The Trial of Robert Butler

The New Zealand Railways Magazine

April 1, 1933

In the year 1880 the city of Dunedin had less than half its present number of inhabitants but relatively, on a population basis, held a higher position among the principal cities of New Zealand than it does to-day.

In that city there appeared to be no happier married couple than James Murray Dewar and his young wife. They had been married about eighteen months, and there was one small infant of the marriage. In the centre of a cluster of houses in Cumberland Street lay a tiny cottage, the happy home of the Dewars. There Dewar had begun and was enjoying his early married life. By occupation he was a butcher, and in March, 1880, was employed by a Mr. Howard, a master butcher.

About 3 o'clock in the morning of Sunday, the 14th March, 1880, James Robb, who lived opposite the Dewar cottage, was awakened by his father. Robb was a volunteer fire brigadesman, and his father had noticed fire coming from the tiny home of the Dewars. He rushed across the street, but found the door closed and could get no reply to his shouting and knocking. He opened the back door. Unable to withstand the dense smoke that assailed him, he dropped to his knees and crawled on his hands and knees to the bedroom. There his attention was attracted by some groans. He groped towards the sound, and soon dragged out to safety the body of a woman. It was Mrs. Dewar. Into the house Robb dashed again, and soon succeeded in putting out the flames. On the bed he found Dewar lying with a ghastly fatal wound in his head. Near the bed was an axe covered with the blood and hair of the victim. Robb returned to Mrs. Dewar, whom he found also suffering from head injuries. He called in Dr. Niven, who ordered the removal of Mrs. Dewar to hospital. That night the unfortunate woman died without recovering consciousness. In addition to these two victims, Robb found the body of the baby in its cot, though there were no external signs to shew the reason of its demise.

The horror and excitement that swept through Dunedin was unprecedented. Men and women were in deadly fear in case the murderer should pay them a visit.

The whole town seethed with excitement and rumours were rising every hour. They relaxed only when Robert Butler was charged with the crime. Prior to the murder Butler, who had been discharged from gaol, called on Inspector Mallard, of the local police force. By Mallard, he was advised where he could most likely get work. He refused to go harvesting, saying he was unfit for manual work.

While talking to Inspector Mallard, Butler spoke of some famous criminals, including Charles Peace and Scott. He assured the Inspector it would be an easy thing to hide all traces of a crime by means of fire. He also said to the Inspector: “Supposing now you were to wake up one morning and find some brutal murder committed, you would at once put it down to me; would you not?” The Inspector said “No, Butler, certainly not. The first thing I should do would be to look for suspicious facts and circumstances, and most undoubtedly, if they pointed to you, you would be looked after.”

It was not long after the discovery of this crime, however, that Butler was looked after, and his arrest was effected by two police constables at great risk of their own lives. A suspicious looking man had been going towards Waikouaiti, and it was not known who it was, but the constables in the nearest locality were warned to arrest on suspicion. If necessary, they would have arrested the man on the ground of being a rogue and vagabond.

The two constables, Townsend and Colborne, noticed the suspected man go into the bush. Constable Townsend followed him and asked where he had come from. The man said “Waikouaiti.” Colborne approached the man from a slightly different angle, and then the man whipped out a revolver and pointed it at one of the two and then at the other. He was rushed before he could fire the revolver, and the suspected man was later found to be Robert Butler alias Donnelly alias Medway alias Lee. Then the police set to work and built up a remarkable series of circumstances, relied on subsequently, to sheet home the foul crime to Butler.

He was subsequently charged with, and tried in the Supreme Court at Dunedin for the murder of Dewar. The trial was before Mr. Justice Williams and jury of twelve. Mr. B. C. Haggitt prosecuted for the Crown. In spite of pressure from the Judge to engage counsel Butler insisted on defending himself.

Ordinarily, to defend oneself is a grave handicap, for a layman cannot hope to extract, effectively, satisfactory answers from the Crown witnesses in cross-examination. In addition to this, expert judgment is so necessary to determine the best line of defence, and finally, the capacity to address the jury is essential. All the disabilities would be even graver in the case where the prisoner's life depended on the successful defence. The only advantage likely to accrue to a prisoner on his undertaking his own defence is that the Judge would be extremely careful to protect the prisoner from any unfairness in the trial.

Butler must have known this, for at the end of the opening speech of the prosecution he humbly asked the Judge's leave to ask him something. This is what he said: “You said just now that you were sorry I have not had counsel to defend me. Whilst the adage says ‘The man who is his own counsel has a fool for a client.’ I can only say there is another, which says that ‘Thrice armed is he who has his quarrel just.’ I have to ask your Honour's assistance and beg that you will not allow any irregularities to go against me.” To this the Judge said: “Certainly I shall take care that you have fair play. I do not think that the Crown will press unduly against you; but if there is anything that you would wish brought out—any points that you think are in your favour—I shall certainly see that it is done.”

The Crown's case was built up on a series of facts, which all strongly tended to show guilt on the part of Butler. It was proved that two days before the murder Butler changed his residence and went to stay at the Scotia Hotel, at the corner of Leith and Dundas Streets. On that day he was wearing a suit of clothes described at the trial as dark lavender with a small check on it. He had a blue top coat and a white muffler, and he wore a moustache. On that Thursday night, the 11th March, 1880, he slept there, and was in the hotel most of the next day. He went out on the Friday night, leaving his top coat and muffler and a parcel behind. He did not return that night, nor was he seen at all at the hotel on the Saturday.

About 6 a.m. on the morning of Sunday, 14th March, when a hotel servant, Sarah Gillespie, opened the hotel door, Butler entered. He was then wearing his lavender coloured suit. Sarah Gillespie said that he appeared restless, excited and pale, and afraid as if someone was coming after him. Shortly after he entered he went out again with the parcel, which he had left in his room two days before, under his arm. He was wearing his overcoat, she said, buttoned up to his neck. He went out to the path, looked up and down the street, and re-entered the hotel, where he drank some beer. He told the barman that he had had no breakfast that morning. He was seen to walk to the store at the corner of Dundas and Cumberland Streets. He knocked at the door, as the shop had not been opened. While he was waiting he stepped back and looked in the direction of Dewar's cottage. A boy opened the shop door, and from him, Butler bought four tins of salmon. From the time he left the store he was not seen again until he was seen at the Saratoga Hotel, at Blueskin, after 10 p.m. that evening.

Other inquiries resulted in the finding, in the town belt, of two tins of salmon of precisely the brand Butler had bought, as well as the lavender coloured suit of clothes. To the Saratoga Hotel the news had travelled of the murder. While Butler was supping he heard the murder discussed. The landlord noticed that Butler became at once restless, hastily finished his meal and left the hotel. He was not seen again till about 3.30 p.m. in the afternoon of the following day, when he was arrested in the manner already described.

An examination of the victims and of their home shewed that the murderer had struck five blows and that Dewar had been killed in his sleep. Mrs. Dewar had tried to get out of bed when she had been struck down. The axe used was Dewar's own axe, which had been taken from the coal cellar. Robbery may have been the original motive of the murderer, for some drawers had been disturbed. Naturally there were spots of blood in the bedroom, and they all radiated from the corner of the room where the head of the bed was. There were curious nail traces from the intruder's boots. The only point that could be got from these marks was that prior to the murder Butler had on his boots, a pair of what was then known as “clumpsoles,” that is, extra soles clamped to the original soles of the boots. After the murder these soles had been removed and were never traced.

When Butler was arrested he was wearing, not the lavender suit, but one quite different. The lavender-coloured one was found, as already stated, and under chemical analysis certain minute spots were declared to be blood marks. Apparently in those days there were not the facilities of proving whether it was human blood. The discarding of the lavender-coloured suit was a point strongly relied on by the Crown, for it was a new suit and in perfectly good condition. Further searching near the spot where the coat was found revealed the trousers, cravat, and hat of the prisoner, which he was proved to have been wearing on 13th of March.

The shirt which the prisoner was wearing when he was arrested was examined microscopically, and tiny blood spots were found which to the naked eye were almost invisible. The Crown medical witnesses denied the explanation the prisoner offered with regard to the blood found on his shirt and suit of clothes. Butler said that he had scratched his hands. The medical witnesses were of the opinion, however, that the spots would have been smeared on, if that were the true explanation. These spots, they said, had been spurted on. This they inferred from their appearance.

One other act of the prisoner was used against him, and that was that he had shaved off his moustache on the day following the murder, in order, the Crown said, to facilitate flight. Butler seems to have an overwhelming conceit of himself, for he told Detective Bain, a few days before the crime, that if ever he broke loose again he would be “one of the most ferocious tigers that was ever let loose on a community.”

All the facts on which the prosecution relied were duly established beyond question. The cross-examination of the witnesses was very clever, and anything that could be got from them by inference in the prisoner's favour, Butler extracted. He was, of course, allowed a latitude which, had he been defended by counsel, would never have been tolerated. He rated the Inspector of Police for having got admissions from him without warning him, and the Judge disapproved strongly of the Inspector's having interrogated Butler as he had.

The Crown's case finished on a Friday afternoon, and Butler was asked if he would like an adjournment to the next day. He took advantage of the extra hours in which to prepare his speech. He called no witnesses, and did not give evidence himself. Next morning, Mr. Haggitt did not trouble to address the jury. Perhaps he thought the case was so strong that it was unnecessary. Butler then began one of the most remarkable addresses that, surely, has ever been delivered. He spoke for six hours, traversed the evidence in detail, and offered a plausible explanation for every point relied on against him. He began by reminding the jury that the evidence was purely circumstantial. He reminded them that the police had followed no clue but those directed to catch him, and he told them how the onus of proof was strongly on the Crown. Cleverly he referred to the fact that he had relied on his own poor ability to defend himself, and that at that late stage in the trial he admitted how foolish he had been. How easily, he pointed out to them, a clever counsel could have torn the evidence to shreds. It was a clever answer, designed to lead the jury to extend much clemency towards him.

After referring to the two adages he made use of at the beginning of the trial with regard to defending himself, he added two more, in these words: “Another proverb occurs to me now which is as apt as the others. ‘It is easier to attack than to defend,’ and against this, I will try to console myself with another old saying which is, ‘God defends the right.’ Gentlemen, I shall endeavour to rest upon the force of truth alone.”

He implored them not to let their horror of the crime affect their calm judgment. He wanted to know how the landlord of the Saratoga Hotel could be sure that he had heard the conversation about the murder. He said that if he had been the guilty man he would have got rid of his shirt, too, because some of the spots of blood could be seen on a careful examination, and surely he would have been more than anxious to look carefully. He ridiculed the police theory. He said he left hurriedly because he knew he was suspected for a burglary the night before at the house of a Mr. Stamper. Apparently he admitted this act.

He ridiculed Gillespie's impression that he looked frightened on the ground that she had already heard of the murder an hour or two before, and suggested that she was perturbed and emotional. He remarked that another witness, who saw him soon after Gillespie had seen him, spoke of him as being quiet and that he did not appear frightened. To give one or two examples of his plausible reasoning, he referred to the incident of his going to a store for the four tins of salmon. The Crown claimed that he stepped back to look towards the little cottage of the Dewars. He said he knocked at the door, and getting no ready reply he stepped up the street looking for another shop. He denied that he left the Scotia Hotel after the murder with his top coat buttoned to the neck, and pointed out that there was no button at the neck of the coat. He also said that when he was arrested he referred to the burglary at Stamper's. This was denied by one police officer, but admitted by two others. He remarked that if he had committed the crime of murder he certainly would have prevented, by the use of his revolver his own arrest.

He shewed that the condition of the cottage was really indicative of the fact that the crime was perpetrated, not by a burglar, but by an enemy of Dewar. He shewed that it was a most unlikely place for a man in his position to have gone. He was a complete stranger to Dewar, and had only been in Dunedin three or four weeks. He concluded by recapitulating his answers to each of the theories of the prosecution, and told the jury that while his was a terrible position so was theirs. His last words to the jury were: “Finally, one word more, I stand in a terrible position; so do you. See that in your way of disposing of me you deliver yourselves of your responsibilities.”

The Judge, in his summing up, admonished the jury to harken only to what they had heard at the trial; warned them against so-called public opinion, but told them to convict if they felt constrained, on the evidence, to do so. He agreed there was no evidence to show that robbery was the motive. He reminded them that although the fact that the prisoner had been out all night shewed that he might have done the deed, so, too, many others might be under suspicion from the same cause. He told them to treat evidence such as Gillespie's with great caution. The Judge made an interesting comment on the police evidence in these words:

“Then we have the evidence of the arresting constables and of Inspector Mallard, and the prisoner in his address to the jury made a remark on the value of the evidence given by a policeman. Well you distinctly understand me, gentlemen, that I do not wish to apply it particularly to the present case. I may say that the remark the prisoner made is one that is found in all the legal text books, ‘That all men are guilty till they are proved to be innocent’ is naturally the creed of the police, but it is not a creed that finds sanction in a Court of Justice. In taking the evidence of the constables into consideration you must take that into consideration.”

The Judge then traversed all the evidence, and construed it by no means unfavourably to the prisoner. He considered the evidence of the blood stains of crucial importance. He said that unless the prisoner's explanation was unacceptable he thought the Crown case failed. His final words were: “If you think there is no other intelligible way of explaining the murder than that the prisoner committed it, then it would be a duty, altogether irrespective of consequences, to find him guilty. If, however, you think either that the evidence does not establish that, and, further, that the evidence does not sufficiently connect the prisoner with the murder or that there are other reasonable ways for accounting for the murder, then—however unsatisfactory it may be to leave a crime of such an atrocious nature undiscovered and unpunished—it will be your duty to acquit him.”

The jury retired and returned in three hours with a verdict of not guilty. So ended one of the most remarkable criminal trials ever held in New Zealand. The outstanding ability and cunning of the prisoner prevailed. Soon after he was convicted of arson of Stamper's residence and served a sentence of eighteen years hard labour. On his release in 1896 he went to South America and thence to Australia. But, in Queensland, in the year 1905, Nemesis overtook him, and under the alias of Wharton he was hanged for the murder of a Mr. Munday in that city.

In the light of our knowledge of Butler's character it may well be that he was the murderer of the Dewars. The jury, however, thought there was a doubt, and properly gave him the benefit of it, thereby upholding the traditions of British justice.

There is a report of Butler's trial published in Dunedin. It gives in full the speeches and the cross-examination of the witnesses, but not in all cases the evidence-in-chief. By the kindness of a friend in New Zealand I obtained a copy of the depositions taken before the magistrate; with this I have been able to supplement the report of the trial. A collection of newspaper cuttings furnished me with the details of the rest of Butler's career.

It was under the influence of such an impulse that on March 23 Butler had met and shot Mr. Munday at Toowong. On May 24 he was arraigned at Brisbane before the Supreme Court of Queensland. But the Butler who stood in the dock of the Brisbane Criminal Court was very different from the Butler who had successfully defended himself at Dunedin and Melbourne. The spirit had gone out of him; it was rather as a suppliant, represented by counsel, that he faced the charge of murder. His attitude was one of humble and appropriate penitence. In a weak and nervous voice he told the story of his hardships since his release from his Victorian prison; he would only urge that the shooting of Mr. Munday was accidental, caused by Munday picking up a stone and attacking him. When about to be sentenced to death he expressed great sorrow and contrition for his crime, for the poor wife and children of his unfortunate victim. His life, he said, was a poor thing, but he would gladly give it fifty times over.