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

R v Byron [1825] NSWSupC 48

murder - prosecution of constable - convict rights - certificate of freedom

Supreme Court of New South Wales

Forbes C.J., 7 October 1825

Source: Australian, 13 October 1825


John Byron stood indicted for the wilful murder of Samuel Lupton on the 29th of May last.[1 ]

Joseph Haggars stated that he saw the deceased, Samuel Lupton, at a public house on the Parramatta-road, kept by one Jacob Isaacs, and that the deceased had not left the house more than fifteen minutes when the report of fire arms was twice distinctly heard; the first report was not noticed, being considered a no-s thing [sic] strange; shortly after the second discharge heard the prisoner's voice; prisoner said he had shot a man, and that it was for running away from the round house with a musket; the man was found about sixty yards from the watch-house quite dead; saw a musket lying about fifteen feet from him; went back to the round house, where was a pistol lying on a table, which had been discharged; prisoner said that he had fired the first piece when he returned, and procured another, which he also discharged; on examining the body there were a number of wounds, evidently occasioned by slugs or shot; prisoner at that time stated that deceased had taken hold of the musket in the round house, and said that he was as good a man as him (meaning the prisoner;) the latter replied if the piece was loaded he would have been a dead man, and thereupon ordered him to descend into a cell, which he refused to do, and on seeing the watch-house door open, ran out, when prisoner took his pistol, followed him, and discharged it; he afterwards returned and procured a musket from the house, which he also discharged.

Richard Robinson deposed that he was in company with deceased, on the Parramatta-road, on the evening of the 29th of May last, was proceeding from Parramatta to Sydney, when, on passing a round-house within three miles from Sydney, prisoner came out with a pistol in his hand and approached towards them, on looking witness in the face he observed you are not the man; he then looked at deceased and enquired who he was, he said, I will tell you who I am, you remember, I suppose, to have worked with me in loading stone for Jenny Muckle.  Prisoner then remembered him, suffered both to proceed on their way, and returned back to his watch-house; deceased then said that it was a hard case to be stopped by constables, and that the prisoner Byron knew him to be a free man; the constable returned and asked what he was grumbling about, insisted on seeing his certificate of freedom, which deceased said had been left by him in Sydney.  Prisoner said, if you cannot produce it I will take you in custody to the round-house.  Not more than three minutes had elapsed from the prisoner leaving them the first time and his return, deceased and witness had some words together respecting his going in custody to the watch-house, but was at length prevailed upon to go; witness proceeded alone on his journey, about five minutes after heard the report of a piece fired, it appeared to proceed from the direction of the prisoner's round-house.  The deceased was sober when accosted by the constable.

Mr. Anthony Best - Knew deceased; three years prior to the day of his death he became a free man; he had always a remarkably quiet and peaceable temper.

Some witnesses were called on behalf of the prisoner.[2 ]

The Jury retired for about forty minutes, verdict Not Guilty.



[1 ] Reported by the Sydney Gazette,10 October 1825.  It summarised the opening address by the Attorney General (Saxe Bannister).  He noted that the defendant was a constable, whose offence was committed in the execution of his duty.  There was no danger in the duty, however, and no felony had been committed by the deceased.  Therefore the defendant had killed without cause.

[2 ] The Sydney Gazette, 10 October 1825, summarised Forbes C.J.'s charge to the jury: he said that this was the most difficult case he had tried in New South Wales.  The report of the charge went on: ``The question turned entirely upon whether the prisoner acted under a consideration of his duty; it had been stated to be part of his duty to protect the road.  The deceased was passing, the constable came out, as he conceived, in the execution of his duty, and demanded his certificate; as a matter of fact, he did apprehend the deceased, and brought him to the watch-house, and what happened there was only to be collected from his own statement, which should notwithstanding be taken altogether.  Now then the deceased was apprehended, he ran off, and ran with the musket belonging to the person who apprehended him.  Taking the case then, with the reference, not only to its own immediate circumstances, but also with other circumstances connected with it, bushrangers to a great extent being about the place, a highway robbery having been committed a short time before in the neighbourhood, the deceased being apprehended, running away, and carrying off the constable's arms, the case did not appear to amount to more than manslaughter."

After stating the verdict, the Gazette went on: ``Previous to his being discharged from the dock, His Honor addressed the prisoner in nearly the following words: `John Byron, you have been acquitted of the crime with which you were charged, by the verdict of the Jury, who have come to the conclusion, which the whole circumstances of your case seemed to them to warrant; but, before you are discharged, I must admonish you, as an officer of the Police Establishment, and through you, others who fill similar situations, that they are not to conduct themselves as you have done; your situation was a delicate one, but your conduct might have been different, and at the same time equally efficient; there were other means which you might have used, before you fired a pistol at a flying man, you might have called for, and obtained assistance, and have again taken him into custody, for let it be understood, that officers are not justified in firing a pistol after a man merely flying from arrest, for by possibility he might be innocent of the charge, and fly from timidity, or from apprehension.  And let it also be known by all persons in like situations, that they are not allowed to resort to force unless opposed by force, and then only in proportion to the measure of resistance, or they subject themselves to be called to account, which may lead to different results, from that which has occurred to you this day."

Published by the Division of Law, Macquarie University