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

R. v. Burbridge [1817] NSWKR 8; [1817] NSWSupC 8

murder, mens rea - Van Diemen's Land

Court of Criminal Jurisdiction
Wylde J.A., 31 October 1817
Source: Sydney Gazette, 3 November 1817

William Burbridge, a private in the 48th Regt. was indicted for a wilful murder of - Hayes, of the same regiment on the evening of the 23d of October last, at Launceston, Port  Dalrymple, by shooting him with his musket, in the barracks.  The evidence upon the trial stated, that the prisoner at the bar had that evening received a musket from his serjeant, for the purpose of getting it into order for attending the monthly inspection on the following day; that he took it into the barrack (where many of his comrades were at the time, and among others the deceased, sitting on a chest going to supper), and was shewing it about and praising it, saying that the piece was in fine order, and he could hazard his life upon it: that he rested the piece across a hammock, which was slung very low, and the muzzle falling into a direction with another soldier who was sitting near to the deceased, the former knocked it aside, and remarked to him on the danger of sporting with a musket, without knowing whether it was charged or not; in reply to which the prisoner at the bar said, it was not charged; and at that instant the deceased, under the latter impression, threw open his arms, and presenting his breast, jocosely desired him to fire at him; the peace instantly exploded, and the contents lodging in his breast, he fell and almost instantly expired.

           All the witnesses agreed in the material facts of a general good understanding having uniformly subsisted between the prisoner and the deceased, nor was there the slightest circumstances from which a previous malice could have been presumed.

           It was stated also, that as soon as the unfortunate man fell the prisoner appeared to undergo considerable agony of mind, and from the whole of the circumstances attending the melancholy transaction there remain no doubt that however rash and unthinking might have been the conduct of the prisoner in sporting among his fellow soldiers with a gun without being conscious of its being unloaded, yet this was unaccompanied by any feature that could stamp the impression of moral turpitude and guilt; and the prisoner was accordingly acquitted.

           His unhappiness during his confinement had marked the pain of his reflections on the unhappy catastrophe; and with a serious and pathetic admonition from the Bench, he withdrew from the bar, and was shortly afterwards liberated.

Published by the Division of Law, Macquarie University