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

R v Herne [1825] NSWSupC 7

murder - manslaughter - provocation - self defence

Supreme Court of New South Wales

Forbes C.J., 4 February 1825

Source: Australian, 10 February 1825




Abr. Herne was next put to the bar, charged with the murder of Wm. Harcourt, at the Cowpasture river, on the 24th December last.

William Web deposed, that he was at the house of the prisoner, on the above day; heard a noise of quarrelling between some persons in the house; went to see what it was, and heard the deceased using improper language, and challenging prisoner to fight; prisoner refused, and endeavoured to get out of his way; which he did for some time; but upon prisoner's return, the deceased said, if you, Herne, don't give me some spirits, I shall settle you; the prisoner, to make him quiet, gave him liquor, which only made him more unruly; prisoner ordered him out of the house, and told the servants in the huts, to keep their doors shut, and not let him in; the deceased swore, if he was not let in, he would soon settle the prisoner Herne; deceased returned again, to prisoner's house, and sat down; and, after some altercation, a struggle ensued, in which the prisoner was knocked down, and was carried to his bed-room, by his wife and servant; the deceased still continued outrageous in the house, and insisting for more liquor, which Mrs. Herne refused; a short time after, the prisoner recovering, went up to him and desired him to begone, as it was now dark, and he would not find his way home; this the deceased would not do, but used great violence to all in the house; he then pulled the prisoner out, and swore he would be his match; struck the prisoner several blows with his fist, and made him stumble some yards backwards; upon this the prisoner took up a stick, which lay within 15 yards, and struck the deceased two or three severe blows on the head; the deceased fell, and never spoke any more; the prisoner went into his house.

On cross examination deposed, that the deceased was a tall strong man, an overmatch for the prisoner; and that the prisoner acted only in self-defence.

William Jennings, servant to the prisoner at the bar; did not see deceased when he came to his master's house, but afterwards saw him much the worse for liquor, and was so unruly as to strike and ill use the prisoner; he was thrice ordered out of the house; he gave prisoner several very severe blows, which made him fall back to the ground; upon rising, he saw him go and take up a stick, and give him a blow on the head or shoulders, upon which the deceased fell.

George Ambridge, had known the prisoner and the deceased for a long time past, knew that the deceased was a very violent man; fond of fighting; also knows, that the prisoner is a quiet man.

Robert Harbyson, carpenter at Bringelly, saw the body at the Inquest, and also saw the stick; Doctor Hill examined the body; said the deceased death was occasioned by the stroke of a bludgeon; believes the stick now shewn, to be that produced at the Inquest.

Edward Crow, was at the house of the prisoner on the night the accident happened; saw Harcourt, the deceased, very drunk; heard him use a great many bad expressions, before Mrs. Hearne and the children; checked and cautioned him to no purpose: saw him strike the prisoner a violent blow; told him what he had done to Mr. Herne, and how bad he was; his reply was, "Never mind, never mind, Ned, I will soon bring him out, and break his head too;" upon saying this, he went, and pulled him out; struck the prisoner again; prisoner took up a stick, said he would defend himself and his family, as long as he was able; he gave him a stroke on the head; afterwards, being told that he was dead, said he was very sorry for it; witness went for a carpenter and the Coroner.

Mr. Jonathan Hassall has known the prisoner these twelve years past; knows him to be a very good neighbour, and an honest man.

Mr. Johnston deposed the same as Mr. Hassall.

Four other witnesses were called as to character.

The Chief Justice having at considerable length summed up the evidence, and charged the Jury to consider whether the offence committed, amounted to murder or only manslaughter.

The Jury retired for a few minutes, and returned Not Guilty of murder, but Guilty of manslaughter.[1 ]



[1 ] The Sydney Gazette, 10 February 1825 noted that ``the trial lasted from 9 in the morning till 7 in the evening".

Published by the Division of Law, Macquarie University