Evidence Type: Newspaper Report
15 July 1845
SUPREME COURT.—CRIMINAL SIDE
FRIDAY, JULY 11.—Before his Honor the Chief Justice.
JOHN AHERN stood indicted for having on the 31st May last, feloniously assaulted, by striking, beating, and kicking, one MARY ANN CLARKE, and inflicting on her several mortal wounds, of which she, the said MARY ANN CLARKE, instantly died. The indictment contained several counts, setting forth various manners in which the murder was supposed to have been perpetrated. The prisoner pleaded not guilty. Mr. DARVALL appeared in his defence.
The Attorney General having stated the circumstances of the case called
ARMAND FANCIN, who stated that he was barman to Mr. HANCOCK, a publican on the Parramatta-road; prisoner, accompanied by a girl, came in on the 30th May, and asked for a gill of rum for himself and a glass of cold water for the girl: after some conversation, witness let him a house in HANCOCK’s buildings, for 5s. a week; prisoner paid one week in advance; he bought some buns and oranges for the girl; while prisoner was gone to look at the house the girl stood up and asked for another glass of water, and witness observed marks of blood and scratches on her face; her hands were also bruised; she appeared to move with difficulty: witness asked her what was the matter, but she gave no answer; she said prisoner was her father, the latter likewise called her his daughter; they both went away together, to get, as prisoner said, some things from the other house; it was not quite four o’clock; they went towards the house the prisoner had taken; witness did not see them any more that night; the prisoner came on the Saturday morning, and said he had paid 9d. for repairing the lock; witness did not see the girl again alive; nine or ten days afterwards saw her body in the burial ground; had no doubt of the identity of the body; there were eight tenements in HANCOCK’s buildings, situated in a yard behind the public-house; they were built with brick, in two rows facing each other, four in each row; the lane between the rows was about thirty or forty feet wide; there were two rooms in each house, one above the other; there were no shutters to the windows; it was a corner house which prisoner had taken.
CHARLES COBBEY, a stonemason, lived in HANCOCK’s buildings; saw the prisoner in the afternoon of the 30th May; he had a girl with him, looking at the houses; a load of wood was shortly after purchased by prisoner, who ordered it to be placed under the window; just after dark, saw prisoner and the girl searching for a key in the front of the house; saw the prisoner kick the girl, and she fell backwards; the girl then got on the wood, and attempted to get in at the window; but she appeared to be very weak, and unable to get in, when the prisoner pushed her in; witness did not see her any more that evening; prisoner then called out “one, two, three, give me my pipe;” he then added, “one, two, three, four, do you know what a chimney piece is;” witness did not hear the girl speak; about ten or twelve minutes after prisoner and girl came up the yard, and went towards George-street; did not see the girl afterwards: saw the body which had been exhumed, but did not identify it; the prisoner threw into the window a piece of bread on Saturday morning, about nine o’clock and put in a pannikin; witness saw the prisoner on the Sunday morning coming towards the house; did not see him afterwards till he was in custody; witness did not interfere with prisoner, nor say anything to him in consequence of what he saw; saw a light in both rooms some time during Saturday evening; did not observe anything passing in the lower room.
MAURICE ROACH lived in HANCOCK’s buildings; saw the prisoner and the girl on the 30th May, some time after dinner; saw them go into the house; heard the prisoner tell the girl to make a fire, and burn down the house, and herself too if she liked; heard the girl call to the prisoner, who was chopping wood, to come in, and she would chop the wood herself; saw nothing of the prisoner or the girl during Saturday; saw the former leave the yard on Sunday morning about ten o’clock, and go towards George-street; saw a dead body in the house on Wednesday; had no doubt it was that of the girl; she had a scar on her cheek; she walked lame.
JAMES CLARK, locksmith, went to reside in HANCOCK’s yard on the 31st May; repaired a lock for the prisoner on that day; did not see the girl at all while alive, nor the prisoner after he paid him for repairing the lock; there was a light in the upstair room of the house occupied by prisoner, either on Friday night or Saturday; could not say which; witness found the key in the lock, on the outside, on Wednesday morning; the door was not locked; after calling out, and receiving no answer, he went up stairs; saw a bonnet in one part of the room, and in a corner saw a blanket, which he just lifted, and saw a body underneath; witness then gave the alarm; when the witness went to repair the lock, he went in at the window to take it off.
THOMAS HARMER knew the prisoner as a shepherd, in the employment of Messrs. BOLTON, at Wellington, in March, 1843; he was accompanied by two females, one of whom passed for his wife, and the younger, a girl, went as his daughter; saw him again in February, 1844, on the road between Liverpool and the Cowpastures; he was accompanied then by the younger girl only; he said he had left the elder female at Goulburn, and was then going to Sydney: witness saw him afterwards in Lower George-street, Sydney, on the 29th May; the same girl was with him; prisoner, in the course of conversation, said he had given the girl a good beating the night before; the girl appeared incapable of turning her head; there were bruises or scratches on the right side of the face; did not see the girl alive afterwards; saw her . body in a house in HANCOCK’s buildings; knew her to be the same, and identified the bonnet and shawl.
JAMES M’KEON, a constable, saw the body as described by the witness CLARK; it was completely covered by the blanket; there was no weapon about the room except a short piece of billet wood, on which there was no appearance of blood; the body was dressed; there was no bonnet on the head, but a shawl or handkerchief partly covered it; one of the arms was under the head, the other across the body; the position of the body was such as that naturally assumed by a person who had lain down.
JAMES CLARK being re-called, stated that the body was covered much in the same manner as a person would be supposed to do, who wished to keep himself warm.
WILLIAM CALLAGHAN, the Coroner’s constable, found the articles produced in the room where the body was found; witness went into the room about twelve o’clock; did not take particular notice of the body except to see it was dead. There was no blood on the blanket: a piece of calico was saturated with blood; an apron was also found with stains of blood on it, also a grey jacket, such as is generally worn by prisoners. [end page 3]
DANIEL JOSEPH TIERNEY, surgeon, viewed the body on the Wednesday after it was discovered; he was told by some constable it had not been previously moved; the position of the body was such as described by former witnesses. He sent for Surgeon CUTHILL, but as he did not arrive, the post mortem examination was made by witness. Witness then described the condition of the body both prior to the post mortem examination and subsequently, as given by him at the Coroner’s Inquest, an account of which was published in the Australian Journal of the 14th of June. Some of the wounds might have been given several days before death; there was very little blood where the deceased lay; the jacket produced was under the body. There were sufficient wounds either on the head or chest to cause death. The right lung appeared to have been previously diseased, but not sufficiently so to have caused death; had no doubt the girl died from the effects of violence. It was the day after the post mortem examination witness went to Sussex-street, when he saw stains of blood on the paper of the walls and on the floor. There was some hair attached to the paper which was the same shade as that on the head of the girl; the wall close by was broken, as if by the blow of a tomahawk; it was possible that the wounds might have been inflicted in Sussex-street and that the party so wounded might walk afterwards to HANCOCK’s buildings. The wounds and bruises might not have caused death for a day or two after they were inflicted; it was almost impossible the wound on the back part of the head could have been inflicted in HANCOCK’s buildings, on account of the quantity of blood which must have flowed at the time, and of which there were no traces there. A person receiving a blow on the chest sufficient to create such an effusion of blood as was found within could not possibly live many hours afterwards. A slight matter, such as a fit of coughing, would not have caused the haemorrhage which had taken place in the lung. There were several severe contusions on the chest, some of which might have been caused by the fall from the window, if it took place on an irregular surface. The appearance of the cap produced denoted the existence of a wound not very recently inflicted. Witness was of opinion that the body had been covered by some other person after it was dead; there was no bed or paliasse underneath; it was covered with a portion of two nearly new blankets, joined together, as they were purchased, a part of which was under the body.
THOMAS KELLY relieved constable M’KEON at twelve o’clock, and took charge of the premises where the body was found. Witness then described the position in which the body was lying: that position was not altered whilst he was in charge, which was four hours. He saw a stain of blood on the floor near where the body was lying.
ALEXANDER ROSS relieved the preceding witness at four o’clock; stood on the premises till six; did not see the body; Dr. TIERNEY and two reporters viewed the body during that time.
WILLIAM EVANS, knew the prisoner; he took a room in the witness’ house, for a week, some time ago; about two or three months afterwards he came and told witness if the woman called to inquire for him, to send her down to a place near where the Maitland steamer came in; some few days after he brought the girl again, and wanted to rent a place, but witness could not receive them; this was on the Friday before the murder was heard of; prisoner then said he had given the girl a good beating, because two men were talking to her outside the window.
MARY ANN HOGDEN, lived in Sussex-street; recollected the prisoner coming to her in Sussex-street; he had a girl about fourteen years of age with him; when they had been there about a week he complained that the girl was very ill behaved; and on one occasion he accused her of being intimate with some men, both in the bush and in Sydney, the girl acknowledged the truth of these accusations; witness put the ribbon on the bonnet produced at the request of the prisoner; after they left the house witness saw marks of blood on the wall and floor; saw a pair of cap strings lying on the floor, there was blood on one of the strings; did not observe when the prisoner left the rooms; witness never saw the prisoner beat the girl; he lectured her on one occasion; it was in witness’ house; there were other persons present; she bore previous marks of chastisement; witness never saw the prisoner or the girl after the Thursday morning previously to her being found in HANCOCK’s buildings; on the Wednesday night previous, told witness he was going to take the girl to Maitland, on account of her continued bad conduct; witness never saw any of this conduct.
JOHN LOWE, constable, found certain articles produced, at the house occupied by the prisoner in Sussex-street; he also saw stains of blood on the floor, walls, &c.; a portion of the paper stained with blood was taken from the walls, near to where a pool of blood appeared to have been; the place was then quite dry; there was some short hair adhering to the paper.
CONSTABLE M’GUIRE produced a piece of cloth which he found in Sussex-street; it was wet with blood when discovered; it corresponded with a jacket found under the body of the girl in HANCOCK’s buildings, and from which a corresponding piece appeared to have been torn; there were pieces of broken plate, some of which were spotted with blood, also, a piece of calico very wet with blood.
MICHAEL HOGAN saw the prisoner the 26th May at the house he lived in, in Sussex-street, and deposed to a conversation which took place in the presence of a third person named HENRY, relative to the girl’s bad conduct, and his treatment of her in consequence; prisoner called on witness in the evening to express a wish that HENRY would not name to the girl’s mother either her bad conduct or his treatment.
RICHARD BRENNAN corroborated a portion of the evidence of the witness COBBEY; witness was sexton of the Roman Catholic burial ground; the body found in the house in HANCOCK’s buildings was interred on Thursday, 5th June, and subsequently exhumed on the 8th, for the purpose of being identified by MARGARET AHERN; witness did not see the kick which COBBEY deposed to having seen; neither could he identify the man or girl.
AMELIA HOBBS believed the prisoner was the man who lived in Sussex-street, near Mrs. HOGDEN’s; saw him once kick in the side a girl about fourteen, who lived with him; he told the girl to go and take off a cap which she had on; the girl said nothing; witness passed the house frequently, but she never saw him strike or beat her before.
MARY JANE STRABO saw the prisoner on Whit Sunday, accompanied by the girl, whose face was disfigured; the prisoner said he had beat her for her bad conduct; witness saw prisoner kick her once very violently two or three times; they stayed one night at witness’ house; the prisoner on the following morning accused a man who lived on the premises of having been in bed with the girl; the prisoner brought the man in, who denied the fact, but the girl admitted it to witness; the prisoner and witness slept in the same room on the floor; the girl said the prisoner was her father; the servant man had lived in Maitland when the prisoner lived there; prisoner wanted to rent a piece of ground to witness’ mother; but it was refused on account of the bad character of the deceased.
ALEXANDER CUTHILL, surgeon, deposed to having seen the deceased, MARY ANN CLARK, on the Wednesday morning; the body was on one side, the face towards the wall; both the arms were down; he might have raised on of them; the position in which he found the body was not a natural one, it was such as led witness to infer it had been placed in that position after death, or in a dying state; one of the wounds in the head appeared as if inflicted by a kick from a sharp-edged shoe; did not examine the wound at the back of the head; it could not have been inflicted in the room, or there must have been more blood; the blanket was partly under and partly over the body; did not think it could have been so placed by the deceased before death; a person having the wounds in the head which he saw on the deceased could not have died a natural death; the wounds in the forehead would not have been of any consequence to a healthy subject: did not think that blows on the chest would create internal haemorhage [sic] of the lungs, except they were very much diseased, and then it was doubtful; a person might have received the wound on the back of the head, and walked half or three quarters of a mile, and then have laid down and died.
MARGARET AHERN—Was the prisoner’s sister; had a daughter named MARY ANN CLARKE; the last time she saw her was in Maitland, in June, 1844; she was born in the Colony, about 13 or 14 years ago; witness and prisoner were tried for the same offence, and sent to this Colony; her sister JOHANNA was transported after witness; witness went to live at Maitland, and about two years and a-half ago her brother and sister came up to Maitland and asked to have MARY ANN, promising to take care of her; the girl went, and returned about a year and a-half ago with them, to Maitland; witness did live with a man named COLLINS, at Maitland, but had not done so since the inquest; she was unwilling to let the children go with prisoner and her sister the second time, but they insisted on it, saying witness was not able to maintain her; witness went to her brother’s to get the child away from him, but he struck her a blow in the face, and said she should not have her; prisoner and his sister afterwards went out of town with the child, without the knowledge of witness; the next time witness saw the prisoner was on the Wednesday afternoon before he was taken; she said to him “where’s JOHANNA and MARY ANN;” he said they had ran away in the bush, but did not say where; he sate down and filled his pipe, and present gave witness 2s. 6d., and asked her to go and buy a shirt for him; she went and fetched a new regatta shirt; he then took off the shirt he had on, rolled it up, and put it on the fire; she got between him and the fire, and put out her hand for the shirt, saying, “don’t burn it, JACK, it will be useful to me for patches;” he pushed her away and rammed the shirt down in the fire till it was burned; she asked him several times after about JOHANNA and the girl, but he did not give her any more satisfactory answer; he staid at the house the next day, but she did not see much of him as she was out washing; she heard of her brother’s apprehension, and was sent down to Sydney by Mr. DAY, Police Magistrate of Maitland; she saw a body on the Sunday morning following taken out of the church yard; it was that of her daughter; she cut off some hair; it was the same as that stuck on the paper produced; she lived in Sydney before she went to Maitland, renting a part of a house in Cumberland-street; the girl did run away from her at that time; could not speak positive as to the age of the child; she was born in Parramatta Factory; when the child ran away, she staid away a day or so, and witness beat her when she got her home again; she also cut her hair off, for not keeping it tidy; when her brother and sister brought the girl to Maitland the first time, they stopped at a Mrs. HENRY’s, and it was there prisoner struck witness the blow; did not see from what direction the prisoner came to the house on the Wednesday afternoon; the girl was of sound mind, and was a sensible child, but said she was afraid of her uncle.
WILLIAM ADSON, Serjeant in the Sydney Police, arrived at Maitland just as the prisoner was apprehended; he denied that he had a daughter or a niece, or that he had been lately in Sydney; witness perceived marks of blood on his trousers, his waistcoat, and on the toe of his boot, which he said proceeded from two wounds on his shin, which he shewed witness; the trousers were then taken off him and others given him, when he fell on his knees and said he would tell all about it; he said that about a year ago he and his old sister, and the little girl, had gone up the country, that he had left his sister at Cassilis, and that on his road down the girl’s conduct had been very bad, escaping from him every night, to any man she could meet; that he came to Sydney and took a small place in Sussex-street, and that he staid there seventeen nights, nine of which she passed from home; the last night before he went to Parramatta-street, the girl got out, and came home very much bruised and knocked about; he told witness that he removed to Parramatta-street, and bought a load of wood, intending to cut it up and sell it in barrow loads, but that not being able to get any good of her, he bought some tea and sugar for her, and left her there; witness did not tell him that the body had been found there; prisoner said he had gone to the steam wharf, to take a passage to Maitland, but no steamer going, he took the road; witness cautioned him not to say anything to criminate himself, but he seemed much inclined to talk; he asked when the Criminal Court would open, and witness told him in a month; he said, “God bless me, alive to day, and dead this day month;” he said that he walked all the way, by the road.
A Juryman was here sworn, who deposed that the distance to Maitland by land was about 130 or 140 miles.
JOHANNA AHERN—was the prisoner’s sister; prisoner had come out to this country before her; she met him first in Parramatta, some years ago; she was then living at Mrs. CAMPBELL’s, at Parramatta, and was not free; she afterwards living in Sydney, at Mrs. PALMER’s, at the “New York Hotel;” she afterwards went up the country to a person named IRVING, with her brother, he as shepherd, she as hutkeeper; they sometimes passed as man and wife; another shepherd lived in the hut; she slept in the same bed with her brother, but had a separate blanket; when they left IRVING’s, they went to Maitland, and took the child with them; they thence proceeded to BOLTON’s station, near Bathurst; the girl passed as her daughter; they staid at BOLTON’s six months, and went to Bathurst, where her brother was ill from an accident he met with; they afterwards came down to Sydney to buy some things, and staid a week, and then went up the country again, and engaged with a Mrs. HOOD, where they staid three months; they then went to Mr. COPE’s, near Cassilis; up to the time of going to Mr. COPE’s, the prisoner was always very kind to her and the girl, but whilst there, he beat the girl, and she bolted away from him; he beat her three or four times on that occasion with a rod; it was about two months since witness left him; she did not hear anything of him till the Chief Constable of Patrick’s Plains came to her; when witness was in Maitland, at the time of the races, she told her sister to keep the little girl, but the latter said she would rather go up the bush with her uncle and aunt; she did not say “good bye” to her sister when she left, for her brother and the girl went off suddenly, and she went with them, to take care of the girl; the conduct of the girl was always very good; the mother was not willing that the girl should leave Maitland, but the latter would go; when her brother beat the girl at Mr. COPE’s station, it was because he found out that a man had been behaving improperly to her; prisoner left the station because the men about it were after the girl, and he said it was not fit for her to be there; she told prisoner and witness that some of the men had had improper doings with her.
NEAL TONER—knew the prisoner about twelve months ago, at West Maitland; he lived there at Mrs. HENRY’s, with his sister JOHANNA, and his niece; knew also the other sister, who lived with COLLINS the nailer; the prisoner, sister, and niece, all slept in one bed; witness saw the prisoner on the Friday before the murder was discovered, down in Sussex-street; he also saw the girl, who pulled her bonnet over her face; prisoner said he was going to leave the house he was in, and was in a hurry; and on witness saying he wanted a little place, he told him it was already let, and would not do him; it was about nine o’clock in the morning when witness went into the house on Friday, and on the Tuesday after, he saw a crown round the door of the house, and heard a rumour of a murder; on the Wednesday morning, witness saw the body of the girl in HANCOCK’s buildings; it was that of the girl he saw in Sussex-street.
The Attorney-General said he had one or two witnesses more, but did not think it necessary to call them, and should, therefore, close his case.
Mr. DARVAL, in his address to the Jury, pointed out the weak nature of the purely circumstantial evidence which had been adduced. He dwelt much on the absence of any proof of actual violence at the hands of the prisoner, except when he put the deceased through the window, into the house, in HANCOCK’s buildings, and though a medical man had admitted that the fall into the house might, in her weak state, have caused death, yet it surely could not be said that the prisoner was then actuated by any murderous or felonious intent. He also rested great weight on the consistency of the statements of the prisoner, in all of which he admitted having beat her, but said that it was in the way of correction for bad conduct. The conduct of the prisoner too in going at once to Maitland, when he was sure to be sought for, did not speak of guilt. The learned counsel forcibly pointed out the terrible danger of allowing loose evidence of a circumstantial nature to effect their minds and imaginations, and implored them earnestly to consider the evidence and the facts calmly and dispassionately, and to be guided in their verdict by these alone.
His Honor then summed up at great length, going through the whole of the evidence, and applying thereto the law by which it was to be received.
The Jury retired for about half an hour, and when they returned, pronounced a verdict of guilty.
The Attorney General then prayed the sentence of the Court, and his Honor having addressed the prisoner in an impressive speech, passed sentence of death upon him in the usual manner.
The Court was much crowded throughout the day. The prisoner appeared firm and collected, and heard the final sentence passed without any apparent emotion.
The Court adjourned a little before two, on Saturday morning, till ten o’clock of the same day.
Female Factory Online (femalefactoryonline.org), “MARY ANN CLARKE,” https://femalefactoryonline.org/law-reports/p18450715/, accessed [insert current date].
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