THE SOUTH TRAGEDY.

THE INQUEST.

CONSTABLE WHITE’S EVIDENCE.

THE inquest on the body of John Jeremiah Considine, who was killed at South Broken Hill on Sunday morning, was resumed at the Town Hall this afternoon before Mr. A. N. Barnett, district coroner.

Constables J. L. White and George Shiell were present in custody. Alderman John Souter was foreman of the jury.

Mr. A. J. Hall appeared for the relatives of the deceased.

The first witness was Constable James Lees White, who appeared with his head bandaged.

The Coroner said before administering the oath that the witness was not obliged to answer any questions which might bear on any future proceedings.

The witness said : – I was stationed in charge at South Broken Hill ; I am relieved from duty ; I have been in charge at South Broken Hill from the middle of October last ; I was on duty at South Broken Hill on the night of March 17 ; Constable George Shiell was also on duty ; I saw the deceased Considine on the morning of the 18th at about a quarter past 12 o’clock ; he was in the back yard of Hegarty’s Hotel; he came from the back of the hotel with two men named McLennon into South-street ; be came to the gate of the yard of the hotel ; the three men appeared to be the worse for liquor, the two McLennons more so than Considine ; as they came to the gate I said, “Good night, Considine ; don’t you think it is about time you were getting home?’ ; one of the McLennon’s said, ” Oh, yes, come on, Jack ” ( meaning Considine ) ” we’ll go;” Considine replied, ” No, I won’t – I’ll go home when I think fit ;” he then put his hand up to his ( witness’ ) face, and, spreading it out, said, ” Now, White, you appear to be watching me ;” he still kept putting his hand up, and said, ” Now, White, I warn you if Shiell or Shiner comes to arrest me you had better come well prepared or you’ll go down.” I replied, “There’s nobody talking about arresting you.” He replied, “Never mind, I’ve warned you ; take what meaning you like out of it ;” one of the McLennons got him by the arm then, and said, ” come on, Jack, never mind;” he replied, “you go away, Hughie, and mind your own business,” and pushing McLennon in the chest, knocked him down ; Constable Shiell then stepped over to the kerb side of the footpath and beckoned with his finger saying, ” Look here Jack, I want to speak to you ;” Considine passed me, and went over to Constable Shiell, putting his hands up in a threatening attitude, saying : ” You, Shiell, you’re only a ……… thing, a …… sneak, and a ….. crawler. Shiell replied, backing away from him towards the fence of the hotel, and Considine said, with his hands up in a fighting attitude, ” I’ll drop you.” He backed Shiell against the fence up to within about two feet or a yard from Hegarty’s Hotel; Shiell drew his baton and struck at him, and I also drew my baton, believing there would be a row ; I believe he struck Shiell; he rushed at Shiell, and I struck him with my baton over the forehead ; he sidled backwards and then started to run along South street and into Patton-lane ; he entered Hegarty’s Hotel by a small gate off Patton-lane, and ran through the yard into the passage of the hotel, followed by myself and Constable Shiell ; finding there was no light in the passage of the hotel, we didn’t enter ; called the landlord, Mr. Hegarty, who came out and gave me a candle ; at this time I heard a noise as if a door was being opened and shut ; lit the candle and proceeded along the passages of the hotel and searched them, but failed to find anybody ; found that the door of the hotel leading into South-street was closed, but unlocked ; remarked to Hegarty, ” He’s got away, we must let him go and take proceedings on Monday “; after speaking to Hegarty for about three minutes at the side door of the hotel, Hegarty either remarked, ” Here he’s coming ” or ” Here’s somebody coming,” could not say which ; Hegarty took the candle, and going inside closed the door ; it was Considine coming, and he appeared to increase his pace as he came towards us, saying, “Now, I’ll smash your ….. brains out;” the McLennons were at this time standing near the entrance gate of the hotel, 20 yards off; when Considine came within 10 paces of me I saw he had something in his hand which he was carrying low down, as if it were a rifle; he struck at Constable Shiell and then swung round at me ; I then saw that what he had was not a rifle, but a bar of iron or an octagon drill, about 4ft. or 4ft 6in. long ; he swung it round in both hands with terrific force at me ; I closed with him to try and avoid the full force of the blow, but the iron struck me over the left ear, and I fell on my back out on to the footpath ; I produce the cap I was wearing at the time showing, it cut through just where I got the blow over the ear ; I was partly dazed for a few seconds; I raised myself on my left elbow, and looking round saw Considine chasing Shiell down along the police station fence in Patton-street ; I got up, staggered across the street, and went into the.police station; I had previously tried to arrest Considine for riotous behavior ; I saw Shiell at the police station; we got our revolvers and went out into Patton-street with a view to effecting his arrest ; we saw him standing in South-street, against Krantz’s store, about 30 or 40 yards from us ; we went towards him and he started to move away towards the direction of his house or towards Hebbard-lane ; I called out, ” Considine stand, or I’ll shoot;” he then started to run ; the period between this time and when I got up off the path was about three minutes ; he ran, and I called out again, ” Considine stand or I’ll shoot”; he was 20 yards off ; he increased his pace and replied “Shoot away, I can do you,” or ” I can do for you,” I’m not sure which ; I then fired a shot from about 10 paces behind him into the ground before him to frighten him ; he still kept running and as he turned into Hebbard-lane I fired another shot at his feet ; it didn’t appear to take effect, as he still kept running, and as he turned into his own block, he partly looked back over his shoulder at the time to see if I was pursuing him ; after getting into his own block he turned round and faced me, and came towards me with his hands up in front of him about level with his face ; I ran into, him, striking him with my left shoulder, knocking him down ; he then said, “I give in,” and with the assistance of Constable Shiell I put the handcuffs on ; we picked him up between us and conveyed him some yards when his knees gave way, and he suddenly fell down, saying, ” I’m done ;” I fired three shots, the third one being fired as he turned out of Hebbard-lane into his own block ; I fired the third shot at his knees as he was running and looking back at me ; after I fired the first shot Shiell also fired, but without apparent effect ; after I fired the second shot Shiell responded, and this also didn’t appear to take any effect ; as I fired the third shot Shiell immediately fired also, Shiell being about a yard behind me ; Considine appears to be in the act of turning round and coming towards me ; cannot say in what direction Shiell fired when deceased fell down I ran for cab over in Hebbard-street, as he appeared to be badly wounded ; left Considine with Shiell ; told the cabman to come to Hebbard-lane, and when I came we put the deceased into the cab he was then alive, but breathing heavily ; before removing Considine to the cab Mr. Pound and a man named Reid came and assisted us to put the deceased in the cab ; the cab went down to the police station ; Constable Shiell came out and went in the inside with the deceased; I got on the box with the driver, and told him to drive as fast as he could into town ; we reached Dr. Thomson’s surgery in Argent-street at about 12.45 ; I called Dr. Thomson; he came out and examined Considine and said he thought life extinct; he bandaged my head, and we then drove to the hospital and put the body of the deceased in the morgue; the revolver produced is in the same condition as it was when I used it ; it is loaded in three chambers; three cartridge: were exploded.

http://trove.nla.gov.au/newspaper/rendition/nla.news-article44127456.txt

Barrier Miner (Broken Hill, NSW : 1888 – 1954), Tuesday 24 April 1894, page 4

[The continuation of the evidence will appear in the Third Edition.]

THE SOUTH TRAGEDY.

His Honor’s Summing-up. The Functions of Police Constables.

The Legal Use of Firearms.

James Lees White and George Shiell, police constables, were charged, on remand from the previous day, that they did, on March 18, at South Town, feloniously slay John Jeremiah Considine.

The jury, which earlier in the morning had been driven to the scene of the tragedy under the charge of the Deputy-Sheriff ( Mr. G. A. Mills ), was brought into court at 10 o’clock.

His Honor said the jury would understand that the question they were now trying was one of manslaughter ; the Crown did not bring the prisoners up on the murder charge.

The question was whether on the whole of the evidence, subject to the law, the prisoners, or either of them, were guilty of the offence. Manslaughter was the unlawful slaying of a human being. The case was one of enormous importance both to the prisoners and the community, and also the police force of the colony. He was glad to find from the evidence of Sub-inspector Johnston that it had not been found necessary to cause the police here to habitually carry firearms. The unfortunate necessity becomes only justifiably resorted to in cases where there were men so degraded and villainously murderous as to be prepared to take the life of the police simply because they were police, and treated them in such a manner as to endanger life. The police were bound to protect our liberties at the risk of their lives, but were also given the power to protect their lives just the same as private individuals. They must be treated in the matter of self defence just as private individuals. The police had a perfect right to take the life of a person if necessary to do so in defence of their lives; but only in case of necessity. Here it was important to consider what “necessity” was. It was not merely a necessity appearing to the mind of an excitable man, but such a necessity as would appear to persons in the calm contemplation of the matter. A man was not excused because he had taken fright and thought he was going to have his life taken. Whether life was taken by a policeman or an ordinary civilian, the law invariably held a careful and jealous investigation as to how it was taken and whether the circumstances were such as to justify the taking of life in self-defence. Under the strict interpretation of the law; ” justification” was not a proper term. All the law did was to “excuse” a man who took the life of a fellow creature in self defence.- In this case he had no doubt that the jury would have full regard to the point he had drawn their attention to, i.e., that the only ground on which a man could be excused in taking life was that it was done from an absolute or clearly apparent necessity.

And that necessity must be this : It was not sufficient that the accused himself should think it was necessary, but he must think so reasonably and justifiably. The jury had a difficult task to determine whether the circumstances were such as to make it reasonably necessary for a man to take life in his own defence.

The law was not otherwise in regard to killing in the execution of duty by an officer of justice. Bearing that in mind, they would have to deal with this difficult case like others of a similar character. With regard to the matter of self defence, he did not think the question was really raised on the part of the prisoners.. He did not think it was set up that the killing was done by them in necessary self-defence of themselves. It appeared that the prisoners had from the first stated that .they did it in order to effect the arrest of a felon endeavoring to escape from them. As to the evidence of the witness Pound, he had to draw attention to the fact that what White stated to Pound was not evidence against anyone but White himself ; it was not evidence against Shiell. Nothing one prisoner said in the absence of the other was evidence against that other. It was necessary that the jury should also consider, although the excuse was set up of having taken life in endeavoring to apprehend a felon, whether in fact the object was to retaliate for injuries already received by the constables. If it was retaliation, the law made no excuse whatever. The law made this much allowance, that if a man was severely injured, and whilst still in hot blood seized a weapon and took the life of the person who attacked him, it would not hold him guilty of murder, but of manslaughter of a high character – of a very aggravated kind indeed. It was, therefore, a matter of the most serious importance to consider whether they were satisfied that Pound had given the proper statement of what took place, or whether White was doing so. Pound stated, if they recollected, that the prisoner said to him after the shooting took place, that he had shot Considine; and when Pound asked why he had done so, White replied, “If he had done to you what he did to me, you would have done the same.” Did the jury believe that Considine was shot because of the injuries which he caused to White? If they did so, he would be guilty of manslaughter of an aggravated kind. If he had taken firearms when cool and took life he would be guilty of murder, but if he did it in a time of excitement he would be guilty of aggravated manslaughter indeed. The law would admit self-defence, but not retaliation of any kind. Retaliation involved punishment, and.the law; insisted that punishment should be left to the proper courts of justice and should not be placed in the hands of private individuals or persons other than courts of justice. A good deal depended on what the jury thought of the evidence given by Pound as compared with that given by White. White alleged that he said, “If you had been placed in the same position as I was you might have done the same,” which bore no indication that he acted under feeling from injuries received. They must be very careful in regard to the recollection of witnesses, as witnesses very often differed as to the exact words used. The words were of very great importance in this case, and the jury must be convinced beyond reasonable doubt that they were used. In approaching the consideration of this case he had no doubt that they would do so with a judicial mind, setting naught down in malice and extenuating nothing except by the evidence; that they would neither show favor to the prisoners because they were constables, nor entertain feeling of any kind against them. The well-being and liberty of members of the community required that constables and police officers in general should be supported in the proper discharge of their duty, and the well-being of the community also required that they should be restrained from the excesses of that duty. He had told them that manslaughter amounted, not to the killing by malice prepense, but to killing without lawful excuse. Every killing was presumed to be murder unless from the circumstances it was reduced either to manslaughter or excused as homicide. The fact that a man was killed raised the prima facie presumption that he had been murdered. The jury would have to be satisfied beyond reasonable doubt that the Crown case was proven ; they would be required to have that certainty which would influence them in their personal affairs. Here he would draw their attention to the rules which had been put in in evidence in this case : the rules given to the constables as regulating the performance of their duty. If these rules were contrary to law they would not justify a constable in acting under them ; but they were, when taken as a whole, a fair condensation of the general law with regard to the use of arms by the police. They were not like an act of Parliament, in which each clause might be taken by itself .and have the force of law. When taken as a whole and considered as the advice given to constables as to what the law was, they might be taken to be fairly correct ; but they were not to be taken clause by clause. One part of the rules must be taken with the other. He considered that very great caution should be given to officers with regard to acting under the regulations : they must have regard to the whole of them as a whole. One part might seem to justify the police in using firearms, and yet another part might restrain them ; and they must act under the part which would restrain them. In rule 90 it was very properly laid down:- ” If a constable endeavors to apprehend a person who has committed a felony, whom he is by a proper warrant authorised to apprehend for a felony, and such person flies knowing the intention to arrest for such felony and with a view to prevent such arrest; he may be lawfully killed provided he cannot be otherwise apprehended.” The duty of a constable was to apprehend but not also, as it would be made to appear, to apprehend the person the instant he saw him. He was not justified in shooting a man down because he was running away unless it appeared to him that the person would fully and wholly escape unless he did so. ” At what particular period of a struggle or pursuit the impossibility of overtaking the person son flying becomes manifest must depend upon the circumstances of each case.” That was perfectly correct, and should be most carefully borne in mind. It had a most important bearing on this case, and was perfectly correct law. ” If the constable is better mounted than the person he is endeavoring to arrest, or the place where the parties are is such that assistance is likely to be obtained before the escape can be fully accomplished, or if in any other way there is reasonable ground for supposing that the arrest can be accomplished in that particular pursuit, the officer ought not in any of these cases to take life.” It was not to be supposed that a constable could shoot a felon who refused to stop when called upon. He would draw attention to the words immediately following those quoted: ” He is not, however, bound to let a felon or person whom he is authorised by warrant to arrest for felony escape from him because he may have reason to think that he can find him easily at some other time.”. That did not mean that if the man tried to get out of his sight he was entitled to shoot him ; it meant that he was not authorised to let him escape altogether rather than shoot him. If there were reasonable grounds for supposing that the arrest could be accomplished in any other way the officer should not take life. That would be the most difficult part of the jury’s duty. Rule 90 said : ” It is his duty to arrest the person whom he is so authorised or commanded to arrest as soon as he sees him, and if he cannot overtake him he may kill him.” Taken by itself this paragraph was not true. It was not the duty of a constable to apprehend a person as soon as he saw him, or shoot him. It was certainly his duty not to allow the man to have an opportunity of getting away altogether, even if compelled to take life. A man charged with an offence was bound to give himself up to the officers of justice when called upon, whether guilty of the offence or not. He drew attention particularly to this clause because, although in certain cases, it should br understood by the police that it did not justify them in shooting a man as soon as they saw him if he did not surrender, although in certain cases that shooting might be justifiable. If a constable caught sight of a bushranger in the bush, and called upon him to surrender, and did not have sufficient means of preventing his escape, the officer would be justified in shooting him and killing if necessary. The man would in that case bring it on himself by not surrendering when called upon. Common sense showed us this : a man must not set the law at defiance ; he must submit when called on and allow the case to be investigated. The rule further stated :-” Constables ought in all cases to be extremely cautious in resorting to extreme steps, but when necessity occurs they must perform their duty, and the law will protect them. Should the officer be resisted and his own life placed in jeopardy he may then kill, not for the purpose of preventing an escape, but in self defence.” There was only one other part of the rules to which he would refer. In the 89th section it was stated that there must be an apparent necessity to which the constable is reduced in arresting or detaining a felon before using firearms. ” Apparent ” sometimes meant ” seeming ;” but the 95th section of the rules would show that was not what was meant here. The section in question stated that ” the importance or necessity of this proceeding must be dearly apparent.” Apparent had there its proper meaning : not ” seeming ” but ” clear.” The law which applied on this ground required a policeman to do his duty even if it was necessary to take life, and it held him harmless in such cases. He would now proceed to the matter of the case before him. Was Considine killed ? How was he killed ? and by whom ? Was he killed by the two prisoners or either of them, both of them acting for a joint purpose at the time ? The prisoners had set up the defence that they were acting together and killed to prevent escape. The Crown did: not seem to dispute that a felony had been committed by Considine. The question was, Were the prisoners endeavoring to apprehend Considine after he had committed a felony in order to bring him to justice ? Or did they endeavor to shoot him because he struck them and injured them, and they were smarting under the injuries ? If the latter they were not justified in law. As he said before, the contradictory evidence on the point affected the prisoner White alone, That depended on whether they believed the exact evidence of Pound, or whether they thought the statement by White, that that was not the exactly correct expression, was to be, preferred. They must be satisfied that Pound’s recollection was correct before the evidence could act in any way against White. Even if they were satisfied that the words used by Pound were the words used by the prisoner White then the evidence did not seem to be sufficient to warrant the conclusion that the killing was done while smarting from injuries, and not for the purposes of apprehension. A prisoner might give as faithful evidence as a man who was not a prisoner. Two stories had been set up in this case. In the first place it was alleged that there was a scuffle in the early part of the case, which scuffle was not directly material in arriving at a conclusion. At the same time the facts might throw light on the subsequent scuffle, which was material. It was not contended that the first scuffle constituted a felony. A felony was committed when actual bodily harm was inflicted ; and if bodily harm was inflicted by Considine in the first scuffle he was a felon, and the police were justified in apprehending him when he came back. When Considine came back on the second occasion he committed a felony and justified the constables in apprehending him and even in taking his life if necessary in order to prevent escape. If Considine had nothing in his hand when he struck the prisoners, as stated by witnesses, how came the mark which were on the coat and cap, and how were Shiell’s rib broken and White’s head injured ? He had no doubt they would believe the evidence of the doctors, and it was for them to say whether the prisoners’ evidence, which was consistent with the doctors, or that of Crown witnesses, which conflicted, was the more reliable. Unfortunately for the prisoners, it was not this question alone which had to be tried. It was not a question whether Considine had an iron bar in his hand or not ; that might be a question if the accused were charged with murder. That question did not arise here, where the accused were only indicted for manslaughter. Supposing every word told by the prisoners was true, had they reasonable grounds for believing that it was impossible to prevent the escape of Considine without shooting him ? The offence was a very serious one even in its mildest form. This case was a precedent ; a good law in this would be good law in others. It would never do to lay down the rule that members of the community might be shot down by the police merely because they thought they could escape. On the other hand they must not discourage officers in the discharge of their duty in preventing the escape of felons. .It was for the jury to decide whether the prisoners had acted honestly and under a proper view of the circumstances. His Honor then reviewed the evidence at length. The evidence of John McLennan, the first witness, detailing the preliminary scuffle with the police, was merely introductory. The witness Wake, who was aroused by the noise of the scuffle, was to the effect that Considine and his companions were under the influence of drink. The witness stated that Considine pushed one of his companions who asked him to go home, but would not swear that he had knocked him down. He, however, said he saw a man lying on the ground 9ft. from the window, and from the rest of the evidence it seemed that this man must have been McLennan’s brother. With regard to Hegarty’s evidence, there was an important matter testified to by him and other Crown witnesses which the jury would have to consider seriously. This evidence was that the constables, when they saw Considine had escaped after the first scuffle, said, “He’s gone now; well summons him.” That might lead the jury to suppose that the constables knew that Considine would not attempt to escape, but on the other hand, they must consider that Considine had not then committed the more serious offence of assault on the police. The remark might lead the jury to the implication that the police knew that Considine would not attempt to escape; and that might very seriously affect their consideration of the question whether the police believed that Considine would endeavor to escape after committing the more serious assault. The witness Carney had given very strong evidence, and it was for the jury to consider whether they would credit the whole of it. The general account given by him was similar to that given by the constables, but it differed materially in important details. Carney said he did not see Considine hold up his hands to Shiell in a threatening attitude, as deposed to by the accused ; and he said that Shiell struck the first blow with his baton. If the constables’ story were true, and Considine came at Shiell in a threatening manner, the latter would be quite justified in striking him first.. Then Carney’s evidence differed from the constables’ in that it stated that Shiell ran away after the assault. It was for the jury to say whether the constables’ story was not more consistent with the doctor’s evidence that Shiell’s rib was broken. A man with a broken rib would not be able to move quickly. If the jury believed that Carney had not told the truth on this point, and did not credit his evidence where opposed to that of the police, it might materially affect their verdict. Carney also differed from the police as to the distance the accused were from Considine when they fired at him ; but a mistake might easily be made as to distances. Carney also denied hearing Considine say, when the police called on him to stop, ” I’ll do you,” or ” I’ll do for you.” If they believed, the evidence of the constables on this point, it might be held to justify the police in shooting Considine, especially if they found that the accused believed Considine to be a powerful man, dangerous in drink, and that there was a probability of his escape. The evidence as to the firing of the shots, was immaterial. The question for the jury was, Did the constables fire at Considine with a common intent ; and if so, was that intent justifiable or not ? It was for the jury to say whether they believed Carney or Shiell as to Considine approaching the latter in a threatening attitude and as to the latter running away ; and if they believed the doctors’ evidence as to Shiell’s injury, the evidence of the constable on the latter point was the more reliable. The evidence of O’Leary and other companions of Considine was much the same as Carney’s and he need not go into it fully. The doctors’ evidence showed clearly that a felony had been committed by Considine, and believing that, the jury would probably consider the evidence of the constables on that point as matter of truth. If they found that a felony had been committed, the other most important point remained, Was it necessary to shoot Considine in order to effect his arrest ? Then they must consider the other important point whether the constables went with their revolvers for the purpose of apprehending Considine and bringing him to justice or, in the passion of the moment, to retaliate on him for the injuries.he had inflicted on them. With regard to that there was the most important evidence of the witness Pound, but it only told, against White.

Mr. Edgar : There is Ohlssoo’s evidence also.

His Honor said he would read the evidence, Ohlsson said that White remarked to him just after the affair, ” I have just shot Considine – the brute.” That was no doubt relied on by the Crown to show that White had acted in the heat of passion. But it was only human nature that a man – and a constable was, after all, only a man -should be angry under the circumstances. He could hardly have been otherwise after receiving such a blow as the evidence showed he had received. White had not denied using the remark.

Mr. Moriarty : He Bays he has no recollection of using it.

His Honor said White might have used the remark, not knowing that Considine was dead at the time.

Having gone through the whole of the evidence – as will be reported in length in the Second Edition – the jury retired precisely at 12 noon.