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

R. v. Byrne [1829] NSWSupC 28

arson - attempt - fear of God - capital punishment, public

Supreme Court of New South Wales

Dowling J., 19 May 1829

Source: Australian, 22 May 1829


Mr. Justice Dowling took the trials at one side of the Court this day.  The first was an arraignment for


Of which Patrick Byrne stood indicted, in having wilfully attempted to set fire to a stack of wheat belonging to Stephen Blake, on the 21st February last, at Lower Minto.  Prosecutor, who rents land, and keeps a small farm at Lower Minto, deposed that about eight o'clock on the above mentioned evening, he happened to be ont [sic] with his wife; they returned together at about eight or nine o'clock, and saw a man drop a fire-stick near prosecutor's stack.  Prosecutor called out fire, fire, upon which his wife ran into the house, and procured water to quench the fire, and prosecutor pursuing the man with the fire-brand, he was finally taken prisoner.  The brand had burnt nothing.  This testimony was corroborated by the prosecutor's wife.

Mr. Justice Dowling considered the case so deficient in the main point necessary to constitute arson, viz. proof of something being destroyed, that he directed the Jury to acquit the prisoner on this fact, as established upon evidence.  The prisoner was accordingly acquitted, and discharged by proclamation, the learned Judge advising him seriously to be careful how he acted in future.  Counsel for the prisoner, Mr. Williams.[1 ]



[1 ] For another arson case, see R. v. Inman and Quilter, Sydney Gazette, 26 November 1831; Australian, 2 December 1831; Sydney Herald, 28 November 1831.  The Herald said that Inman was "indicted for not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil", did set on fire a stack of wheat.

The same formula was used when Thomas Kent was found guilty of arson: Sydney Herald, 20 February 1832.  When he was sentenced to death, he asked the court to let him be hanged near the huts of those who gave evidence against him.  The trial judge said that he would represent his request in the proper quarter, that is, to the governor.

See also R. v. Fitzsimmons, Sydney Gazette, 15 May 1832; Australian, 18 May 1832; Sydney Herald, 14 May 1832 (sentenced to death for arson of a stack of wheat).  Fitzsimmons was hanged: Sydney Gazette, 16 June 1832.  See too, R. v. Williams, Sydney Gazette, Sydney Gazette, 19 May 1832; Sydney Herald, 17 May 1832; Australian, 25 May 1832 (sentenced to death recorded, which usually meant transportation in practice).

Published by the Division of Law, Macquarie University