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

R. v. Manley [1834] NSWSupC 88

murder - manslaughter - sentencing discretion - self-defence - provocation

Supreme Court of New South Wales

Dowling J., 8 August 1834

Source: Sydney Herald, 11 August 1834[ 1]

Friday. - Francis Manley stood indicted for the wilful murder of William Cook, by striking him on the head with a stick, at ----, in the county of St. Vincent, on the 14th day of May last.

-- I am overseer to Dr. Reid; the prisoner was an assigned shepherd; I knew a man named William Cook; he is now dead; he lived only twenty-five hours after receiving a blow from the prisoner at the bar; this occurred at one of my master's sheep stations, about fifty miles distant from his residence; on the day laid in the indictment, I and the prisoner were in one of the sheep-folds, when the deceased and another man, who were removing from one station to another, came up; some words took place between deceased and the prisoner, respecting a robbery alleged to have taken place three or four days before, the prisoner observing that deceased had been blamed for the robbery, and that had it not been for John (meaning himself) he would have been blamed for more; deceased told him that if he repeated those words he would knock him down; the prisoner replied, ``No, you won't," when he made a blow at the prisoner, who ran out of the sheepfold; deceased ran after him with a hurdle-fork in his hand, when the prisoner took up a hurdle to defend himself with; deceased made two or three blows at the prisoner, when the fork broke over the hurdle; he prisoner and the deceased then closed, when I ran up and parted them; I turned my back towards the deceased to speak to the prisoner, when deceased struck the prisoner several blows on the head with the remaining part of the fork, which he still held in his hand, on which the prisoner fell down senseless; I raised him up, and told him to go away; I returned to the sheepfold; when the prisoner had got about sixteen yards from the deceased, he observed, ``I can't get satisfaction now, I won't be allowed - but I'll be revenged in less than twenty-four hours," deceased answered, ``If you do I'll have your life - I'll murder you;" the prisoner immediately returned, and struck deceased a blow with a hurdle-pole which knocked him down, and he never rose afterwards; he died next day; I was present at the inquest; he had a wound over the right temple which bled very much; prisoner did not offer to run away, and the same day was taken into custody; the deceased appeared to have an ill feeling towards the prisoner; I have known the prisoner about three years, and always considered him an inoffensive man; deceased had been told that the prisoner was in the habit of taking his vegetables; deceased was about twenty-two, and the prisoner I should take to be about thirty-four or thirty-five; deceased was a stouter and more robust man; there was another man present, but he has since been drowned; the deceased and the prisoner were so close together that deceased might have been more violent than I saw; he was in a great passion; his conduct was sufficient, indeed, to irritate the prisoner; if the prisoner had not held the hurdle over his head in order to defend himself, the deceased would have inflicted a severe blow on him; the hurdle pole was a heavy weapon, about three inches in diameter and three feet and a half in length; such an instrument would inflict a mortal wound; deceased struck at prisoner with that weapon, and knocked him down senseless; there were two large cuts in his head; he was bleeding as he went towards his hut; from the time he recovered till he struck deceased was about a minute; I think the prisoner would have gone to his hut, as I ordered him, if deceased had not expressed himself in the manner before stated; before the prisoner struck deceased he said to him, ``For God's sake go away, I want nothing further to do with you;" I asked him what he meant by threatening to be revenged of deceased, when he said he would go to Captain McKellar, the magistrate; I did not understand him to mean that he would take the life of the deceased; deceased made use of several expressions of that nature, but I cannot say particularly what they were; deceased was a quarrelsome man, and I had had occasion to remove two shepherds from him, being apprehensive that something serious might occur from his violence; when deceased said he would have the prisoner's life, he (the prisoner) was in the act of going away; the deceased had a stick in his hand when he was struck by the prisoner, the point of which was in the ground, and he was in the act of raising it; the prisoner was about twelve or sixteen yards distant when he returned and struck the deceased; deceased did not strike the prisoner at that time.

Duncan McKellar, Esq. - I am a Magistrate of the Colony; in the month of May last, I, as a Magistrate, held an inquest on the body of William Cook, an assigned servant to Dr. Reid; I examined two witnesses, one of which has since been drowned; on examining the body, a wound appeared above the left temple, the eye was much discoloured from the effect of the blow, which appeared to have been inflicted by a heavy blunt instrument; the prisoner had three wounds on his head, had bled much, and appeared to be suffering from ill-treatment; I am of opinion that, if the blows on the head of the prisoner, had been inflicted on the same part as those of the head of the deceased, they would have had the same effect.

Dr. Reid. - The prisoner has been in my service about two years, I never heard any thing against his character for humanity; I reside about fifty miles from the sheep station, and have not seen much of the prisoner, but if his conduct had been ill, it would have been reported to me by the overseer.

In putting the case to the Jury, his Honor observed, that in point of law, he felt warranted in directing them to return a verdict of Not Guilty as to the charge of murder - but, it would be fore them to consider whether, under all the circumstances of the case, the prisoner had not been guilty of manslaughter, in returning to inflict a blow on the deceased, when he might have escaped from his reach.  The Jury returned a general verdict of Not Guilty.  His Honor then informed the prisoner, that had a verdict of manslaughter been pronounced against him, he would merely fined him one shilling.  The prisoner who expressed to the Court his sincere regret for the fatal occurrence, was discharged, and handed over to his master.

 

Notes

[1 ] See also Sydney Gazette, 12 August 1834; and for the trial notes, Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3283, vol. 100, p. 130.

Published by the Division of Law, Macquarie University