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

R v Poignand [1836] NSWSupC 6

attempted murder - assault - legal practitioner, criminal defendant - imprisonment for debt - self-defence

Supreme Court of New South Wales

Burton J., 11 February 1836

Source: Sydney Herald, 15 February 1836[ 1]

Mr. George Louis Poignand was indicted for assaulting John Taylor, with intent to kill, to maim, or to do some grievous bodily harm, at Sydney, on the 10th of January last.

The particulars of this case have already been fully before the public.  Taylor, the prosecutor, was employed as a Sheriff's bailiff, at the time of the alleged assault, and had the prisoner in custody in his house, in Castlereagh-street, while Kingsmill, the principal Sheriff's officer remained outside.  The prisoner, who is one of the Attorneys of the Supreme Court, and was therefore well known to the bailiff, refused to accompany him, but told him to return at a certain hour, and that he should be paid the amount of the writ; which he declined doing, and insisted on the prisoner's going along with him in custody.  Prisoner refused to do so, and warned the prosecutor at his peril to use force, as the arrest was illegal, he having been previously arrested upon the same writ, and allowed to depart on his promise to pay the amount at a future day.  The prisoner then went into another room and brought out a sword, with which he threatened to strike the bailiff if he approached; a struggle ensued, and the latter received a very slight wound on the head.

James Kingsmill, the Sheriff's officer, stated that during the time the prosecutor was in the house of the prisoner, he remained outside in the street; a delay of some time took place, but at last he was alarmed by loud cries of murder from within, and forced open the door; he then saw the prisoner with a sword in his hand, and the prosecutor bleeding from a wound on the head which he said the prisoner had inflicted upon his attempting to take him.

Upon the part of the prisoner, it was contended by Mr. Foster, that, inasmuch as the second arrest was clearly illegal, and the prosecutor a trespasser, the prisoner was justified in freeing himself from unlawful custody.

His Honor said that the case was one for the Jury, upon the evidence.[2 ]

Several witnesses, some of them residents in his house, and others living in the adjoining houses, were then called, who declared most positively that there was no cry of murder on the occasion; and that the wound was inflicted accidentally in the struggle.  A number of respectable persons also gave the prisoner the highest character for mild and peaceable manners and disposition.

The learned Judge summed up the evidence, and told the Jury that they must be satisfied, from all the circumstances of the case, that the prisoner really did inflict the wound with the sword, intending to kill or to do the prosecutor some grievous bodily harm, as charged against him in the information because if the wound was given in an attempt to escape from unlawful custody, he would not be convicted.  The Jury found the prisoner Not Guilty.

 

Notes

[ 1] See also Australian, 16 February 1836; Sydney Gazette, 13 February 1836.  For the notebook record of the trial judge, see Burton, Notes of Criminal Cases, vol. 24, State Records of New South Wales, 2/2425, p. 42, noting his civil status as ``one of the Attys of the Court".

[2 ] Both the Australian and the Sydney Gazette reported that Burton J. overruled this objection.  According to the Australian, the judge observed ``that no arrest was legal but that on the 18th, Kingsmill being then present, and his name being the only one in the warrant, the other two arrests even if they did take place, were imaginary."

Published by the Division of Law, Macquarie University