Skip to Content

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

R. v. Fuller [1827] NSWSupC 25

Lord Ellenborough's Act, defences, accident

Supreme Court of New South Wales

Trial, 9 May 1827

Source: Australian, 11 May 1827

George Fuller was indicted under Lord Ellenborough's Act,[1 ] for shooting at one Michael McClenn.  The prosecutor deposed that as he was proceeding from Campbelltown to his own home, a distance of one mile and a half further, between nine and ten o'clock on the evening of the 19th of March last, in company with another person, the prisoner, who lives on a farm on the road side along which he was walking, came running towards him with a gun in his hand and desired him to stop.  Witness took no notice of this, and the prisoner brought the muzzle of the gun in contact with his breast; the gun instantly flashed fire.  Witness then rescued the gun from the prisoner and lodged it with the district constable; to whom he gave information of the assault.

Eliz. Finneman was in company with the last witness, one the occasion alluded to; while passing by the prisoner's farm they were in high discourse together, which might have been heard by any person at some distance.  The prisoner called out to them to stop; he approached towards them and demanded to know who they were.  A good deal of abuse took place between witness's companion and the prisoner;[2 ] who had been, for some time before, on unfriendly terms.  A wrestle took place between them; in the course of which the gun flashed fire.  The prisoner's farm had been robbed a fortnight before by bushrangers.

Burke, a constable proved that the gun was loaded with powder and shot.

The Jury returned a verdict Not Guilty.

The prisoner was admonished by the Court for the impropriety of conduct, it had been proved he exercised in sallying forth on the high road with a gun and using violence therewith, when he could not pretend to have the slightest necessity for doing so.

Notes

[1 ] On the legality of prosecutions under Lord Ellenborough's Act in New South Wales, see R. v. Smith, January 1825.

[2 ] According to the Sydney Gazette, 11May 1827, the prisoner said "you pumpkin headed b--, if you do not stop and tell me who you are, I'll blow your brains out."

Published by the Division of Law, Macquarie University