Skip to Content

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

R. v. Belcher [1820] NSWKR 10; [1820] NSWSupC 10

attempted murder

Court of Criminal Jurisdiction
Wylde J.A., 11 December 1820
Source: Sydney Gazette, 16 December 1820[1]

William Belcher, indicted for wilfully and maliciously firing at his master, Thomas Silvester, with intent to kill him and whereby he was severely wounded, upon Wednesday the first day of November last, pleaded not guilty: and evidence for the prosecution being called the following appeared the circumstances of this extraordinary case:

           The prosecutor is a settler on a farm a few miles from Sydney in the vicinity of King's Grove, and was called to town on business a few days before the crime took place leaving the prisoner at the bar, who was his Government servant, in charge of a temporary residence he had erected, and all it contained, having had no cause to suspect his honesty. He left on the farm a [?] foal and in the cottage, amongst other property a musket (unloaded) with ammunition, such as slugs, powder &c. The prosecutor returned in four days, and perceiving that the mare had not been tethered at the place he had given directions for, but on a bare spot, divested all of herbage and finding no person about the farm, he proceeded to that part of the ground where the prisoner ought to have been at work; but he was not to be found, and all work had been neglected by him. Thence strongly suspecting something improper had taken place, he proceeded towards the barn, calling around for the prisoner, whom he at length perceived advancing from the brush with a fire brand in his hand, and apparently unwell. The prosecutor enquired at his ailment, and was answered that he had been robbed by bush - rangers of his provisions. The prosecutor then asked if they had taken the musket, and the prisoner replied that it was safe in the hut; then commiserating the condition of the prisoner, from the supposition of long being without food, he directed him to provide a meal, while he went in to see after the musket ; but not finding it described, he challenged the prisoner with the assertion of an untruth; whereupon the latter, in contradiction of the first report respecting it, affirmed positively that he had already informed him the bushrangers had taken that away likewise. He described the persons of the bush-rangers; and said that one Sparkes, residing half a mile distant, knew them very well.

           The prosecutor much dissatisfied at the whole account, went to Sparke's, leaving the prisoner cooking: and on his return found him on his knees, behind the stump of a tree, and supposed he was collecting firewood; but on his approach within seven yards, he saw him rise deliberately upon one foot, and then on the other, levelling a gun at him; which he immediately fired, and lodged the contents, of slugs, in the left side of his face: he fell senseless; but gradually recovering sufficiently to hear a noise at his feet, he rose on his knees, and perceived the prisoner was in the act of reloading the gun: he begged his life might be spared; but feeling assured that personal exertion was needful to its preservation, he arose thoroughly, and ran for the hut, the door of which was so secured as to require more loss of time than his danger would admit, and he made for King's Grove, half a mile distant; as he gained and entered the gates of which, he sunk exhausted, but had sufficiently sounded the alarm to find ready assistance, and one of the people, Nettick Effrirnan[?], went off immediately and secured the prisoner on the prosecutor's premises; but he denied being the man that fired, though the fact had been established against him in terms indubitable as incontrovertible.

The prosecutor spoke highly of the prisoner's previous character and demeanour; but related some expressions that had before dropped from him in common conversation; the one of which he remarked to him that he had heard a bad character of him as a master to his Government servants, and that rather than submit to such himself, he would do something that should affect his life: at another similar conversation he enquired of him, the prosecutor, at what distance slugs would kill, and was told at about 8 yards.

The Court exerted its usual circumspection in the examination of evidence. The prosecutor swore again and again to his person, in which he could not be mistaken. The gun had been removed from its place, and not found, therefore was not to be produced; and Effirnan swore that the prisoner had told him it was on the spot where the mare had been tethered; but which no one was acquitted with.

The evidence of Silvester, the prisoner's master, now his prosecutor, was decidedly corroborated by the testimony of Effirnan and other witnesses, as regarded the point that had come under their connoissauce; and the case for the prosecution concluding, the prisoner was put upon his defence, which was comprised in a declaration of his innocent; and a verdict - Guilty was returned after a short deliberation.

           His Honor the Judge Advocate having announced the awful verdict, explained at much length and with corresponding energy, on the extraordinary and almost incredible circumstances that had been developed upon this trial. For the credit of human nature, he entertained the hope that so flagitious an act, however clear and indubitable the proofs under which it had been established, the world would feel disposed, as the Court had been, to pause upon the possibility, while they shuddered at the enormity, of the crime. His Honor, after embarking upon the relative conditions of the prosecutor, and the prisoner at the time of his committing the dreadful crime that had brought him to the bar, expressed his regret that the human character should have been so debased, as in this he hoped unparalleled instance of depravity it had unhappily been.

Note

[1] Lord Ellenborough's Act of 1803 (43 Geo. 3, c. 58) revised English criminal law in relation to attempted murder. Woods states at p. 29: "The problem which this statute dealt with was that at common law, any attempt to commit a crime was itself a crime - but merely a misdemeanour rather than a felony. At common law, even an attempt to murder someone, however brutal and close to its achievement, was a misdemeanour only". Misdemeanors were not capital crimes. Woods continues "Lord Ellenborough's Act of 1803 altered the common law position by declaring that certain kinds of attempted murder should be capital".

This statute was passed after the commencement of the colony of New South Wales in 1788, and on one view should thus not have been part of the colony's law. However it was treated in the Sydney courts as if it were in force. This uncertainty about the date of reception of English statute law was eventually cured by the passage of the Australian Courts Act, 1828 (9 Geo. 4, c. 83, s. 24) which established a new date, 1828. See R. v. Smith , 1825, which is online.

A "government servant" was a convict assigned to work for a private master.

See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ792, p. 634 (no. 49); and see G.D. Woods, A History of Criminal Law in New South Wales : The Colonial Period 1788-1900, Federation Press, Annandale, 2002, 29.

Published by the Division of Law, Macquarie University