The Sydney Morning Herald, Saturday 24 November 1900
THE BREELONG TRAGEDY. TRIAL OF JIMMY GOVERNOR. THE CASE FOR THE ACCUSED. VERDICT OF GUILTY. JIMMY GOVERNOR SENTENCED TO DEATH.
The trial of the aboriginal, Jimmy Governor, on a charge that he did at Breelong on July 20 last feloniously and maliciously murder Helen Josephine Kerr, was continued at the Darlinghurst Old Court yesterday before Mr. Justice Owen and a jury of 12.
Mr. G. G. Wade, Crown Prosecutor (instructed by the Crown Solicitor), conducted the case for the Crown ; Mr. F. S. Boyce (instructed by Messrs. Lane and Roberts), was the counsel assigned by the Crown for the defence.
The prisoner had pleaded not guilty (on the facts).
When the Court rose on the previous (the first) day of the trial, the Crown case had closed.
CROWN WITNESSES RECALLED.
At the request of Mr. Boyce, John Thomas Mawbey was recalled. In answer to Mr. Boyce he said he did not know whether anything was stolen from his house. He had not looked.
Did you look round the house ?- I did.
Was there anything to lead you to believe that other blacks had been about ?-Yes, I saw other
tracks about.
To Mr. Wade: Blacks used to hunt opposums about the place. It was on the Sunday that the strange tracks were noticed.
Constable Berry, recalled by Mr. Wade, said that when he was following the tracks as previously des- cribed by him, he saw two tracks of persons going from the camp towards Mawbey's, and the same two tracks going back towards the camp. That was in the grey dawn of the Saturday morning.
A juror : Did you see tracks of two men only ? Yes, of two only.
Mr. Boyce : If there was a woman there you would find some difficulty in tracking her ? No, not if she wore boots. I could not say whether any other tracks were about the house, because I did not
look for them.
OPENING THE ACCUSED'S CASE.
Mr. Boyce : Your Honor, the accused desires to hand a statement to the associate to be read. He cannot read well.
The Judge : Very well.
Mr. Wade : If he can write a statement he can read one, and the law is that he may not put his evidence in writing if he can give it orally.
The Judge (with an authority before him) said that the Full Court had laid it down that in their opinion the statement of a prisoner must be given orally if it could. In view of that opinion he
could not admit the statement.
Mr. Boyce : I am surprised at the Crown taking such a technical point.
The Judge : It is not a technical point ; it is the law. Such a statement might have a prejudicial effect on the mind of the jury. The Crown has not taken a technical point, but has simply pointed out to me what the law is.
Mr. Boyce : The law in England is such that your Honor has power to admit the statement. This is a case of life and death, and surely in this case where the man cannot read English and desires to make a long statement of fact be ought to be allowed to do so.
The Judge : There is no doubt good reason for the law. I do not even know who wrote this state- ment. It may not have been written by the prisoner. It may be a document carefully prepared by a solicitor and containing ingenious argument. This man can speak good English -as good as anyone in the Court - and if he can reduce a statement to writing he can surely speak it.
The prisoner rose to speak.
The Judge : I would have liked this statement to be taken by a shorthand writer. However, we
must go on.
STATEMENT BY THE ACCUSED.
Accused said : Me and my missus had some words about the Mawbeys at the camp, and I said, "Drop it, don't tell me no more of it, I don't want to hear any more of that." So she said to me, " They rub it in , they do as they like with you." I said to her, " You come down and I will see about it." So we got ready and made off - me and my wife, Joe, and Jacky Underwood. I was going down for some flour and a bag of sugar. I went down first to Mr. Mawbeys. They were in bed. so I sung out to Mr. Mawbey, " Is Mr. Mawbey in bed ?" Mr. Mawbey said, "Yes Jimmy, we're just about turning in." So he came out. I said, " Please, Mr. Mawbey, I want a bag of flour up in the morning and a bag of sugar. " He said, " All right, Jimmy ; I will send them up in the morning or some time to-morrow." He asked me inside. I said, " No, it is getting late I must got back. " He said, "Good-night, Jimmy," I said, " Good- night, Mr. Mawbey. "
So I came back to where my brother and my wife were I said to my wife, " I am going to see Mrs. Mawbey about those words she has been saying, I'll make her mind what she is talking about. I'll take her to Court if she does not mind herself."
I went up to the house. I said, " Are you in, Mrs. Mawbey? Did you tell, my missus that any white woman who married a blackfellow ought to be shot ? Did you ask my wife about our private busi- ness ? Did you ask her what sort of nature did I have-black or white ? ''
With that Mrs. MawbEy and Miss Kerz turned round and laughed at me with a sneering laugh, and before I got the words out of my mouth that I said in court I struck Mrs. Mawbey on the mouth with this nullah-nullah.
Miss Kerz said, " Pooh, you black rubbish, you want shooting for marrying a white woman." With that I hit her with my hand on the jaw, and I knocked her down. Then I got out of temper and got hammering them, and lost control of myself. I do not remember anything after that.
The Judge : Is that all you want to say ?
The accused : After that I went to camp. All this bushranging business that we were talking about we all agreed to. It was not all true that we were going to do it. We wanted to get my missus out of the road. We made it up that Joe was not to be there, nor my missus. I had a great name as a smart man and all that, so when we did this they would know I was the man. But it was not true I was the main man. Away we went that night and we camped in the bush. We parted in the morning.
Accused resumed his seat.
Mr. Boyce intimated that he had no witnesses to call. He asked accused if he had anything more to say, and Governor added : "I am speaking straight from my heart, and I am afraid of nobody."
COUNSELS' ADDRESSES.
Mr. Boyce addressed the jury for the defence. He said the jury could not have helped reading the sensational accounts served up of the tragedy, but he hoped they would succeed in putting aside all thoughts of the public clamour for vengeance on this particular black. Had the jury ever thought that perhaps after all this man was not so bad ? Had they ever reflected how it was that this calm and quiet mannered man suddenly became a raving demon. The man, they must remember, was not being charged for the murders in the bush, of which they had all heard, but of the murder of Miss Kerz. Now the theory of the defence was that the man had acted in a frenzy of temper in the case of Miss Kerz, and the law mercifully said that in certain cases where provocation was given to the accused by the deceased, and such provocation was intentional and of a nature reasonably calculated to rob a person of self control, and really did have that effect, the killing would be manslaughter.
Here was a man of no high feeling or high sentiment, a rover under the roof of Heaven, a man who by his environment and nature had not learned to control himself as other men had. Could we, who had neglected, despised, and taunted the aboriginals, expect them to exercise the ordinary human control. This particular man had taken a white wife. He was a man of sensitive nature - a better man than most blacks, because he worked when he could get work - and the taunts hurled at his wife were doubly felt by him.
The jury could picture the white wife of a blackfellow knowing [kneeling] in the camp and praying " O Lord take me away from here, I cannot stand what these women are saying." The husband had seen that and there was then sown the seed of which the harvest was that terrible night.
Jimmy Governor denied that the object of the men was bushranging, and could not that statement be credited when it was remembered that the men went armed not with guns but with sticks, and they stole nothing.
No motive was suggested by the Crown for the murders, because it was clear there was no motive - it was the outcome of sudden passion. Jimmy used to play cricket with the children of the Mawbey family, and so it was apparent that the two families were in friendly relations. If the idea of wholesale slaughter was in Jimmy Governor's mind, why did he not start by sacrificing Mawbey when he found him alone and unarmed ?
The answer was that the sudden passion was not there ; that having no intention to commit murder, the idea never entered his head in preconceived form. His intention was to " take Mrs. Mawbey to the court if she did not watch herself." He went to the house for that purpose, and it could not be supposed that he suddenly became a raging lunatic for nothing. Mrs. Mawbey and Miss Kerz wheeled round on him and laughed and sneered, and Miss Kerz said, " Pooh, you black rubbish, you ought to be shot for marrying a white woman." That was the turning point, when those words were spoken to him the sudden passion rose and that was the last of self-control.
The savage heart, tainted with the thirst of blood, burst through reason and one of the foullest of crimes was committed. The man's mate seemed also to have lost his reason. Was it not corroborative of the accused's statement about the sneering remarks that Mrs. Mawbey on her death bed referred to the " black rubbish."
The statement of Miss Kerz touched Jimmy Governor on two spots which were susceptible-that of his colour and that of his wife. There could be no question of robbery , there was no suspicion of money being in the house, so the motive of robbery and bushranging was out of the question.
There could be no such motive as revenge, else why did he kill the little children ? Could he have wanted revenge on them ? And on the other hand, if revenge were the motive why did he not wreak it upon Mr. Mawbey.
Then, again, let them think of the weapons used. Jimmy Governor had been a tracker in the police force, and was a cunning man in many respects. Would such a man, starting out with the diabolical intention of killing eight or nine people, arm himself with a stick ? There was a tomahawk there, but other blacks were also there. Percy Mawbey was killed by a tomakawk, and Jacky Underwood had killed Percy Mawbey. Miss Kerz was killed by a stick, and she was killed by Jimmy Governor.
There would be in the minds of the jury cases where men had been convicted of manslaughter though half-an-hour elapsed between the time of the provocation and the killing. Here in this case the whole of the event was completed at once-in one burst of temper.
That the Crown had selected the death of Miss Kerz upon which to try Jimmy Governor for his life was perhaps fortunate for the accused. If the death of Mrs O'Brien or of the children had been the subject of the trial, perhaps nothing could have been said against the charge, but in the death of Miss Kerz there was abundant evidence of high provocation, and of unreasoning passion.
Mr. Wade said the law was that if a man were provoked and angry, and in anger or passion took a fellow creature's life, that was murder, unless the man proved that when the blow was struck it was not struck with the intention of taking life.
If Governor had stopped short at the first blow the case might have been different, but it was shown that after he first struck Miss Kerz she ran 100 yards, and Governor, with a murderous implement in his hand, pursued her and beat ber head in.
The case of a blackfellow could not be regarded in any different light from that of a white man no matter that his habits of life differed.
The Crown admitted all through that there was ill feeling between the families, and contended that the murder was done as an act of revenge.The reason why the children also were murdered was to clear out the house of all witnesses. The evidence showed that the accused had been taunted by his mates, and told that he had no courage as a bushranger and those taunts no doubt helped him to arrive at the determination to obtain revenge on the Mawbeys.
The accused's statements had differed in material points on the several occasions on which he had made them.
He (Mr. Wade) proceeded to review the evidence and deduced from it that the two blacks had premeditated an expedition to first ascertain whether, Mr. Mawbey was away from home and if so then to murder Mrs. Mawbey and Miss Kerz and also, in order to remove evidence, everyone in the new house.
Supposing it could be believed that Jimmy Governor merely went down to remonstrate with the Mawbeys, then why did he go with Jacky Underwood, why was Jacky armed with an axe, why did he go into the house, and why did they chase the people out of the house, and kill them outside ? They had to remember the evidence of one of the boys, which was that Jimmy Governor had said to Jacky Underwood, "Go it, Jacky dash their brains out."
Surely no one would say that was anything but intentional murder then again there was the remark of one of the men, " There's another somewhere" That again showed the premeditated plan of killing everyone in the house.
THE SUMMING UP
Mr. Justice Owen summed up. He said the counsel for the defence need have no fear that he had not done his duty by his client. The address which he gave to the jury and the way in which he had conducted the case throughout had been admirable. He had said everything that could be said and taken all points on behalf of his client. Now it was the duty of the jury to deal with the case which was placed before them.
No doubt learned counsel laboured under considerable difficulty from, probably, twofold causes - their peculiar circumstances of this case and the defence set up by the prisoner himself.
When the murder first took place a thrill of horror passed through the whole community, and the excitement was not limited to the time of the murders, but for weeks or months afterwards the excitement of the public was kept up in the tracing of the footsteps of those who were supposed to have committed the crime. In consequence the minds of the public were necessarily imbued to a very large extent with preconceived ideas of the persons who were ultimately arrested. Therefore it was a task which taxed the ingenuity of counsel to set the jury to view the case apart altogether from their prejudices.
The jury came there to try the case on the sworn evidence presented to them, and had no right to consider anything outside of that. It lay on the Crown to prove to the satisfaction of the jury that the prisoner was guilty of the crime with which he was charged.
Everyone was considered innocent until he was proved guilty, and even if the jury had preconceived opinions before they came to that court as to the guilt of the prisoner, if the Crown had left the case in doubt, the jury would be bound to give a verdict for the prisoner. But of course if the Crown had made out a case to the satisfaction of the jury they must return a verdict of guilty. The defence which had been set up had relieved him (the Judge) of a good deal of trouble in bringing before the jury all the points of the evidence to show tbat the accused struck the fatal blow.
It was admitted by the defence that the accused was the one who killed Miss Kerz. The defence was that he killed her by an unpremeditated act caused by taunts which she threw out against him and his wife and that, therefore, the act was manslaughter.
The section of the Act under which they could bring in a verdict of manslaughter contained three provisions which were necessary to be proved. He particularly wished to draw their attention to one of those provisions, which was "that the act causing death was done suddenly in the heat of passion caused by such provocation without intent to take life." The law presumed that when life was taken by a blow it was murder unless the prisoner could prove it was manslaughter. That meant that when a person had received grave provocation and struck a blow there and then - being roused by a taunt or blow or insult - and the blow caused death, but the person striking the blow had no intention to kill, but merely to strike by way of punishment, it would be manslaughter.
Now the jury had to decide whether the blow which the accused inflicted on Miss Kerz was intended to take life.
The Judge then briefly reviewed the evidence, and dwelt upon that part referring to the finding of the body at a distance from the house. Of the points taken by the counsel for the Crown, he said the one which struck him was why Jacky Underwood was at the house at all.
If it was merely a question between the Mawbeys and accused and his wife, why was Underwood there, and why was he engaged in the midst of the carnage?
However, the jury's duty was clear to them - they must be thoroughly satisfied that the blow was a premeditated one for the purpose of killing.
THE SENTENCE OF DEATH.
The jury retired at 12.15 p. m., and returned into court at 12.25 p.m. with a verdict of guilty on
a charge of murder.
Mr. Boyce handed in in writing the low points he had raised on behalf of the accused. They were as follows :-
1. That his Honor should have directed the jury that on the evidence and law the plea of autrefois convict was made out.
2. That his Honor should have directed the jury to return a verdict in favour of the accused on the plea of autrefois convict.
3. That his Honor should have directed the jury that on the evidence and law the plea of autrefois attaint was made out.
4. That his Honor should have directed the jury to return a verdict in favour of the accused on the plea of autrefois attaint.
The Associate asked the prisoner whether he had anything to say why the Court should not pass sentence of death upon him.
Jimmy Governor, who now appeared to be considerably agitated by the circumstances of his posi- tion, grasped the iron railings of the dock as he stood and shook his head. Being asked if he had made reply, he drank water from a pannikin handed to him by one of the attendant constables, and then said in a weak voice, " No, nothing."
The usual warning was given by the usher,-
" All manner of persons are commanded to keep silence in court while his Honor the Judge passes sentence of death."
The Judge then sentenced the prisoner to be hanged, and Governor was removed from the dock.
THE BREELONG TRAGEDY. TRIAL OF JIMMY GOVERNOR. THE CASE FOR THE ACCUSED. VERDICT OF GUILTY. JIMMY GOVERNOR SENTENCED TO DEATH.
The trial of the aboriginal, Jimmy Governor, on a charge that he did at Breelong on July 20 last feloniously and maliciously murder Helen Josephine Kerr, was continued at the Darlinghurst Old Court yesterday before Mr. Justice Owen and a jury of 12.
Mr. G. G. Wade, Crown Prosecutor (instructed by the Crown Solicitor), conducted the case for the Crown ; Mr. F. S. Boyce (instructed by Messrs. Lane and Roberts), was the counsel assigned by the Crown for the defence.
The prisoner had pleaded not guilty (on the facts).
When the Court rose on the previous (the first) day of the trial, the Crown case had closed.
CROWN WITNESSES RECALLED.
At the request of Mr. Boyce, John Thomas Mawbey was recalled. In answer to Mr. Boyce he said he did not know whether anything was stolen from his house. He had not looked.
Did you look round the house ?- I did.
Was there anything to lead you to believe that other blacks had been about ?-Yes, I saw other
tracks about.
To Mr. Wade: Blacks used to hunt opposums about the place. It was on the Sunday that the strange tracks were noticed.
Constable Berry, recalled by Mr. Wade, said that when he was following the tracks as previously des- cribed by him, he saw two tracks of persons going from the camp towards Mawbey's, and the same two tracks going back towards the camp. That was in the grey dawn of the Saturday morning.
A juror : Did you see tracks of two men only ? Yes, of two only.
Mr. Boyce : If there was a woman there you would find some difficulty in tracking her ? No, not if she wore boots. I could not say whether any other tracks were about the house, because I did not
look for them.
OPENING THE ACCUSED'S CASE.
Mr. Boyce : Your Honor, the accused desires to hand a statement to the associate to be read. He cannot read well.
The Judge : Very well.
Mr. Wade : If he can write a statement he can read one, and the law is that he may not put his evidence in writing if he can give it orally.
The Judge (with an authority before him) said that the Full Court had laid it down that in their opinion the statement of a prisoner must be given orally if it could. In view of that opinion he
could not admit the statement.
Mr. Boyce : I am surprised at the Crown taking such a technical point.
The Judge : It is not a technical point ; it is the law. Such a statement might have a prejudicial effect on the mind of the jury. The Crown has not taken a technical point, but has simply pointed out to me what the law is.
Mr. Boyce : The law in England is such that your Honor has power to admit the statement. This is a case of life and death, and surely in this case where the man cannot read English and desires to make a long statement of fact be ought to be allowed to do so.
The Judge : There is no doubt good reason for the law. I do not even know who wrote this state- ment. It may not have been written by the prisoner. It may be a document carefully prepared by a solicitor and containing ingenious argument. This man can speak good English -as good as anyone in the Court - and if he can reduce a statement to writing he can surely speak it.
The prisoner rose to speak.
The Judge : I would have liked this statement to be taken by a shorthand writer. However, we
must go on.
STATEMENT BY THE ACCUSED.
Accused said : Me and my missus had some words about the Mawbeys at the camp, and I said, "Drop it, don't tell me no more of it, I don't want to hear any more of that." So she said to me, " They rub it in , they do as they like with you." I said to her, " You come down and I will see about it." So we got ready and made off - me and my wife, Joe, and Jacky Underwood. I was going down for some flour and a bag of sugar. I went down first to Mr. Mawbeys. They were in bed. so I sung out to Mr. Mawbey, " Is Mr. Mawbey in bed ?" Mr. Mawbey said, "Yes Jimmy, we're just about turning in." So he came out. I said, " Please, Mr. Mawbey, I want a bag of flour up in the morning and a bag of sugar. " He said, " All right, Jimmy ; I will send them up in the morning or some time to-morrow." He asked me inside. I said, " No, it is getting late I must got back. " He said, "Good-night, Jimmy," I said, " Good- night, Mr. Mawbey. "
So I came back to where my brother and my wife were I said to my wife, " I am going to see Mrs. Mawbey about those words she has been saying, I'll make her mind what she is talking about. I'll take her to Court if she does not mind herself."
I went up to the house. I said, " Are you in, Mrs. Mawbey? Did you tell, my missus that any white woman who married a blackfellow ought to be shot ? Did you ask my wife about our private busi- ness ? Did you ask her what sort of nature did I have-black or white ? ''
With that Mrs. MawbEy and Miss Kerz turned round and laughed at me with a sneering laugh, and before I got the words out of my mouth that I said in court I struck Mrs. Mawbey on the mouth with this nullah-nullah.
Miss Kerz said, " Pooh, you black rubbish, you want shooting for marrying a white woman." With that I hit her with my hand on the jaw, and I knocked her down. Then I got out of temper and got hammering them, and lost control of myself. I do not remember anything after that.
The Judge : Is that all you want to say ?
The accused : After that I went to camp. All this bushranging business that we were talking about we all agreed to. It was not all true that we were going to do it. We wanted to get my missus out of the road. We made it up that Joe was not to be there, nor my missus. I had a great name as a smart man and all that, so when we did this they would know I was the man. But it was not true I was the main man. Away we went that night and we camped in the bush. We parted in the morning.
Accused resumed his seat.
Mr. Boyce intimated that he had no witnesses to call. He asked accused if he had anything more to say, and Governor added : "I am speaking straight from my heart, and I am afraid of nobody."
COUNSELS' ADDRESSES.
Mr. Boyce addressed the jury for the defence. He said the jury could not have helped reading the sensational accounts served up of the tragedy, but he hoped they would succeed in putting aside all thoughts of the public clamour for vengeance on this particular black. Had the jury ever thought that perhaps after all this man was not so bad ? Had they ever reflected how it was that this calm and quiet mannered man suddenly became a raving demon. The man, they must remember, was not being charged for the murders in the bush, of which they had all heard, but of the murder of Miss Kerz. Now the theory of the defence was that the man had acted in a frenzy of temper in the case of Miss Kerz, and the law mercifully said that in certain cases where provocation was given to the accused by the deceased, and such provocation was intentional and of a nature reasonably calculated to rob a person of self control, and really did have that effect, the killing would be manslaughter.
Here was a man of no high feeling or high sentiment, a rover under the roof of Heaven, a man who by his environment and nature had not learned to control himself as other men had. Could we, who had neglected, despised, and taunted the aboriginals, expect them to exercise the ordinary human control. This particular man had taken a white wife. He was a man of sensitive nature - a better man than most blacks, because he worked when he could get work - and the taunts hurled at his wife were doubly felt by him.
The jury could picture the white wife of a blackfellow knowing [kneeling] in the camp and praying " O Lord take me away from here, I cannot stand what these women are saying." The husband had seen that and there was then sown the seed of which the harvest was that terrible night.
Jimmy Governor denied that the object of the men was bushranging, and could not that statement be credited when it was remembered that the men went armed not with guns but with sticks, and they stole nothing.
No motive was suggested by the Crown for the murders, because it was clear there was no motive - it was the outcome of sudden passion. Jimmy used to play cricket with the children of the Mawbey family, and so it was apparent that the two families were in friendly relations. If the idea of wholesale slaughter was in Jimmy Governor's mind, why did he not start by sacrificing Mawbey when he found him alone and unarmed ?
The answer was that the sudden passion was not there ; that having no intention to commit murder, the idea never entered his head in preconceived form. His intention was to " take Mrs. Mawbey to the court if she did not watch herself." He went to the house for that purpose, and it could not be supposed that he suddenly became a raging lunatic for nothing. Mrs. Mawbey and Miss Kerz wheeled round on him and laughed and sneered, and Miss Kerz said, " Pooh, you black rubbish, you ought to be shot for marrying a white woman." That was the turning point, when those words were spoken to him the sudden passion rose and that was the last of self-control.
The savage heart, tainted with the thirst of blood, burst through reason and one of the foullest of crimes was committed. The man's mate seemed also to have lost his reason. Was it not corroborative of the accused's statement about the sneering remarks that Mrs. Mawbey on her death bed referred to the " black rubbish."
The statement of Miss Kerz touched Jimmy Governor on two spots which were susceptible-that of his colour and that of his wife. There could be no question of robbery , there was no suspicion of money being in the house, so the motive of robbery and bushranging was out of the question.
There could be no such motive as revenge, else why did he kill the little children ? Could he have wanted revenge on them ? And on the other hand, if revenge were the motive why did he not wreak it upon Mr. Mawbey.
Then, again, let them think of the weapons used. Jimmy Governor had been a tracker in the police force, and was a cunning man in many respects. Would such a man, starting out with the diabolical intention of killing eight or nine people, arm himself with a stick ? There was a tomahawk there, but other blacks were also there. Percy Mawbey was killed by a tomakawk, and Jacky Underwood had killed Percy Mawbey. Miss Kerz was killed by a stick, and she was killed by Jimmy Governor.
There would be in the minds of the jury cases where men had been convicted of manslaughter though half-an-hour elapsed between the time of the provocation and the killing. Here in this case the whole of the event was completed at once-in one burst of temper.
That the Crown had selected the death of Miss Kerz upon which to try Jimmy Governor for his life was perhaps fortunate for the accused. If the death of Mrs O'Brien or of the children had been the subject of the trial, perhaps nothing could have been said against the charge, but in the death of Miss Kerz there was abundant evidence of high provocation, and of unreasoning passion.
Mr. Wade said the law was that if a man were provoked and angry, and in anger or passion took a fellow creature's life, that was murder, unless the man proved that when the blow was struck it was not struck with the intention of taking life.
If Governor had stopped short at the first blow the case might have been different, but it was shown that after he first struck Miss Kerz she ran 100 yards, and Governor, with a murderous implement in his hand, pursued her and beat ber head in.
The case of a blackfellow could not be regarded in any different light from that of a white man no matter that his habits of life differed.
The Crown admitted all through that there was ill feeling between the families, and contended that the murder was done as an act of revenge.The reason why the children also were murdered was to clear out the house of all witnesses. The evidence showed that the accused had been taunted by his mates, and told that he had no courage as a bushranger and those taunts no doubt helped him to arrive at the determination to obtain revenge on the Mawbeys.
The accused's statements had differed in material points on the several occasions on which he had made them.
He (Mr. Wade) proceeded to review the evidence and deduced from it that the two blacks had premeditated an expedition to first ascertain whether, Mr. Mawbey was away from home and if so then to murder Mrs. Mawbey and Miss Kerz and also, in order to remove evidence, everyone in the new house.
Supposing it could be believed that Jimmy Governor merely went down to remonstrate with the Mawbeys, then why did he go with Jacky Underwood, why was Jacky armed with an axe, why did he go into the house, and why did they chase the people out of the house, and kill them outside ? They had to remember the evidence of one of the boys, which was that Jimmy Governor had said to Jacky Underwood, "Go it, Jacky dash their brains out."
Surely no one would say that was anything but intentional murder then again there was the remark of one of the men, " There's another somewhere" That again showed the premeditated plan of killing everyone in the house.
THE SUMMING UP
Mr. Justice Owen summed up. He said the counsel for the defence need have no fear that he had not done his duty by his client. The address which he gave to the jury and the way in which he had conducted the case throughout had been admirable. He had said everything that could be said and taken all points on behalf of his client. Now it was the duty of the jury to deal with the case which was placed before them.
No doubt learned counsel laboured under considerable difficulty from, probably, twofold causes - their peculiar circumstances of this case and the defence set up by the prisoner himself.
When the murder first took place a thrill of horror passed through the whole community, and the excitement was not limited to the time of the murders, but for weeks or months afterwards the excitement of the public was kept up in the tracing of the footsteps of those who were supposed to have committed the crime. In consequence the minds of the public were necessarily imbued to a very large extent with preconceived ideas of the persons who were ultimately arrested. Therefore it was a task which taxed the ingenuity of counsel to set the jury to view the case apart altogether from their prejudices.
The jury came there to try the case on the sworn evidence presented to them, and had no right to consider anything outside of that. It lay on the Crown to prove to the satisfaction of the jury that the prisoner was guilty of the crime with which he was charged.
Everyone was considered innocent until he was proved guilty, and even if the jury had preconceived opinions before they came to that court as to the guilt of the prisoner, if the Crown had left the case in doubt, the jury would be bound to give a verdict for the prisoner. But of course if the Crown had made out a case to the satisfaction of the jury they must return a verdict of guilty. The defence which had been set up had relieved him (the Judge) of a good deal of trouble in bringing before the jury all the points of the evidence to show tbat the accused struck the fatal blow.
It was admitted by the defence that the accused was the one who killed Miss Kerz. The defence was that he killed her by an unpremeditated act caused by taunts which she threw out against him and his wife and that, therefore, the act was manslaughter.
The section of the Act under which they could bring in a verdict of manslaughter contained three provisions which were necessary to be proved. He particularly wished to draw their attention to one of those provisions, which was "that the act causing death was done suddenly in the heat of passion caused by such provocation without intent to take life." The law presumed that when life was taken by a blow it was murder unless the prisoner could prove it was manslaughter. That meant that when a person had received grave provocation and struck a blow there and then - being roused by a taunt or blow or insult - and the blow caused death, but the person striking the blow had no intention to kill, but merely to strike by way of punishment, it would be manslaughter.
Now the jury had to decide whether the blow which the accused inflicted on Miss Kerz was intended to take life.
The Judge then briefly reviewed the evidence, and dwelt upon that part referring to the finding of the body at a distance from the house. Of the points taken by the counsel for the Crown, he said the one which struck him was why Jacky Underwood was at the house at all.
If it was merely a question between the Mawbeys and accused and his wife, why was Underwood there, and why was he engaged in the midst of the carnage?
However, the jury's duty was clear to them - they must be thoroughly satisfied that the blow was a premeditated one for the purpose of killing.
THE SENTENCE OF DEATH.
The jury retired at 12.15 p. m., and returned into court at 12.25 p.m. with a verdict of guilty on
a charge of murder.
Mr. Boyce handed in in writing the low points he had raised on behalf of the accused. They were as follows :-
1. That his Honor should have directed the jury that on the evidence and law the plea of autrefois convict was made out.
2. That his Honor should have directed the jury to return a verdict in favour of the accused on the plea of autrefois convict.
3. That his Honor should have directed the jury that on the evidence and law the plea of autrefois attaint was made out.
4. That his Honor should have directed the jury to return a verdict in favour of the accused on the plea of autrefois attaint.
The Associate asked the prisoner whether he had anything to say why the Court should not pass sentence of death upon him.
Jimmy Governor, who now appeared to be considerably agitated by the circumstances of his posi- tion, grasped the iron railings of the dock as he stood and shook his head. Being asked if he had made reply, he drank water from a pannikin handed to him by one of the attendant constables, and then said in a weak voice, " No, nothing."
The usual warning was given by the usher,-
" All manner of persons are commanded to keep silence in court while his Honor the Judge passes sentence of death."
The Judge then sentenced the prisoner to be hanged, and Governor was removed from the dock.
