on the material points, the safe rule to adopt was to give their verdict in favor of the prisoners. In framing the third question his Honor had employed the words used in the 15th section of the Offences Against the Person Act of 1865. Upon this question—Did the three prisoners, or any of them, cause grievous bodily harm to the deceased; and if so, which prisoner or prisoners?— his Honor thought the jury could have very little or no doubt, after hearing the testimony of Dr Thomson, that grievous bodily harm was inflicted. There was no legal definition of the words “grievous bodily harm;” but when a man received in his body such harm as led to his death, he thought the jury could have no doubt that harm was grievous bodily harm. If they thought that grievous bodily harm was caused by the act of any one of the prisoners, and that the other two prisoners, or any one of them, aided and abetted the man who actually inflicted that grievous bodily harm, they would be equally guilty with him. Regarding the fourth question—Was such grievous bodily harm caused with intent to do grievous bodily harm; and, if so, which prisoner or prisoners had such intent?—his Honor said that if the jury should be able, without a reasonable doubt, to come to the conclusion that the blow which was the proximate cause of the death of deceased was inflicted with an intent to do grievous bodily harm, the man who inflicted the blow would be guilty of murder, and the man or men who aided and abetted him would also be guilty of murder if they had such intent. If, however, they thought that the prisoners merely intended, before the assault took place, to give the deceased what was called a good thrashing, and no more, such a state of facts would negative the intent to do grievous bodily harm, and they would be guilty only of manslaughter. And his Honor was bound here to say that he could not see himself in the evidence anything that would lead his mind to a conviction that any of the prisoners had such an intent; but that was for the jury to say. The Attorney-General had contended that the expressions which were made use of by the prisoner Cockerell after Driscoll had been taken away to the hospital showed the intent he had at the time the assault was committed; but his Honor confessed he could not see his way to such a conclusion as that. Cockerell was flushed with his recent victory over a man apparently much bigger than himself, and he boasted—as his Honor was sorry to say all young Australians were only too fond of doing (it was a very bad habit)—of his prowess, and in harsh terms of what he had done. But unless the jury could find other evidence in the case to induce them to form that opinion, he did not think they could come to the conclusion that Cockerell intended to kill Driscoll, or do him such grievous bodily harm as would lead to that result. His Honor then proceeded to read over the evidence at length, and concluded by submitting to the jury the questions given above.
The jury retired at 11.37 am after an absence of a little over an hour’s duration returned into court with their answers as follows:—
1. What was the immediate cause of the death of the deceased Daniel Driscoll? Answer: Disease of the heart.
2. Was his death hastened by any act of the three prisoners, or any one or two of them; and if so, which prisoner or prisoners?—Answer: Yes, by Cockerell and Purchase.
3. Did the three prisoners, or any one or two of them, cause grievous bodily harm to the deceased; and, if so, which prisoner or prisoners? Answer: Yes; Cockerell and Purchase.
4. Was such grievous bodily harm caused with intent to do grievous bodily harm; and, if so, which prisoner or prisoners had such intent?—Answer: No.
The jury then, on the recommendation of his Honor, found a verdict of”Not guilty” against Clark, and of “Guilty of manslaughter” against Cockerell and Purchase, strongly recommending the latter to mercy on account of his youth.
Clark was accordingly discharged, and the passing of sentence upon the other two prisoners was reserved till this morning.
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The Brisbane Courier, Sat 30 Nov 1878 9
FRIDAY, NOVEMBER 29.
BEFORE his Honor Mr Justice Lutwyche, Acting Chief Justice.
John Thomas Cockerell, and John Richard Purchase, indicted for having, on September 15 last at Brisbane, wilfully murdered one Daniel Driscoll, and found guilty on the previous day of manslaughter, were brought up for sentence.
The Attorney-General, with Mr Rutledge, conducted the prosecution; Mr Swanwick appeared for the prisoner Cockerell; and Mr Pring, QC, with Mr Miller, for the prisoner Purchase.
Mr Pring, on behalf of the prisoner Purchase, called the following evidence as to character:—
Sergeant Richard Barry, stationed at South Brisbane, stated that he had known Purchase for the last thirteen years; always believed him to be a quiet boy during the whole of that time.
Alderman D Sinclair deposed that he had known Purchase thirteen or fourteen years; to the best of his knowledge he had always borne a good character—quiet and well-behaved.
William Eldridge stated that the prisoner had been in his employ for two years, up to the present time; he was always very obliging and quiet, and not at all quarrelsome.
Joseph Sanders, a builder, had also known the prisoner about six years; he had borne a generally good character; never heard of his being quarrelsome.
Lawrence Cunningham, bootmaker, had known the prisoner about six years, and had never known anything wrong of him.
The prisoner Cockerell called the following evidence:—
Augustus Mark Church had known Cockerell for about eight years; by hearsay he knew him to have been a bit wild, but he was honest; for the last three years had known little about him; had not known anything to his disadvantage.
Thomas Copp had known him for the past two or three years, and had never heard anything bad about him.
George Watson, plumber, had known the prisoner for the last six years or so, and he also had never heard anything bad about him.
Thomas Scanlan had known the prisoner for about twelve years, and had never heard anything wrong of him, except that he had the name of being a little rowdy; thought he had been quieter the past three years.
James Whitred had always known the prisoner to be a hard working man, and had never known anything against him, except when he had a drop of drink in him.
Detective Anderson had known Cockerell for about six years; he had borne a very indifferent character, but had been something better during the past three years; he bore the reputation of being rather rowdy, although witness had never personally seen him in any disturbance; had never seen him insult or interfere with anyone.
The prisoner Cockerell, on being asked the usual question as to whether he had anything to say why sentence should not be passed upon him stated that, on the night in question, he and his fellow-prisoners were on their way home when they saw Woods and Driscoll at the Bank of New South Wales corner. Purchase, who was under the influence of liquor, either by accident or intentionally, stumbled against Driscoll. Clark then said, “Get Jack away, or he will be locked up.” Driscoll had a lighted match, and threw it into Cockerell’s face, whether intentionally or not he did now know; and he struck the deceased three times. He solemnly declared that neither Clark nor Purchase struck Driscoll, and he (Cockerell) alone was guilty. He acknowledged that, up to within the past three years, he had been a little rowdy, but since he had been married he had to keep himself quiet. He had a wife and two children, one of whom was ill, and they had now nothing to depend upon for their support. He concluded by throwing himself upon the mercy of the court.
The prisoner Purchase declared that he was innocent of the crime with which he was charged, and said neither he nor his fellow-prisoners had known deceased before, so that there was no malice in the matter.
HIS HONOR, in passing sentence, said: John Thomas Cockerell, you have been found guilty of manslaughter, and I entirely agree with the whole of the verdict of the jury, both as regards the finding they have returned in respect of you and Purchase, and also with respect to your late fellow-prisoner, Clark. They have found, I believe correctly, that you did not intend to do the unhappy man, who had gone to his last account through your means, any bodily harm—any grievous bodily harm. If they had found a verdict to that effect, you would have been found guilty of murder, and you would certainly have been hanged. But I entirely agree with them in thinking you did not intend to do him grievous bodily harm; that you meant simply to give him what is called a good thrashing. You say you did so upon provocation, of which we have heard nothing before, and which none of the witnesses could have spoken to even if it had existed. But supposing your statement to be true, the savage manner in which you assaulted him reduced that provocation to a matter of very slight account indeed. Surely you might have borne for a moment the slight pain inflicted by the spark from a lighted match without resorting to such extreme violence, especially with a man whom you must have seen was not able to cope with you. He had not the skill, and did not show a disposition, to return the blows. Your attack was savage, and shows a depraved disposition. The punishment for manslaughter, which has been provided by the Legislature, as contained in the 4th section of the Offences Against the Person Act of 1865, which is that “Whosoever shall be convicted of manslaughter shall be liable at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, or to pay such fine as the court shall award, in addition to or without any such other discretionary punishment as aforesaid.” The discretion of the court would be regulated by the circumstances of the case alone, were it not that the Legislature itself seems to have fixed a limit to that discretion when the proximate cause of death was not occasioned with intent to cause grievous bodily harm. In the 17th section of the same Act the Legislature has provided that “Whosoever shall unlawfully or maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable at the discretion of the court to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor. It seems to me, therefore, that my discretion has been limited by that provision in the Act; but I shall certainly feel it my duty to go to the full length of that limit, and the sentence of the court is that for the offence of which you have been convicted you be kept in penal servitude for three years. As for you, Purchase, the jury strongly recommended you to mercy on account of your youth. I am always disposed to pay the greatest attention to the recommendations of an intelligent jury, and I shall give full effect to their recommendation in this case, especially as you have received a good character from several persons who have known you for a long time. I cannot believe your statement with regard to your not having struck the deceased, or aided and assisted Cockerell while he was assaulting the unfortunate man Driscoll. but in the hope—the earnest hope—that you may amend your ways, and not get into bad company, and never permit yourself to be tempted to commit such an act again, I shall pass on you a very much lighter sentence than I have passed upon Cockerell. The sentence of the court upon you, Purchase, is that you be imprisoned and kept to hard labor in Brisbane Gaol for twelve calendar months.
1 The Brisbane Courier, Fri 3 May 1878, p. 3. Emphasis added.
2 The Brisbane Courier, Sat 4 May 1878, p. 6.
3 The Brisbane Courier, Tue 17 Sep 1878, p. 3. Emphasis added.
4 The Brisbane Courier, Tue 24 Sep 1878, p. 3. Emphasis added.
5 The Brisbane Courier, Thu 26 Sep 1878, p. 3. Emphasis added.
6 The Brisbane Courier, Wed 27 Nov 1878, p. 5. Emphasis added.
7 The Brisbane Courier, Thu 28 Nov 1878, p. 3. Emphasis added.
8 The Brisbane Courier, Fri 29 Nov 1878, p. 3.
9 The Brisbane Courier, Sat 30 Nov 1878, p. 5. Emphasis added.