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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. McNaughton and Connor [1813] NSWKR 8; [1813] NSWSupC 8

murder, mens rea - manslaughter - criminal procedure - military defendants in crime - military discipline

Court of Criminal Jurisdiction
Bent J.A., 16-17 July 1813
Source: Sydney Gazette, 17 July 1813
See also: Court of Criminal Jurisdiction, Minutes of Proceedings, May. 1813 to July 1815, State Records N.S.W., 5/1121 - 38[1]

At ten the court assembled, and the usual forms being gone through, proceeded to the trial of Mr Archibald McNaughton and Mr Philip Connor, for the wilful murder of William Holness, on the evening of the 30th ultimo, in Pitt-street.

           The first witness called for the prosecution was Mrs Ann Holness, the widow of the deceased, who being sworn, deposed as follows: That about dusk on the evening set forth, her husband was out, and a young woman named Elizabeth Winch, who was employed by the witness as a seamstress, and lived in the house with her, was walking about her door with one John Brown, a painter. That Elizabeth Winch suddenly entered and said a gentleman had insulted her, and struck Brown with a stick. That witness then heard Brown altercating with someone. Elizabeth Winch went back to the door, and told the person to whom Brown was speaking she knew him to be Mr McNaughton and an officer, although he was disguised in coloured clothing. The witness desired Brown and Elizabeth Winch to go in, which they accordingly did, and witness shut the door. She saw the prisoner, Mr McNaughton there, and the shutter of the window being open, saw the prisoner, Mr Connor, look in, he brandishing a stick or club at the time. That Mr Connor struck the door with his stick several times, and insisting that it should be opened, pushed against it with so much force, that it required every exertion of Brown, Elizabeth Winch, and herself to prevent its being forced in. That the deceased coming to the door at the instant, asked the two gentlemen (now prisoners at the bar) what they wanted there and they replied, that they wanted the two women out of the house, meaning the witness and E. Winch. To which the deceased replied, that one of the women was his wife, and the other her assistant. That the prisoners at the bar made use of very improper language to the deceased with respect to Elizabeth Winch and the witness, who at that moment hearing a blow, opened the door, and was going out, but receded, owing to a second blow, which was intended for her husband or herself, but whom she did not know. She then went out and saw both the prisoners at the bar close to the door, from which the deceased attempted to push them away, and they repeated their blows until the deceased fell, which was in a channel between the foot path and high road, near his own door. That the witness was close to him when he fell. He fell at her feet; and she exclaimed, "but you've murdered my husband!" That after he fell, they repeated their blows, and going to Mr Meutant's paling, which was immediately contiguous to the house of the deceased, began to tear it down, and the witness expected to be laid a corpse beside her husband. That Mr McNaughton, hearing her say her husband was dead, said, "If he is dead let him die and be d--d". That Mr Connor said, "What have I done!" and walked away up the street. That Mr McNaughton walks after him as far as Michael Byrne's which is two doors above the house of the deceased, and shortly returned, came close to the deceased, whose head the witness was then supporting on her knee, and asked for his hat, which some one gave to him, and he walked away. That the deceased never spoke after he fell, and was about ten minutes afterwards taken into the house, quite dead. That she did not see the deceased strike either of the prisoners, and he had nothing to strike them with.

Cross-examined, says, "I cannot say whether he might have struck either of the prisoners or not before I opened the door, but he had nothing in his hand. I cannot say where they struck the deceased, but there were several blows. I did not see any one strike the prisoners at all. After he fell I saw McNaughton tear down Mr Meurant's paling. The deceased had better health lately than he had for some years before. I have been 17 years his wife, and never knew him a day on a sick bed."

           Joel Josephs sworn, says he resides in Pitt-street, two doors from the house of the deceased, and sitting at his own door about seven in the evening of the day set forth, saw Elizabeth Winch and John Brown walking about together on the foot way. Saw two gentlemen come up to them much intoxicated, one of whom took hold of the young woman. One of them, whom he afterwards knew to be Mr McNaughton, took hold of her. She begged he would not take any liberties with her, and went to the door of the deceased's house, where she lived. Brown, as they followed her, interposed between them and the young woman, and said, "Gentlemen, this young woman has no call to you". Can't say whether any other words passed, but saw Mr McNaughton lay hold of Brown, who at the same time received a blow on the neck. Brown then followed Elizabeth Winch into the house, and the two gentlemen remained on the outside, knocking at the door with sticks. The deceased then came up, and asked what they wanted there, and requested they would go about their business, as nobody there wished to offend them. They then made use of indecent language relative to his wife and Elizabeth Winch, which was in similar phrases replied to by the deceased. Some words then passed between Mr McNaughton and the deceased. The deceased then received from Mr McNaughton a blow across the back with a stick, which was broken by the blow. The door of the deceased then opened, and thinks the deceased had a switch or piece of stick in his hand. He then ran into the road and received from Mr McNaughton another blow, with a stick or pale across the loins. Cannot say whether the deceased struck Mr McNaughton or not, but near to Mr Meurant's paling he received a blow on the back of the neck from Mr Connor, which killed him, but cannot say whether it was given with a stick or paling. The deceased fell as he received a blow, and the witness went and raised one of his arms, which dropped in an instant. About a minute and a half after he had fallen, Mrs Holness (wife of the deceased) came out of her house, went and raised his head, and immediately exclaimed that he was killed. Brown then also came out, and a soldier from an opposite house likewise came up. Mr McNaughton was going to strike at the deceased again, and the witness observing this, said, "It is of no use hitting the man, for he is dead". Witness picked up one of the prisoners' hats, and gave it to another person, and afterwards perceived another disturbance at Mr Holness' door, and is certain no one came out of the house of the deceased for a minute after he lay on the ground, and that Mr Connor only struck him once.

           Cross-examined. Did you see the deceased run towards the gentlemen on trial from his own door into the road?

           Answer. I saw him run to the end of Mr Meurant's paling. I saw Mr McNaughton strike the deceased before the latter had a stick, which stick was given to him out of his own house. It was a short stick, and cannot say he gave it to him. He fell about a yard from his own door.

           Elizabeth Winch sworn, says that she was walking with Brown, as stated by the last evidence. That the gentlemen at the bar came up to her, Mr McNaughton habited in a great coat, Mr Connor in a coatee. Perceiving they were advancing towards her, she went towards the door of the deceased, to go in. They ran after her, and Brown interposed between them. Mr Connor struck him with a stick, and went a little distance up the street. Mr McNaughton stopped at the door, talking to Brown. The deceased was absent, having gone to Michael Byrne's with the skin of a curious fish. She told Mr McNaughton she knew him, and that he was an officer in disguise. Brown said to Mr McNaughton that the man who struck him, meaning Mr Connor, was an insolent scoundrel, and he would report him in the morning. Mr McNaughton replied that he was no scoundrel, and a gentleman. To which Brown returned, that whether gentle or simple he would not be offended by him. Mrs Holness and Elizabeth Winch then called him in, and he went in, and Mrs Holness shut the door. Mr Connor came back, looked in at the window, and knocked at the door. The witness asked what he wanted, and he replied that he wanted the woman and the girl, using the same time an indecent expression respecting them. The deceased then came to the door with the fish skin in his hand, and asked Mr Connor what he wanted, in reply to which he, Mr Connor, said he wanted the girl and woman, and repeated the same indecent words, which were returned by the deceased, who also added, that it was his house, and his wife, and requested they would go about their business. They had pushed violently against the door. The witness then heard a blow given with a stick, the door was opened, and the deceased threw in the skin, but did not come in himself. As soon as the first blow was given, Mrs Holness went out leaving the witness and Brown in the house, where was also a man of the name of Williams. Soon after she heard Mrs Holness give the alarm of murder. The witness then went out, and saw Mrs Holness kneeling, and supporting her husband's head on her knee. Mr McNaughton then came up, and asked for his hat.

           Cross-examined, says "I did not hear the deceased ask for a stick nor see any stick given him. I do not know his reason for not coming in when the door was open, further than he was talking to Mr Connor, and never heard him complain of illness."

           John Brown, a painter, sworn, says the deceased was a very quiet man. That between six and seven on the evening named in the information, he went to his house, and was walking about the door with the last witness. That when at the door of Joel Josephs and one Mary Donovan, two homes distant from that of the deceased, two gentlemen advanced towards them, apparently in liquor. That Elizabeth Winch ran homewards, and one of the persons, whom he afterwards knew to be Mr Connor, one of the prisoners at the bar, run after her. That he went up, and walked between the gentlemen and Elizabeth Winch, to prevent her being offended by them, and received a blow on the neck from Mr Connor, of which he, the witness, took no notice, but followed Elizabeth Winch. But when he got to the door of the deceased, where Elizabeth Winch lived, Mr Connor also came up, and the witness asked what they wanted, to which Mr Connor replied, that "he wanted that girl out". The witness then bade him be gone for a scoundrel (not knowing who he was at the time), for no one had offended him. He was called in while Mr McNaughton was talking with him, and Elizabeth Winch coming to the door, said, "Mr McNaughton, I know you, you are an officer in disguise", on hearing which, the witness said, "Mr McNaughton, I did not address myself to you", and added, that he would report the other person's conduct next morning. The witness on a second request went into the house, and the door was closed and locked by one of the women. Mr Connor continued on the outside knocking with a stick and endeavouring to push the door open, which was opposed by himself, Mrs Holness, and Elizabeth Winch, pressing against it from within. Meanwhile the deceased who was out, came up knocked at the door, and asked what the persons on the outside wanted there. Mr Connor replied that they wanted the woman out, and the deceased told him that she was his wife. The door was opened by Mrs Holness to let her husband in, and Mr Connor repeated the indecent language to him relative to the two women, which the deceased returned, and put his hand on Mr Connor's breast to push him from the door. Mr Connor then struck at the deceased with his stick, but the witness could not say whether he received the blow or not. Mr Connor struck again and the end came in contact with the door facing. The deceased then went into the street with the two gentlemen at the bar and the witness remained with the two women in the house. Mrs Holness then also went out and closed the door behind her, and in a few minutes gave the alarm of murder, on hearing which the witness immediately went out, and saw Mrs Holness with the deceased in that position already described. Near the spot where the body lay, several people were upon the ground and Mr McNaughton amongst them, uppermost. He asked for his hat. There were at this time about 12 persons intermingled, most of whom appeared to have sticks in their hand. Mrs Holness requested surgical assistance to be called, and Mr Ross, surgeon of the Fortune, being near the place, heard the affair and conveyed the summons.

           The witness upon his cross-examination said, that the deceased never entered the house. He saw no stick given to him though he might have asked for one, and such might have been given to him without the knowledge of the witness. He did not see him strike at either of the gentleman at the bar. Mr Connor had a stick when the witness first saw him. The deceased had some time before complained of a pain in his side.

           Question from the prisoners at the bar. Did you strike the deceased that night?

           Answer. Never. I might in sport have done so at other times, but that night I did not.

           Question from the court. Did you strike either of the prisoners at the bar that night?

           Answer. No, I did not. I was not out of doors from the time of my first going in till Mrs Holness, and her husband was killed...

           [The evidence of Mary Donovan and Hector Peisly, private in the 73rd Regiment was then admitted.]

           ...D Wentworth, esq., Principal Surgeon, being called upon, stated to the court that he had seen the body of the deceased on the night of his death, and with other gentlemen of the faculty had attended the next day, when it was open, and examined with every care and attention possible. That no external marks of violence appeared whatever, but a trifling hurt upon one of the elbows. That on examining the head, there was no fracture in the skull, nor any mark or injury to the brain, which was in a sound and perfect state. The cavities of the abdomen and thorax were also free and clear, but on examining the lungs, a very considerable effusion of blood had observably, issued from both lobes, which effusion was sufficient to occasion instant death.

           Question by the court. As a medical man, sir, to what can you attribute the effusion of blood you perceived to have issued from the lungs?

           Answer. I cannot say.

           Question. Is it possible that such a blow should be given as to occasion death, without leaving some external mark of violence?

           Answer. I never saw an instance of it myself. Mr Wentworth stated in addition, but as Superintendent of Police he had seen a part of a paling found near the spot, and with which the mortal blow was suspected to have been inflicted, but was of opinion, that if such had been the case, the weight of the paling was such that it was more than probable there would have been external marks of violence discernible. There were cases on record of persons dying suddenly from excessive agitations of the wind, and he would not venture to say it was impossible death might proceed from a blow without leaving external marks, but he had never himself known any case of the kind.

           Mr Martin, Assistant Surgeon of the 73rd Regiment, who assisted in examining the body, corresponded in testimony with Mr Wentworth, further stating it as a matter of opinion, that he did not conceive it at all probable that a blow so violent as to occasion death should leave no mark whatever visible. So violent a blow on the back of the neck must, as he considered, had injured the spine, which was not at all the case. He had never known an instance of the kind, and such was his idea of its improbability, that he really could not credit such an occurrence, unless it should come within his personal observation, and he should in the present case incline to attribute death to a spasmodic affection of the heart, produced by violent passion, rather than to any other cause.

           Mr Ross, surgeon of the Fortune, who was also present at the examination of the body, coincided generally in the opinions of the former gentlemen, stating in addition that he considered it utterly impossible for a blow to be capable of causing so great an infusion of blood in the lungs, to be inflicted without laying evident marks of violence.

           Mr Luttrel, Assistant Surgeon of Parramatta, coincided in opinion generally with the other gentlemen, and cited a case at some length where sudden passion had produced sudden death, and here the evidence for the prosecution closed and

           The prisoners at the bar being called upon, proceeded to their defence.

           Mr McNaughton stated, that going up Pitt-street, in company with Mr Connor on the evening set forth in the information, they saw Brown and the young woman. That upon mildly accosting the latter, Brown rudely desired them to be off, and so rudely thrusting his hand against Mr Connor's breast, that gentleman fell. That the deceased came up at the instant with a large stick in his hand and struck Mr Connor. That Brown knocked him (Mr McNaughton) down. That he, Mr McNaughton, had no stick with him, and suffered much ill-treatment from Brown and the deceased, any act that could in any wise occasion the death of whom he utterly disavowed.

           Mr Connor's defence was in its narrative nearly similar, with this additional circumstance, that he had no stick, but a part of one that he had himself been first struck with.

In support of their defence, John Delany, being sworn, deposed, that he was present during the whole transaction, which was as follows. He was on the roadside between Mr Holmes' house and that of the deceased, and saw Brown and Elizabeth Winch walking together, and saw two gentlemen passing by the door of the deceased. Saw Mr Connor speak to Elizabeth Winch, at which Brown took offence, and taking her by the arm, put her into the house, telling Mr Connor he was no gentleman, and shutting the door in his face. Mr Connor put his cane against it to push it open. The deceased then came up and by his order the door was reopened. He asked what was the matter. Mrs Holness told him what they wanted. He immediately made a very rude and indecent exclamation, and threatened violence if they did not instantly depart. Mr Connor stepped aside and made a blow at the deceased, and struck the facing of the door. The deceased went into the house a little way, and in a rage brought out a stick, or some other weapon, and opposed himself to Mr Connor into the street. Brown followed him and struck at Mr Connor, whose stick flew out of his hand, or was broke by the violence of the blow made at him. Having lost his stick, he endeavoured to take hold of the deceased, but was by him and Brown together knocked down. Mr McNaughton, seeing two men berating him, went to his assistance, and he, Mr McNaughton and the deceased, attacked each other. Mr Connor recovered himself, and went away, and Mr McNaughton was then knocked down by a blow of the stick which the deceased had. They collared each other and Mr McNaughton received another blow on the head from Brown. A number of persons were at this time collected, and dealt out several blows on both sides. A phrase passed among them, namely, "Don't strike him, this is the man", meaning Mr McNaughton, as the witness imagined. Several soldiers then came up, and an alarm being given that the man was dead, most of the persons engaged ran away. He afterwards saw Mr Connor by Holmes' paling. He never saw Mr Connor strike a blow, but heard him exclaim, "don't kill me".

           Cross-examined by the court, says he is a free man and he is employed at the General Hospital. That he related the circumstances next morning to a person, whom he named. That he went out before the Coroner's inquest, and did not know of its assembling till the day after its sitting. That he lived quite close to the house of the deceased and was afterwards told the inquest had been held at Mr Inch's which he said was four or five hundred yards from his own dwelling. Knew none of the persons who were present during the affray, but Brown and the deceased, whom he only knew by sight (one Murray excepted) who was with him at the time.

           Here an evidence was called to prove that the Murray above alluded to had next day affirmed being present at the affray in company with the foregoing witness.

           John Murray called and sworn, says that he was with Delany and saw one of the gentlemen at the bar accost Elizabeth Winch, on which Brown the painter, who was with her, made an unmannerly remark, from which the dispute originated. That he then [clapt] the door to with violence to the face of the gentleman, who said if he had him out he would cane him, and made several pushes at the door with his stick, after which he was going away. That the deceased then came up and knocked at his own door, which being opened, he went in. One of the gentlemen then returned and said if he had him out, meaning Brown, he would cane him. The deceased made use of some very vulgar expressions to the gentleman, upon which Mr Connor struck at him, but only struck the top of the door case. That the deceased went in and quickly returned with a stick in his hand. That he followed Mr Connor into the middle of the road, fighting. That Mr Connor's stick was either broke, or knocked out of his hand, upon which he closed in with the deceased, who getting Mr Connor down, some blows took place. That Mr McNaughton advanced to the place where they were engaged and struck the deceased. That Mr Connor got up and went away, but shortly returned to Mr McNaughton, and from thence went to get a paling from Mr Holmes', but witness did not see him use it. The witness further stated that he picked up Mr McNaughton's hat and gave it to a soldier, and heard afterwards that man was killed. That he saw Brown there at the latter end of the affray, with a stick in his hand. He came out of the house while the deceased was fighting, and before he was killed. That he related these circumstances to an acquaintance the day after and was at the inquest, but could not get in, nor did he like to busy himself in it. Think Brown struck Mr McNaughton, but did not let him strike Mr Connor. Only saw Mr McNaughton's hat knocked off, and did not see the deceased knock Mr McNaughton down.

           Thomas Brown deposed that hearing the riot, he went to the place, accompanied by two others, namely, William Baugh and John Prichett. On going up saw a man give a severe blow and on a near approach saw two more blows given, one of the blows was given by Brown the painter, with a stick. The witness readily knew Mr McNaughton. The witness collared Brown when his stick was in full swing. The deceased was not then dead. Witness said to Brown "how dare you strike an officer!" and took the stick from him without resistance. Brown then went into the house. The deceased was at this time struggling with Mr McNaughton, and both fell together. Mr McNaughton got up and was advised by the witness to go home, to which he replied that he would go if he could get his hat, saying also, "this is pretty usage for gentlemen to get from such scoundrels". Witness sent Pritchett to look for his hat, which being found, he wished witness a good night, and said he would go home. The deceased was then lying at the deponent's feet and his were supporting his head, and deponent afterwards heard he was dead. The stick he took from Brown he had kept, and was now in possession of one Bryce, a constable.

           John Pritchard, a private soldier, sworn, says he was in company with the last witness and William Baugh on the night named, and in going to the spot with them, heard and saw the blows given. That he saw Mr McNaughton and the deceased scuffling in the road. That the deceased had a stick, Mr McNaughton had not. That Brown, the painter, came out and struck Mr McNaughton twice or thrice across the head, and he and the deceased fell. Mr McNaughton got up again but deceased did not. That Mr McNaughton appeared stunned by the blows he had received from Brown. Witness told Brown the soldier to take away his stick, which he did, asking him at the same time how he dared to strike an officer. Saw Mr Connor with a stick for his own protection, but never saw him make use of it. He saw Mr McNaughton receive two blows on the head. He did not see the deceased knock down either of the prisoners. When Mr McNaughton was closed with the deceased, it appeared to witness that he, Mr McNaughton was only endeavouring to confine his arms to prevent his striking him with the stick he had, and a stick which Thomas Brown had sworn he took from Brown the painter was here produced, and the witness believe it to be the same.

           William Baugh sworn, says he was in company with the two last witnesses at the affray, and corroborate their testimony in all particulars, yet with this difference, as Mr McNaughton and the deceased were closed when Brown the painter struck at the former, he could not say which he struck, for it was dark, and he was as liable to strike one as the other.

           William McIntosh sworn, says that seeing a crowd, he went to the place and on a close approach saw two or three men about Mr Connor, whom he did not know at first. That Mr Connor fell into a drain near Holmes', and they fell upon him to prevent his rising. That when Mr Connor did get out, he went as far as Meurant's and got a paling, which he prevailed on him to throw away, and his accompanying him homeward, when he suddenly asked where Mr McNaughton was, that he owed his life to him and could not go and leave him. That they met Mr McNaughton going down the street bare-headed, but his hat being given to him, he accompanied both the gentlemen to their quarters. That Mr McNaughton complained of violent bruises on the head, which at his request deponent examined with his hand, and found two contusions, apparently the effect of blows, from one of which there seemed to have been an issue of blood.

           Cross-examined, says that he must have gone up at the end of the affray, as he saw no blows struck by any persons whatever.

           Surgeon Martin re-sworn, states that he visited Mr Connor soon after the affray, when he found one of his arms much bruised, and he complained of severe blows all over his body. With regard to Brown (here called the painter) he came to this country in the same vessel with him, and he had formed a very bad opinion of him from his general character.

           The Rev. Mr Marsden, whose servant Brown had been on his passage to this country about four years since, stated that he had discharged him from his service in consequence of his general bad character, but had known nothing of him since his arrival here.

           The prisoners here close their defence, and the Judge Advocate, in laying down his charge, address the court nearly in the following terms:

           Gentlemen,

           The important considerations connected with the investigation of the charge before you, and which have for so many hours occupied the most serious attention of this court, regarding as well the situation of the prisoners at the bar as public justice, induced me to offer in public such observations as I wish to suggest in this case. The evidence that has been adduced in support of the prosecution, and that which has been brought forward in behalf of the prisoners, is now fully before us, and I shall leave the whole of your discretion, with such directions as may assist you to judge of the law applicable to the facts in proof. But we will first read over the whole of the evidence in presence of the prisoners. That if any objections arise as to the correctness of the minutes, that prisoners may not be deprived of the benefit of them. They stand at the bar of this court, charged with the crime of wilful murder, and while I feel that your minds must be much fatigued from the length of time and very strict attention that this trial has already demanded, yet I confidently bespeak your continuance and patient attention to the observations which I have now to offer.

           Murder is the killing of a fellow creature, wilfully and with malice aforethought; the omission of which terms in the verdict returned by the Coroner's Jury rendered it in point of law merely a verdict of manslaughter. Malice aforethought is an essential character in every charge of murder, and is of two kinds; malice in fact where it is clearly proved that the mind has fostered long previous hatred, has brooded over plans of revenge, and where those plans have been deliberately executed; and malice in point of law, which is inferred from general circumstances, as if a man were to fire off a pistol in the midst of a crowd of persons, and kill one whom he had never seen before; this would be held to be malice, though no particular person had been made its object, as from the act itself nothing short of fatal consequences could have been expected to ensue, and being deliberately adopted would amount to murder, wilful and of malice aforethought.

           The prisoners now at the bar charged jointly because they were both together. Both at the same time engaged in one affray into which they went together, and came out together, and therefore, were it made out in the most satisfactory manner possible, that in point of fact one only gave the mortal blow, yet in point of law the blow of one would be considered the blow of both, as they were mutually aiding and assisting one another when the blow was given.

           In adverting to a part of the defence of the prisoners, on which some stress has been laid, and the testimony brought forward in support of it, I must here observe, that if it had been perfectly established that the deceased was in a debilitated state of body to the contrary of which, however, there is a preponderating testimony, yet I do not consider such a fact of much importance in the case, for I have no hesitation in saying, that where the death of any person is prematurely hastened, and can be distinctly traced to acts of violence on the part of any rational agent, it would amount to homicide. So that if death of the deceased is in the opinion of the court distinctly proved to have been hastened by the violence of the prisoners at the bar, they must be responsible for it. The point that seemed to weigh most strongly against the prisoners at the bar are these. They are stated by the witness for the prosecution to have been seen in coloured clothes in Pitt-street, at a late hour of the evening. They accost a young woman, whose wish it is to shun them, and to do this goes into the house where she resided. They follow her, strike the man with whom she is walking, and endeavour to enter the house before, using language extremely indecent as well with respect to this young woman, as to the wife of the deceased. The deceased, the owner of the house, comes up, the same language is repeated, and the circumstances take place which terminate in the deaths of the deceased. If, then, from a review of the whole evidence, it should be thought that the prisoners began this violent breach of the peace, and that in the progress of it they shewed a determination to resist all opposition to their improper design, the whole consequences that have ensued they are responsible for, and the death of the deceased, if clearly and decidedly traced to them, must constitute the crime of wilful murder. But if, on the contrary, the evidence of the prosecution shall be considered to have been effectively remitted by the evidence brought in support of the prisoners' defence, and the whole be supposed to be a sudden affray in which the parties concerned were engaged on equal terms, the killing would then amount only to manslaughter. But the court must be satisfied that death was occasioned either mediately or immediately by a blow or blows inflicted by one or both the prisoners upon the deceased, and if any rational doubt shall arise in your minds on this head, I am convinced you will acquiesce in the mild and benevolent principles of the British law, and giving to the prisoners the advantage of that doubt, acquit them altogether. Several gentlemen of the faculty have been called upon to give their opinions on the case of the deceased, and they have all declared that upon the most minute examination of the body, shortly after death, no external marks of violence were visible. They attribute the death to an effusion of blood in the lungs, but all are at a loss to conjecture what occasioned that effusion. Yet in the absence of any external marks of violence, all seem inclined to attribute it rather to some spasmodic action of the heart, created by violent agitation, then to the immediate effects of a blow. If, in your opinion, such violent agitation were occasioned by the conduct of the prisoners and by blows received from them, the case will amount to homicide, the particular character of which will depend upon the other circumstances in proof. The court will consider that the deceased died instantly, that he is proved by two witnesses to have been in sound health just before his death, by several, that he was a mild and quiet man. If, then, it appears that at one moment he was in perfect health and at the next moment a dead man, it would perhaps be too much to infer, considering every part of the case, that his death could be attributed to any thing else than the circumstances of the affray. Whether this will amount to murder or not on the part of the prisoners must nevertheless as I have already said, depend upon other facts. If, from the evidence produced on behalf of the prisoners, the court shall be of opinion that the whole was a sudden quarrel, in which the parties were engaged on equal terms, and in which the deceased met his death mediately or immediately from the acts of the prisoners, they would be guilty only of manslaughter. But if on the contrary it is considered that they went to the house of the deceased with fixed determination to act as improperly as has been stated in some part of the evidence, and to resent all defensive opposition that might be offered to them, and ensued by their means, in this case, even though struck by the deceased, the prisoners in the eye of the law would be guilty of murder. But if the death of the deceased cannot be clearly and distinctly traced, either mediately or immediately to the conduct of the prisoners as charged in the information, it would be the duty of the court to acquit them altogether of this charge.

           In addition to the observation he had already offered, it was incumbent on him to make some remarks upon the nature of the evidence upon which the court was to decide. That the evidence brought in support of the defence was in ... opposition to that given on the side of the prosecution which was unhappily too evident, all the witnesses had been examined with equal care and precision, and whether this manifest variation could proceed from mistake, or some frailty incidental to human nature, the court had no other means of determining than from the opinion it had formed of the evidence as it was delivered. Whether the parties seemed to labour under apprehension or constraint, whether there were any apparent reluctance that might be considered to arise from prejudice or partiality, or whether the evidence delivered was open free and devoid of all suspicious symptoms. Here the Judge Advocate took a comparative review of the whole of the evidence, which he afterwards read over in open court, and the gentlemen who composed it, and then retired, and after a deliberation that occupied nearly two hours, returned a verdict guilty of manslaughter. The prisoners were therefore sentenced to pay a fine to our Lord the King, of one shilling each, and to be imprisoned in his Majesty's gaol, at Parramatta, for the space of 6 calendar months.

           This very interesting and highly important trial commenced at 10 o'clock on Friday morning, and lasted till 1 o'clock this morning.

Government and General After Orders

Military Department

Head Quarters, Sydney,

Saturday, 17th July, 1813

           It is with the deepest and most heartfelt regret that the Governor and Commander in Chief demands the most serious attention of the troops under his command, whilst he conveys to them his sentiments on the late deplorable event of the loss of a fellow creature to society in the death of William Holness, by the intemperate and disgraceful conduct of Lieutenants Archibald McNaughton and Philip Connor, the first Battalion of the 73rd Regiment.

           In lamenting that men who ought to be the prompt and steady supporters of the laws of their country should thus become the violators of [them] and the terror of that society which their duty to their Sovereign imperiously demands of them to uphold, he feels it the more incumbent on him, uninfluenced by partiality or prejudice, and solely actuated by that paramount service of public duty, with no consideration of rank or profession in the delinquents shall ever induce him to swear from, to express his most decided reprobation of all the circumstances leading to the melancholy catastrophe now under consideration, and which must necessarily remain on the records of the criminal court, to a lasting disgrace of the perpetrators of that foul deed.

           But whilst the clemency of the court, supported by the general tendency of the laws [on] the side of mercy, has pronounced the lenient sentence of manslaughter, and adjudged six months' imprisonment with a fine of one shilling each to the perpetrators of this outrage, it rests with the Governor and Commander in Chief to mark, in the strongest terms, his indignation at an occurrence so disgraceful to the military character; and he trusts, with confidence, that the high sense of honor which so eminently characterises the British Army in every quarter of the world in which the 73rd Regiment in particular has possessed a most flattering portion, will induce them to look to this lamentable event as a beacon set up to guard them against the fatal consequences attendant on a life of drunkenness, debauchery and riot, which inevitably tends to the debasement and degradation of the upright and manly character of a British soldier and necessarily induces the contempt and indignation of all brave and honorable men.

           It having been proved on the trial of Lieutenants McNaughton and Connor, that they were in disguise and dressed in coloured clothes on the melancholy and disgraceful occasion alluded to, from which circumstances alone, it is reasonable to conclude, they went out from their quarters with no good design. The Commander of the forces positively orders and directs that [no] officer or soldier (excepting such soldiers as are servants of officers) shall ever appear in future in any part of the town or garrison of Sydney in any other dress than their regimental uniforms.

However painful it may be to his own feelings so to do, Brigadier General Macquarie considers it to be his indisputable duty to report to his Royal Highness the Commander in Chief, the conduct of Lieutenants McNaughton and Connor on the occasion now adverted to, and to submit to the consideration of his Royal Highness the propriety of allowing persons who have so far disgraced the military character to remain any longer in his Majesty's service.

The Commander of the forces directs, that the foregoing general orders shall be read at the head of the 73rd Regiment, under arms, at the two next ensuing parades of that corps.

Lachlan Macquarie, by Command of his Excellency the Governor and Commander of the forces,

H.C. Antill, Major of Brigade.

Note

[1] This was one of several cases in which military officers were tried before a jury of fellow officers. Governor Macquarie thought that the jury in this case was too sympathetic to the defendants. The case also highlights the desire of Bent J.A. to formally articulate the principles of English law and outline reasons for judgment (in this case the distinction between murder and manslaughter).

In Book 4 of his Commentaries, in distinguishing murder from voluntary manslaughter, Blackstone wrote: "manslaughter arises from the sudden heat of passions, murder from the wickedness of the heart" (p. 190). On involuntary manslaughter Blackstone commented: "...when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only: but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind" (p. 192).

For official records of this case, see in State Records N.S.W., Court of Criminal Jurisdiction, Minutes of Proceedings, May 1813 to July 1815, 5/1121, p. 38; Court of Criminal Jurisdiction, Precepts and Informations, 1788-1824, 5/1144A, p. 233. For another case of a military jury's verdict on a charge against a brother officer, see R. v. Lowe, 1827.

Published by the Division of Law, Macquarie University