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

R v Hayden [1835] NSWSupC 88

assault - murder, self-defence - sodomy - homosexual, attack on

Supreme Court of New South Wales

Forbes C.J., 6 November 1835

Source: Sydney Gazette, 7 November 1835

Nicholas Hayden stood indicted with wilfully, maliciously, and malice aforethought, kicking and beating one James Hony, in the month of July.

John O'Laughlin sworn - James Hony was my servant; he died on Friday the 10th of July; he was unwell the previous night; he complained of being very soer [sic] from the blows he had received from the new sawyer; I asked him on the morning of his death whether he would take some tea, as I though his illness might have proceeded from hard drinking the day previous.

Patrick Harnett sworn - I am a surgeon; was called to examine the body of the deceased on the 10th of July; I reside at Goulburn; I found a slight embrasion [sic] on the right knee; the right eye was blackened; there was also a contusion on the forehead; the brain was perfectly healthy; not the slightest appearance of inflammation; on the upper part of the stomach there was a slight contusion; four of the ribs on the left side were fractured, at a distance of three or four inches from the breast bone; one of the ribs protruded through the cavity of the chest, and appeared to have injured the left lung; the inflammation of the pleura, and the left lung, I believe to have caused the man's death; I am positive that violence was the cause of the man's death; he was a very old man.

Cross examined by Mr. Kerr - A fall might have caused the injury; there was a quantity of sawed wood near the hut where the deceased lived; he had been dead about 10 hours when I saw him.

James Kershaw, sworn, I reside at Goulburn Plains; I knew the deceased; I saw him the day before his death; he appeared to me to be as well as I had seen him for some time past; he said he had been shamefully used, I have a shocking pain in my left side now; I believe he died the next morning; when I saw him he was a little in liquor.

James Ryan, sworn, I hold a ticket of leave at Goulburn; I knew the deceased; I slept at O'Laughlin's house on the 8th July; there were five of us slept in the same hut; the prisoner at the bar was one; we all went to bed together, about 11 o'clock; I was awaked by the screams of the deceased; I asked the prisoner at the bar what was the matter; he said the deceased wanted to commit an unnatural crime; he then kicked the deceased in the side, and was going to strike him with a stool, but I would not let him; when I went to bed, the prisoner and two of the men remained up by the fire; they had not quarrelled before going to bed; we all left the public house together; there could have been no quarrel, without my knowing it; we were all apprehonded [sic] for the murder; the prisoner owned kicking the old man, and said he would kick any one, that would be guilty of the like offence; the deceased was in bed, on the ground, when the prisoner struck him.

The learned Judge in putting the case to the jury, very carefully explained to them the difference between murder and manslauehter [sic].  They after a short consultation, returned a verdict of not guilty.

Published by the Division of Law, Macquarie University