How a North Walsham man played key role in historic murder trial

North Walsham man Robert Cubitt as portrayed by actor Eoin Geoghegan in The Queen v Patrick O'Donnell

North Walsham man Robert Cubitt as portrayed by actor Eoin Geoghegan in the TV drama-documentary The Queen v Patrick O'Donnell - Credit: Contributed

A North Walsham man played a "central role" in an Old Bailey trial which resulted in the hanging of an Irishman now argued to be a victim of a miscarriage of justice. 

Robert Cubitt, the son of an ironmonger who lived at King's Arms Street, was a key witness at the 1883 trial of Patrick O'Donnell, of Donegal, who was accused of the murder of James Carey. 

The North Walsham man and his brother Frank were on the same voyage where O'Donnell shot Mr Carey off the coast of South Africa as he secretly attempted to flee into exile. 

Patrick O'Donnell

Patrick O'Donnell - Credit: US Library of Congress

The Cubitt brothers had been hoping to find business opportunities in South Africa when they encountered the crime, which O'Donnell argued was killing in self-defence. 

And newly discovered evidence from an archive file closed to public scrutiny for over 100 years has helped unravel the full story of the murder case which drew the attention of Queen Victoria, Prime Minister Gladstone and the US President Chester Arthurs. 

The evidence from a British Home Office file, revealed in a newly published book and Irish TV drama-documentary, both entitled The Queen v Patrick O’Donnell, suggests that an Old Bailey judge, Mr Justice Denman withheld crucial information in court.

This information is believed to have indicated the jury believed the killing was "without malice aforethought".

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Robert Cubitt remained for some time at the Cape with his brother but returned to England when no suitable business opportunity had been identified.

He told the Old Bailey that he had met with an accident in an explosion that took place a few weeks earlier and revealed his brother had died.

The Norfolk man told the Old Bailey trial: “I saw O'Donnell standing on the docks at the side near the Melrose. I said to him ‘have you seen the portrait of Carey?’ I produced it, and showed it to him.

"He said ‘I will shoot him’. He asked me for it, and I think he put it in his pocket. He went on board the Melrose, and I believe she sailed about a quarter of an hour later”.

O’Donnell’s defence team later argued the killing of Mr Carey was not premeditated and when Mr Cubitt gave O’Donnell the portrait of Mr Carey, the "prisoner was smiling" when he said he would shoot the informer.

And The Queen v Patrick O’Donnell reveals evidence found by author Seán Ó Cuirreáin which suggests that Mr Justice Denman misled the court, including the defence and prosecution teams as well as the press.

Mr Justice Denman

Mr Justice Denman - Credit: National Portrait Gallery

He amended and misrepresented the wording of a direct question from the jury which showed they were inclined to believe the killing was ‘without malice’.

The actual question posed by the jury which was not read to the court is included in a file on the O’Donnell case in the British National Archive which was ordered to be "closed until 1985".

Mr Ó Cuirreáin said: "It is highly significant that the judge misrepresented the jury’s question, withheld it in court and replaced it with an unasked question of his own.

"This was a critical deflection by him which left the defence team in the dark and paved the way to a guilty verdict.

Sean Ó Cuirreáin's The Queen v Patrick O'Donnell book cover

Sean Ó Cuirreáin's The Queen v Patrick O'Donnell book cover - Credit: Contributed

"The suggestion that the jury sought the judge’s approval for a verdict that the killing was without malice and the distortion of their legitimate query was, in fact, a matter of life or death for O’Donnell." 

The author added that Mr Cubitt played a "central role in this sensational and high-profile case". 

He said: "Had he not shown O’Donnell the sketch which identified Carey as the informer shortly before they were due to sail from Cape Town to Durban, then the Donegal-man was highly unlikely to ever establish the true identity of his new companion." 

A sketch of James Carey in The Weekly Supplement 

A sketch of James Carey in The Weekly Supplement - Credit: National Library of Ireland

That one act by Cubitt “inadvertently sealed the fate of both men, led to the shooting of one and the subsequent hanging of another”, Mr Ó Cuirreáin said.