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

R. v. Shea [1827] NSWSupC 27

murder - manslaughter - dying declaration - sentencing discretion

Supreme Court of New South Wales

Forbes C.J., 11 May 1827

Source: Sydney Gazette, 14 May 1827

 

Timothy Shea, alias Shean, was indicted for the wilful murder of Patrick Henley at Portland Head, on the 15th of March last.[1 ]  The information contained two counts.  The first count laid the blows which caused the death to have been inflicted with a musket.  The second count merely varied by stating the weapon to have been a hoe.

The Acting ATTORNEY GENERAL (W. H. Moore, Esq.) stated the case, and called the following witnesses.

Elizabeth Bradley stated, that she resides about four miles below Portland Head; her son-in-law, her daughter, and their three children, all lived in the house with her; had frequently seen the deceased, but had no particular acquain[t]ance with him, 'till about a week before h[i]s death, when he came to work for her son-in-law; the deceased was an old man, but apparently in good health; on the 15th of March last in the evening, a person named Byrne, who lived on the adjoining farm, came to witnesses house, and invited her, and the other parts of the family, to spend a couple of hours at his residence, which was only at the distance of a few rods from witness's dwelling; witness and family accordingly went, leaving the deceased to take care of the house till their return; after remaining at Byrne's about an hour, witness found herself indisposed, and proceeded homeward alone; this was about 9 o'clock at night; on approaching the house, witness heard a groaning inside, and presently after, heard the deceased call out "Is that you, Mrs. Bradley?  I am murdered."  The prisoner at this time was standing in the door-way, with a piece of a stick in his hand; witness asked him what was the matter, when he replied "the old villain has snapped the gun twice at me, and afterwards broke it on the step of the door in a rage," at the same time shewing witness, where the gun was lying broken; the deceased was, at the time lying under a bed, in an inner room; witness did not go into the house, but immediately ran to Byrne's, who with her son-in-law, and the rest of the family came back with her to the house; witness was so alarmed that she did not go into the house until the deceased was removed into a bed; he only survived till 11 or 12 o'clock the next day; the prisoner was detained by witness's son-in-law, the whole of the night, and, on the following morning, given into the custody of the district constable.

By the Court.  The prisoner was stock keeper to Byrne; witness had seen him the same day about two o'clock, when he came to the house, and asked the deceased, and witness's son-in-law, to assist him in extricating a cow from a bog; does not think the prisoner and the deceased had ever spoken to each other before that time.

William Bayley son-in-law to the last witness, stated that, on the way to Byrne's house, in the evening of the 15th of March, he met the prisoner, and asked him if he had his cattle in, and upon his replying that he had, witness told him he might as well go up to his countryman Henly (the deceased) and spend an hour with him; the prisoner said he did not know whether he would or not; witness never knew of any old grudge subsisting between the prisoner and the deceased, or that they had ever seen each other previous to that day; they were both from Ireland; witness's mother left Byrne's alone, about 9 o'clock, and had not been long gone, when she returned, calling out that murder had been committed by Byrne's stockman; the whole party immediately left Byrne's and hastened home; the prisoner was standing about three rods from witness's door, and, upon being brought bach [sic] into the house, and asked by witness why he had used the deceased in that way, he said he would not have done so, had he not snapped the musket twice at him; witness found the deceased under a bed, in a very dangerous state; he said his thigh was broken, that he was beaten by the prisoner, at first, with a stick; that he afterwards broke the musket across him, and then repeated the blows with a hoe; the prisoner denied having done so; he said it was with a stick he had struck him, that he was sorry he had beaten him so much, but that he would not have done so, had he not struck him first, and snapped the gun at him twice; the deceased was present when the prisoner stated this, and exclaimed "Oh you murdering villain! you have murdered me;" the deceased was a very violent tempered man, and would on a former occasion have struck Byrne (for whom he worked at the time) on the head with a morticing axe, had he not been prevented by the bystanders; he was about 60 years of age; witness has every reason to believe that the deceased attempted to turn the prisoner out of the house, when he came there, and in that way the quarrel took place; it is very probable the deceased might have got the gun from the bed-room where it was deposited, in order to drive the prisoner from the house; the deceased admitted that he went to push the prisoner out of the house, and that he replied he also was left in charge and would not go.

Philip Roberts, district constable at Portland Head, stated that he was informed by the last witness (Bayley) of what had taken place: witness enquired of the deceased, in the presence of the prisoner, how it happened; the deceased stated that the door was burst open on him, that the prisoner broke a musket over him, and then took a hoe, and looking at the prisoner exclaimed "Oh you murdering villain."  He died about half an hour after; witness thought he was badly wounded, but did not imagine he was so near the point of death; did not however think he would live from the wounds it was stated he had received; he said his thigh bone was smashed; witness took down his last declaration in writing.

His HONOR observed, that he could not permit that statement to be read, inasmuch as there was no evidence as yet that the deceased thought himself past recovery.

Elizabeth Byrne stated, that she heard the deceased say that the prisoner had beaten him; the prisoner stated that the deceased wanted to turn him away, and that he refused to go, as he had been desired to remain there until the party returned home; that the deceased took the gun, and snapped it twice at him, and then broke it in passion on the step of the door, and struck him with a piece of it, which he (the prisoner) wrested from him, and struck him in return; witness thought the deceased was in a bad state, but did not imagine he would have died so soon; he said himself that he should never recover.

The Court here permitted the deceased's declaration to be read, which stated that the deceased was ordered to take charge of Bradley's premises during his absence; that the prisoner came there, said he was ordered too, broke the door in, committed great violence, beat the deceased first with a musquet, and afterwards took a hoe.

Mr. Thomas Bindmore Allen, Surgeon on the Establishment, stated that he was present at the Inquest, and examined the body of the deceased; there were several incised wounds on the superior part of the head, one of them above the eye, and longer than the others; there were also several wounds on the right arm, but not deep, and appeared as if inflicted with something like a knife struck through the clothing when the arm was held up in defence; there were many contusions in different parts of the body, and a fracture near the hip joint, on the upper extremity of the thigh bone, which was considerably shattered by some heavy weapon; a considerable extravasation of blood had taken place between the muscles of the posterior part of the thigh, and towards the belly; the blows altogether might have been the cause of the death, but the fracture of the thigh and the extravasation of blood were the principal cause; there was also a slight appearance of extravasation on the right kidney, which might have been caused by disease, but the intestines were generally healthy.

The prisoner put in a written defence, stating that he had been directed by the witness Bayley to stop in the house along with the deceased, until his return from Byrne's; that on his going there some conversation occurred between them, and the deceased said he was sure the prisoner was one of the croppies, and engaged in the affair at Vinegar-hill, and endeavoured to thrust him out of the house; that he (the prisoner) refused to go, as he had been ordered by the owner to remain there till he came back, when the deceased ran for a musket from an inner room, snapped it twice at him, and finding it would not go off, broke it on the step of the door, and struck him with the barrel; that a struggle ensued, when the prisoner succeeded in wresting the weapon from him, and struck him with it in return.

The CHIEF JUSTICE, in summing up, observed, that in all cases of this kind, the great point of enquiry was the animus, with which the act had been committed, for death might be caused, and still the crime not amount to murder; malice being the main ingredient which distinguished that from other degrees of homicide, which were various.  With the single exception of the statement made by the dying man, there was nothing in the present case but the evidence of circumstances, which it was necessary particularly to weigh.  There was also the absence of any proof of long preconcerted malice; the meeting adpeared [sic] to have been purely accidental, as the prisoner had been invited by Bayly, on the way from his own house, to go up and sit an hour with the old man.  There was therefore the total absence of any thing like a malicious intention; as, it did not appear from any evidence that the parties had ever seen each other before that same day, when they met for the purpose of extricating a cow from the mire.  Under such circumstances, then, did the Jury believe, that the declaration made by the deceased contained a statement of every part of the occurrence as it took place?  Dying declarations were tender things to deal with.  The law only admitted them on the principle, that a man dying speaks undee [sic] the same obligation as he would on oath; but the law, at the same time, requires that; the party should be in extremis; that he had a full conviction on his mind of the state he was in, and had abandoned all hopes of surviving; because, if such was not proved, it did not come within the reason upon which the law admitted declarations of that nature.  In the present case, the deceased appeared to have been under the influence of strong feeling.  His last words appeared to have been "Oh, you villain!"  And His Honor put it to the Jury, whether such an expression would appear to have emanated from a person in that state of making his peace with all the world, dying in that universal forgiveness with all mankind, which the law contemplated; and whether a declaration, made under such feelings was made under the same obligation as if delivered on oath, and that the prisoner had the opportunity of cross-examination.  His Honor knew that he was treading on delicate ground in leaving the point to a Jury, as it had been laid down as a mere question of law; but he was rather inclined to think, with a learned Judge who had held it to be one of fact for the Jury under the direction of the Court.  He did not think that short and summary statement contained all the circumstances of the case; and, in such a case, it was most material to have every circumstance and every expression, if possible.  It did not come within the compass of probability that the prisoner, under a passing invitation, would have gone and broken open the door and committed that violence without some sort of provocation; and the most reasonable conclusion, seeing that they had only presumption from which to judge, appeared to be that at which the witness Bayly had percived [sic] namely that when the prisoner went to the house, the deceased had endeavoured to turn him out, and that a quarrel had in consequence arose; particularly, seeing that there was strong positive proof, that up to that day, the parties were strangers to each other.  It was a case, however, entirely on the consideration of the Jury; but His Honor was of opinion, taking all the circumstances together, it was not one upon which a conviction for murder could safely rest; whether the Jury considered the prisoner guilty of manslaughter it was for them to decide

The Jury found a verdict --- Guilty of manslaughter.  Remanded.

 

 

Hearing, 14 May 1827

Source: Australian, 16 May 1827

 

Timothy Shea, Alias Shean, found guilty of manslaughter, was next put to the bar.  The Court in passing sentence on this prisoner said, it would avail itself of a power which it derived from a late statute, which enabled a Judge to award aggravated punishment in cases of manslaughter, where the circumstances that accompanied the crime were of a heinous character; in such light did the Court view the present case, and was therefore called upon to visit the offender with severe punishment.  The sentence of the Court was that he should be transported for seven years.

 

Notes

[1 ] See also Australian, 16 May 1827.

Published by the Division of Law, Macquarie University