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R. v. Holden [1838] NSWSupC 107

murder, sentencing discretion - domestic violence - Patricks Plains - sentencing discretion, doubts about guilt - sentencing discretion, murder

Supreme Court of New South Wales

Burton J., 8 November 1838

Source: Australian, 10 November 1838[ 1]

THURSDAY. - Before His Honor Mr Justice Burton and a Civil Jury.

Thomas Holden stood indicted for the wilful murder of Mary, his wife, at Cockfighter's Creek, Patrick's Plains, on the 13th of October last.

John Evans, a shoemaker, residing at Cockfighter's Creek, deposed, that he knew the prisoner, who lived about a mile distant from his house.  About four o'clock on the 13th of October, witness met the prisoner who was limping, and at first witness thought he was drunk, but on further scrutiny he found he was not.  Witness observed a cut on his eye, and asked how he came by it, to which the prisoner made no answer, but asked witness to go back with him.  Witness had a pair of shoes with him, which he was going to deliver to a man named Grounds, and he told the prisoner that he could not go back with him, but that he would overtake him if he did not walk fast.  Prisoner then said to witness ``Mary my wife is dead and cold;" witness asked him how she had come by her death, to which he answered, that three men had been at the house the day before, and had some wine to drink, and that when they left he house, his wife had slipped out after them, and he could not find her.  Witness asked him if he did not know the men, or any of them, and prisoner said he did not, witness remarked, that if he did not find out who the men were, the police would make him answerable for it.  Witness then went on to Grounds; house, and returned accompanied by a man named Carpenter, to whom witness related the circumstance.  Carpenter then called the witness, and said ``come back with me and I will shew you where Tom killed his wife."  They went to Holden's house, and Carpenter pointed out to the witness blood on the slabs, and in a gutter round the chimney, (which had been made to carry the water off) and beside this was the leg of a stool, about the length of his arm and about two inches round.  Carpenter and witness then went into the house, and the prisoner's wife was laid out dead, with a sheet over the body, which was dressed in a clean chemise and cap; they also observed a track, as if something had been drawn along the ground from the gutter where they had observed the blood, to the door of the hut; the face of the corpse was very black, and there were several marks evidently made by blows.  The deceased was about twenty-nine years old.  Witness formerly lived with the prisoner, but left him the night he was married, because the deceased bore a very bad character.  On the morning following, witness returned to prisoner's hut and looked for the leg of the stool, which had been removed.  Witness did not believe that any liquor was sold by the prisoner, but there was a wholesale store in the neighbourhood, from which it was procured.  The deceased had the character of being a drunken prostitute, and when drinking would stop two or three days away from home, for which, a short time before her death, she was sentenced by the Bench to the cells.

Thomas Carpenter, a general storekeeper, who lived a quarter of a mile from the prisoner's house, in consequence of information he received from the last witness Evans, went over to the hut, and saw the leg of a stool covered with blood and hair; also blood over the door and other parts of the house.  Witness also observed a gown, much torn, a pair of trousers, and some other articles, all covered with blood in the hut; and he also spoke distinctly of a track from the chimney to the door, which appeared to be that of the feet of a person dragged along the ground.

Elijah Gullridge, a native of the colony, stopped at Carpenter's house, about a quarter of a mile from the prisoner's, on the 12th of October, and on the morning of the 13th, between six and seven o'clock, he was going past the prisoner's house to water his horse, and saw a man come out of the hut, flourishing a stick over his head; when witness advanced a little further, he saw a woman lying by the chimney of the house, apparently asleep; thinking nothing about the matter, and that the woman might be drunk, witness went on to water his horse, and on his return past the house, the woman was gone from the chimney, and the hut was shut up and quiet.  Witness was too far from the hut to recognise the person of the man, who was dressed in a shirt and fustian trousers, similar to those produced in court.  He mentioned the circumstance to Carpenter when he got home, but thought no more about it.

Thomas Cleverney, a shepherd, called at the prisoner's hut, on the morning of the 13th of October, and asked to boil his pot, and get his breakfast.  The prisoner gave him permission, and he was going out to gather some sticks to put on the fire, when, in passing the bed-room door, witness saw a woman lying on the floor, but supposing her to be drunk, he did not take any more notice of it.  When he returned with the sticks, the prisoner shut the bed-room door, and witness went on to boil his pot; prisoner sat down in the ut, and at times cried, and said his heart was broken; but neither witness nor prisoner said anything about the deceased; the house appeared gloomy, and out of order and there were marks of naked feet on the floor, which induced the witness to suppose that a party had been drinking and dancing in the house; prisoner wanted witness to stop, but he would not, and wet on with his flock after he had his breakfast.  On his return with his flock, about thee o'clock, witness saw several persons about the house, and was told that the prisoner's wife was dead.

Peter Little, who lived about a mile and a half from the prisoner, deposed that the prisoner went to his house, and asked to stop there, as his wife was dead.  Witness told him he had better get some woman to go up and lay her out, when prisoner replied that he had washed her and laid her out himself.  Prisoner told witness that three men went to his house the night before; that his wife opened the door, and one of the men knocked him down; that his wife went away, remained away all night, and come home abut two hours before day-light on the following morning; she laid down on the floor, and he laid down upon some chips outside; when he went to her shortly after, and turned her over, liquor flowed out of her mouth, as though it had been poured from the bung-hole of a cask, and he then found that she was dead.  Prisoner was dressed in a striped shirt and a pair of Parramatta trousers; witness observed some spots of blood on the shirt; witness then reported the circumstance to a neighbour, who sent to the prisoner's house, where he found the deceased laid out with clean things on her; she had a cut on her chin and other blows on the face.  In describing the transaction to witness, the prisoner said that his wife came home with her clothes much torn, and that some person had badly used her; witness saw the prisoner and his wife well, and sitting on the same seat on friendly terms, at two o'clock on the day before; when witness went to the prisoner's house, he produced an old gown, and said, ``look here, what a pretty state she came home in;" witness observed some blood on the ground by the chimney, and some blood on the slabs, and the prisoner said he did not know how it came there.

Captain Forbes, police magistrate at Patrick's Plains, deposed that he went to the prisoner's house on the morning following that laid in the information.  He took down a statement in writing, which was read, and was to the following effect:-- Three men had gone to the house on Friday night, just as he was going to bed; his wife got up to go to the door, and he followed to prevent her; when one of the men knocked him down, and his wife went out.  She returned home drunk at seven o'clock in the morning, went into the bed-room, and laid down on the floor; prisoner was at breakfast, and after he had his breakfast, he went out to work, and did not return until one o'clock; during his absence, his wife must have got up, as she had a jacket and shirt of his under her head; he went to lift her up, when about a quart of wine came out of her mouth, and he found she was dead; he said that when she came home, her hair was hanging about her person, she had blood upon her, and her clothes were torn all to pieces; he accounted for the blood on his shirt, as having got it from her when he lifted her up; and for the blood on the slabs, by his having killed a sheep the day before.  When at the Police office, a wedding ring was found on his person, which was broken, and much bent from blows, and the prisoner stated he had picked it up outside the door of the hut.

Dr. Glennie was called to examine the body of Mary Holden on Sunday, the 14th October last, and found four wounds on the head about an inch and a half long, apparently given by some blunt instrument, and several bruises on her face, arms and body, as if she had attempted to save herself; opened the head and found none of the vessels broken, but they were extremely turgid; he also opened the stomach which was nearly empty, and as there was no sign of spirits on the stomach, he arrived at the conclusion that her death was occasioned by the blows; after receiving such blows, she could not only have not walked from the chimney to the door of the house, but she would not even have physical strength to raise herself from the ground; she must have been rendered immediately senseless by the blows.  The blows must have been very heavily inflicted, as the scalp was divided on the four principal wounds on the head.

This was the case; the prisoner declined saying any thing in his defence, stating, that the written statement read by Captain Forbes, was the truth of the matter.

The witness Little was recalled by His Honor, and stated that when the prisoner came to him, he had a wound in his eye, and that he walked home.

His Honor summed up at great length, recapitulating the evidence, and the Jury retired for a quarter of an hour and found the prisoner Guilty.

The Crown-Solicitor prayed the judgment of the Court on the prisoner, and His Honor addressing the prisoner, remarked upon the story which the prisoner had invented to cloak the offence, when it was possible that the true reason for the violence he had used to his wife, would have in some measure excused the crime.  As the power was in his hands to reserve judgment, he would not now pass the last sentence of the law, but lay the case before his brother Judges to see if there was any room for the extension of mercy.

The prisoner was remanded.


Dowling C.J., Burton and Willis JJ, 30 November 1838

Source: Sydney Herald, 3 December 1838


Thomas Holden, convicted before Mr. Justice Burton, of the murder of his wife; His Honor, after recapitulating the whole of the circumstances of this case, said that the prisoner's living at a distance of a mile and a half from any neighbour, had prevented him from having the benefit of any evidence which might have induced the Jury to find him guilty of manslaughter only instead of murder; had the prisoner not have told so many different stories about the transaction, and confessed himself to what the Judge felt convinced was the truth, that he (the prisoner) struck his wife in consequence of some quarrel, he had no doubt the verdict of the Jury would have been different.  These opinions he had laid before his brother Judges, who concurred with him that he would be justified in saving the prisoner's life, and he should therefore order sentence of death to be recorded against him, and he would be transported to a penal settlement for life.



[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 38, State Records of New South Wales, 2/2438, p. 95.

Published by the Division of Law, Macquarie University