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

R. v. Brown [1838] NSWSupC 100

attempted murder - convict discipline

Supreme Court of New South Wales

Dowling C.J., 3 November 1838

Source: Sydney Herald, 5 November 1838[ 1]

 

Saturday, November 3rd - Before the Chief Justice and a Civil Jury.

William Brown was indicted for striking William Bailey Parker with a shovel, at Sydney, on the 11th August, with intent to kill and murder him.  A second count charged the prisoner with intent to do him some grievous bodily harm.

The prisoner was a convict belonging to one of the street gangs employed in Sydney.  According to the government regulations these men are allowed to leave off work at two o'clock on Saturdays, but on the day laid in the indictment, the gang to which the prisoner belonged was ordered to remain at work an hour longer in order to remove some rubbish from one of the streets.  Mr. Parker, the sub-inspector of streets, rode up at the time, and the men returned to their work very reluctantly, and Brown was very abusive.  Mr. Parker sent a man for handcuffs for the purpose of sending Brown to the watch-house, when Brown raised his shovel with both hands and made a blow at Mr. Parker's head; Mr. Parker held up his arm, and as his horse shied at the moment, the blow took effect upon Mr. Parker's arm, and unhorsed him.  The prisoner then ran away, but was apprehended by two of the overseers, when he used the most disgusting and violent language, and said, that if every he got his liberty he would have Parker's life.  The prisoner's defence was, that Mr. Parker struck him first, but this was denied by all the witnesses.  His Honor said that this was the first case that had come before the Court under the Acts of Parliament passed in the first year of the reign of her present Majesty.  In the 2nd section of the Victoria 1, it is enacted that if any person by administering poison or striking a blow with any unlawful instrument, shall cause any bodily injury dangerous to life, with intent to murder, the shall, on conviction, suffer death as a felon.  The fourth section of the same act, under which the second count of the information was framed, says, that if any person shall strike another with an unlawful instrument, with intent to do any grievous bodily harm, he shall be transported for any term not less than fifteen years.  With respect to the first count, he thought that as Mr. Parker had not received any injury dangerous to life, the jury might discharge it from their consideration.  As regards the second count, it was for the jury to say, whether, under the circumstances, they considered it was the intention of the prisoner to do Mr. Parker any grievous bodily harm; if they did, as there was not the slightest provocation, they would, of course, find the prisoner guilty.  Guilty.  In praying judgment, the Attorney-General informed the Court that Brown was transported from England for an assault with intent to murder.  His Honor told the prisoner that; luckily for him, the jury had acquitted him on the first count, or he should have been bound to pass sentence of death upon him, which, after what had been stated by the Attorney-General, would most assuredly have been carried into execution.  To be transported to a penal settlement for life.

 

Notes

[ 1]See also Australian, 6 November 1838; Dowling, Proceedings of the Supreme Court, Vol. 155, State Records of New South Wales, 2/3340, p. 19.

Published by the Division of Law, Macquarie University