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

R. v. Gore [1824] NSWKR 1; [1824] NSWSupC 29

murder, mens rea - attempted murder - shooting
 

Court of Criminal Jurisdiction

Wylde J.A., 23 January 1822

Source: Sydney Gazette, 29 January 1824 [1]

            Mr William Gore was next indicted for feloniously firing at and wounding, with intent to kill and murder, one Andrew Beattie, a private in his Majesty's 48th Regiment, on the 21st of November last. The prisoner was also charged on a second indictment with the misdemeanour.

            Andrew Beattie deposed that he is a private of the 48th Regiment, that he was employed as military grass-cutter occasionally in the district of Lane Cove. On the day named in the indictment he was procuring grass on or contiguous to the farm of the prisoner, in which spot, or within half a mile, he had been before. There was a fence quite close to the spot. He was outside, and alone. When he first saw Mr Gore, he was 50 yards distant, and he had then made up, in bundles, four dozen of grass. He saw the prisoner's government servant prior to his seeing Mr Gore. Upon the prisoner getting sight of the witness he ran forward, exclaiming he had found one. Mr Gore commanded him to lay down his hook. The witness said that the prisoner was welcome to take the grass if it belonged to him, but seemed unwilling to give the hook, whereupon Mr Gore struck him with his fowling piece on the right shoulder, which staggered him, and recovering himself, the witness ran off with his hook. The prisoner then levelled his fowling-piece at the deponent and shot him, at the distance of about 80 yards. The prisoner never uttered a word. The deponent positively swore that the prisoner came up to him on the charge, cocking the piece as he advanced, and that there was not above the intervention of a minute and a half between the blow and the discharge of a gun. The deponent did not fall upon being wounded, he ran to some distance, and out of sight of the prisoner and his servant, ere he found himself wounded. The shot had entered his fingers, hand, arm, shoulder and right side. Becoming weak from loss of blood, the deponent thought it most advisable to return towards Mr Gore, to obtain aid. On returning, the back of the prisoner was towards deponent, when within a few paces, however, the prisoner suddenly turned, and seeing the deponent, exclaimed "You rascal: have you come to trouble me again?" and made for the deponent, who informed him, the prisoner, that he was wounded. The reply of the prisoner to this was that he was nothing the worse, and he was sorry it had not been a ball, for it would have stopped his running. The deponent replied it was bad enough, and begged for assistance to Sydney, which the prisoner refused to grant him. He then entreated that information might be promptly transmitted to his master, for he was unable to go home. Mr Gore to this also said he would not. The deponent then was compelled to take shelter under a tree. The prisoner told him, the deponent, that he was able to walk, and, if not, he might die at the bush. The government man, Mr Gore's servant, then advanced towards the wounded man and said he was wounded ill enough. An interchange of looks took place between the master (the prisoner) and the servant, and Mr Gore then said he would go, in person, to the doctor. The prisoner then directed his servant to take the wounded man's rope, jacket, and hook up to the house, and then return and take him (the deponent) up to the old well, and wash him. The man, however, assisted the deponent to the well prior to going to the house where he was left for about 7 minutes. He was then washed and the prisoner dressed some of his wounds with sticking plaster. The prisoner then promised to go to town and told the man to take him to his bed, and keep him there till he returned where he remained for two or three hours, till removed by a party of his comrades. That he met the prisoner on his way to Sydney, who enquired after his health, but he (the deponent) gave that no reply. This transaction occurred about ten in the morning. Upon his cross-examination, the deponent admitted that Mr Gore had frequently reprimanded him from trespassing on his grounds and taking away the grass, but this occurred when a mile and a half distant from his house. The witness had been admonished by the Adjutant of the Regiment against a repetition of this offence, which was 6 months prior to November last. Upon one occasion, Mr Gore took the grass from him and, when he was lying at the old well, Mr Gore expressed his sorrow that it was him. He was confined 11 days in the hospital.

            William Freeman, an assigned Crown servant of Mr Gore, deposed that he had been two years with his present master, that he knew Andrew Beattie, the foregoing witness, well, and that from the circumstance of having frequently seen him on his master's estate at Lane Cove, employed as a grass cutter. The deponent stated that Beattie was so employed on the morning of the 21st of November last, between the hours of 9 and 10, which was the day he was shot. He, the deponent, first saw Beattie at the bottom of the lower orchard, on the outside of the fence. He went and informed his master of the circumstances who was employed in the garden, some distance from the deponent. He called to his master, who answered him by a wave of the hand. That his master then left the garden for the dwelling, from whence he shortly came with a fowling-piece, and both of them proceeded in a direction to secure the grass-cutter (Beattie). Upon coming within [had], Mr Gore demanded his hook, but Beattie said he might take the grass but he would not give up the hook. Upon which Mr Gore immediately gave him a blow on one side of the head with the fowling-piece. As he approached Beattie, the prisoner held the piece in both hands, but this witness said that the gun was not cocked till after the blow. Upon being struck, Beattie ran off. Mr Gore commanded him to stop, saying "Stop, you villain, stop; for if you don't I'll fire!" and he fired, that Beattie still running. The ground was steep and rocky, owing to which Beattie was soon out of sight. Mr Gore and the deponent then turned towards the fence, the latter searching for the grass, which was found close to the spot, with a jacket, rope etc. Shortly after Beattie returned, exclaiming he was badly wounded and begged Mr Gore would send some one to Sydney, who declared that he would not. Beattie then said he must lie there and die, and threw himself under the shade of a tree. At the repeated entreaty of the wounded man, Mr Gore said he would go to Sydney himself. The prisoner, aided by the witness, then washed and dressed Beattie. This witness further deposed that his master's farm had been continually trespassed by the grass-cutters, some of whom had used the most defying and abusive language, insomuch that prudence dictated the necessity of being properly armed, to avoid the threatened attacks being carried into effect. He had seen Beattie twice or thrice on the farm and he never heard of anyone being struck or ill-used by the grass-cutters, but he had been threatened 5 or 6 times. For the last two years he had known the grass-cutters to be visiting the fields for the purpose of depriving his master of that species of property which alone constituted the principal support of his family. Mr Gore was in the custom of taking his fowling piece, which he found it necessary to warn off the grass-cutters. He said there was nothing mentioned about a bull.

            Robert Kelly, late overseer to the government grass-cutters, deposed that he heard of Mr Gore's farm repeatedly. The prisoner had made complaints to him of the depredations committed by the grass-cutters and he had, in consequence, exerted all his influence in preventing those annoyances. Mr Gore once told him, the witness, that he had made frequent complaints to the Superintendent of Police, as well as to the Adjutant, and that he (the prisoner) was determined to make an example of some of them. Mr Gore, upon this occasion, asked deponent if he knew Andrew the soldier, meaning the wounded man, saying he was one of the party. In reply, the deponent told Mr Gore that the grass-cutters were ever making complaints against him, alleging that it was impossible to pass his house without losing their grass and their hooks, as Mr Gore came upon them with his musket. The interview terminated with the prisoner declaring that he would certainly shoot some of the most troublesome.

            G.A. Stephenson esq., surgeon, 48th Regiment, deposed that the soldier Beattie was under his care. He saw him about 5 o'clock in the evening of the day on which he was shot. He had been wounded with small shot, from the back bone under the side they were 8 shots, on the back part of the upper arm, there were 10, and on the fore arm hand, 24 were lodged. This gentlemen said from the appearance and situation of the wounds, he was unable so decide for several days as to a recovery. If we understood Dr Stevenson correctly, there remain 41 shots in Beattie still. Here the prosecution ended.

            Messrs Garling and Rowe were the solicitors on the part of the prisoner. A written defence, combining ingenuity and ability, was read by Mr Garling. We refrain, from very obvious motives, entering into many particulars that were detailed in this feeling address to the court. Suffice it to say, that it contained and alluded to transactions with which most of the public are already in possession.

            T. Weaton esq., Adjutant of the 48th Regiment, being called by Mr Rowe, deposed that Mr Gore had once complained of the soldier Beattie, and that Mr Gore was then told the man should be punished for his conduct, but that the prisoner at the time interfered in his behalf, expressing the hope that such trespassers would not be followed up.

            Mr William Gore junior deposed that the grass-cutters were continually trespassing on his father's farm, almost every day, and always three or four times a week. Upon some occasions, they would be particularly rude and violent, while at other times crudity might mark their conduct. Once they went so far in insolent behaviour as to threaten him, the deponent, with the loss of his head, which they declared they would cut off! It was nothing uncommon to be threatened with maltreatment when he interfered. They have often been so daring as to come within 100 yards of the house, on this side the inclosures. His father invariably told him to comport himself with civility towards them, and cautioned him against cocking the piece at them. He saw Beattie once on the cultivated and twice on forest land. That his father sent him into town next day (the day after this affair) to Mr Garling to enquire as to the state of the soldier and to ascertain whether his attendance would be necessary. He returned home with a message from the solicitor, and his father immediately surrendered himself.

            William Forster, [late] district constable in Lane Cove, deposed to the [marauding] conduct of the grass-cutters, for many years, in that quarter.

            The defence being concluded, his Honor the Judge Advocate proceeded to sum up the case to the court, remarking on the two particular legal principles appearing to be involved in the prisoner's defence, for the consideration of the court as affecting the degree of criminality arising upon almost every case of homicide, while the charge exhibited against the prisoner was to be determined exactly upon the same point as if the discharge of the musket had proved the fatal cause of death to the party at whom it was directed. In which view, therefore, the question would have been, whether the prisoner had discharged the gun in such a transport of passion and sudden irritation as to reduce the offence, in that event, to manslaughter, and again, whether as homicide was justifiable, if committed only in prevention of a felon's escape from justice, the act of firing off the piece by the prisoner had taken place only for the purpose of preventing the otherwise unavoidable escape of the prosecutor, as a felon. His Honor then went into detail of observations illustrating those legal principles, immediately reading the evidence taken, and applying the facts as bearing, or otherwise, upon either point. As to the feelings of the prisoner on the occasion, it would be for the court to weigh the great provocation, that had been so fully proved to have been so long and grievously endured by the prisoner, by continued trespass and loss of grass from the estate generally, as also, in particular, several times by the prosecutor himself. That if the court found that the gun had been carried from the house to the spot, from no offensive intention, but for personal protection only, though used indeed afterwards offensively under ebullition of passion, excited in so great a degree from the prosecutor's refusal to lay down his hook, when desired to do so, as for a moment to overpower his reason, all malicious motives being thus removed, the prisoner would be entitled to his acquittal. But if, on the other hand, the whole course of conduct and feeling on the part of the prisoner, seemed to shew him as a master of himself, and as acting under previous or immediate resolution to use personal violence against the prosecutor, with such a deadly instrument, at any hazard, or even under any misapprehension of legal ingenuity, or protection, if it should appear, that he must have immediately recognized the prosecutor, and would thus be satisfied, that a ready course was open to him therefore, by complaint to the Commanding Officer of the Regiment to which he belonged, as on a former occasion, of bringing him to punishment. If, in short, upon the evidence it appeared uncontroverted that the prisoner used violence without any the least personal provocation at the time, farther than the trespass committed, and the grass found in the prosecutor's possession, then the law would imply the malicious motive in the act of the prisoner, so as to bring him within the charge on the information. With regard too, to the point of justification, though there could be no doubt of the prosecutor having removed the bundles of grass, when removed from the freehold, and therefore a subject of larceny, and although the prisoner would have been justified perhaps in apprehending the prosecutor, it was to be observed still, that the law allowed no more personal force than was absolutely necessary for the apprehension, and that the death of the offender sought to be taken, or any act of violence, such, as was alleged against the prisoner and that under the present information, could be justified so far only, as it should satisfactorily be made to appear, that all other means would have been ineffectual to prevent escape. With this view, the court would consider, whether upon the circumstances in proof, they could find any intention either before or after the discharge of the gun on the part of the prisoner, to apprehend the prosecutor, by any words used at the time, by any pursuit upon the prosecutor's flight, or arrest after he was rendered unable to fly, whether in fact, although the gun was discharged, he was escaping from justice, or from farther violence only, after the blow from the market on the prisoner first coming up with him. It was again to be had in recollection, that a great distinction was also applicable to the principle of justification, which was extended only to the prevention of escape by felons upon commission of [outrageous] felonies, and not to cases of offences of greatly inferior enormity and mischief. It was still further to be observed, upon the facts of the case, that as the prisoner had made so many complaints to the police and others during the previous month upon the trespassers in question, it was unfortunate, at least, that he had not had police officers on any day to apprehend parties so offending, as alleged, every day almost of the week (and the greater the injury, the stronger in force the observation), so as thus to take the easy legal means of repressing the evil, rather than to take the law so violently into his own hands, in fulfilment of the menaces he was proved to have made on the subject: "that if the grass-cutters, as well as the prosecutor, did not keep away, he would certainly shoot some of them to make an example".

We are unable to pursue his Honor in his laborious investigation of the case or the arguments adduced both on the law and feel irresistibly convincing as to the grounds on which the decision of the court should be directed and controlled.

After an absence of about 15 minutes, the members resumed their seats, and his Honor pronounced the prisoner guilty of the first count in the indictment. Sentence deferred.

Note

[1] The Court of Criminal Jurisdiction was still making important legal decisions only a short time before it was abolished and replaced by the permanent Supreme Court under Forbes C.J. On this case, see also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ803, p. 173 (no. 10).

The prisoner does not appear in K. Macnab, Database of Prisoners Sentenced to Death in New South Wales, 1788-1968, unpublished, which means he was not sentenced to death.

Published by the Division of Law, Macquarie University