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

R. v. Hammond [1838] NSWSupC 2

assault - insanity, defence of - Bathurst - schools

Supreme Court of New South Wales

Dowling C.J., 6 February 1838

Source: Sydney Gazette, 8 February 1838[ 1]

 (Before the Chief Justice and a Civil Jury.)

Thomas Hamond, alias Flemming, was indicted for assaulting Jane Boyle at Bathurst Plains, on the 27th November, and cutting her on the neck and face with a knife, with intent to disfigure her.  The information also contained the usual counts, charging the prisoner with intending to do some grievous bodily harm, &c.

Thomas Young - I am a carpenter residing at Bathurst; the prisoner is a teacher in Dr. Fitzsimmon's school; some of Mr. Boyle's children went there; Mr. Boyle keeps a public house at Bathurst; one of his little girls, whose name I do not know, went to the school; in November I saw the prisoner run up to the child and catch her by the chin, but I could not observe what he was doing; this was by the roadside opposite the school house, about two o'clock in the day; the prisoner ran away and left the child, and she made for the school-house, and they all ran out and said the child's throat was cut; I ran after the prisoner and brought him back; two or three hours afterwards I saw the child at Mr. Boyle's house; there was a cut across the throat; Dr. Busby had called and dressed the cut; the dressing was about three and a half inches long; it was straight across the lower part of the neck; the prisoner was searched in my presence, and a razor and a pen knife were found in his pocket, neither of them had any blood on; I did not ask the prisoner what he did to the child; I had not known the prisoner above a fortnight; I did not see anything in the prisoner's hand when he had hold of the child; the prisoner appeared to be sober.

Cross-examined. - The prisoner showed no unwillingness to return with me when I ran after him; there was a man with me when I took the prisoner to the gaol.

George Toole - I am a cooper residing at Bathurst; I remember the day Mr. Boyle's child, Jane Boyle, was cut; I saw the prisoner passing up and down before my door frequently on that morning; I saw him go to the child, who was coming to school; he stooped down, as I thought to kiss the child; I heard the child scream and saw the man run away; I ran to the school, and Mrs. Fitzsimmons said, ``that old villain Flemming has cut the child's throat;" I saw the wound, about an inch and a half across the throat; it did not bleed much; I saw two men bring the prisoner back; he was searched, and a razor and knife found in his pocket; I knew the prisoner for about two weeks before, and until then I did not see anything to lead me to suppose he was of unsound mind, but that morning he looked as if he were deranged; I saw him making faces and opening his mouth; he lost his situation four days before for drunkenness, but Fitzsimmons said he might stop in the house till he got a situation; about ten minutes before he committed the act, I remarked to my wife that he appeared to be getting out of his mind; I do not know whether the girl's name is Boyle or Boyles; the wound was through the skin an eight of an inch.

Cross-examined.  I saw the child walking about three days after the occurrence.

This was the case for the crown.

The prisoner said, that it was stated in the information, that the deed was committed with a knife, and the knife had not been produced, nor had any body seen it; if he had wished to get away from the persons who were taking him to gaol, he could easily have done so; he had always been noted for kindness to children, as he could prove if he had witnesses.  There was a person in the court whom he would call as a witness; he then called

Walter Shutt - I am a farmer residing at the White Rock, Bathurst; I have known the prisoner about twelve months; he kept a school on his own account, to which my children went; I never heard any thing against his character as a man of humanity; the prisoner was formerly church-clerk to the Rev. Mr. Keane; I always considered him a person of sound mind, but I have lately heard say, he was not very sane; he bore a very high character or I should not have sent my nephews to him I should think the prisoner is nearly 50 years of age.

Mr. Toole recalled - I had three children at Fitzsimmons's school when the prisoner was there; I considered the prisoner a kind-hearted man, and I heard he was more kind to this child than to any child in the room; I cannot conceive any bad motive he can have had to this poor child; the child could talk very well; I have never heard of any act of cruelty committed by the prisoner.

His Honor said, that although it was laid in the information that the wound was inflicted with a knife, it was quite sufficient to support the case, if the Jury considered it was inflicted with any cutting or stabbing instrument.  After going through whole of the evidence, His Honor said, that if they considered that either from the effects of drink, or grief of mind at losing his situation, the prisoner was at the time insane, they would return a verdict of not guilty, stating their reason; but if, on the other hand, although there was no apparent motive, yet if they considered he was of sound mind, and from a sudden fit of malice, or, as the law hath it, from being instigated by the devil, he assaulted the poor child, they must find the prisoner guilty.  The Jury retired about five minutes, and acquitted the prisoner on the ground of insanity.  His Honor said the prisoner must be remanded for her Majesty's pleasure.[ 2]



[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 146, State Records of New South Wales, 2/3331, p. 75.

The Australian, 9 February 1838 recorded: ``The prisoner had exhibited symptoms of insanity on the morning of the assault, and upon that ground the jury acquitted him." The Sydney Herald, 8 February, 1838 recorded: ``One of the witnesses said he considered that the prisoner was out of his mind, and remarked so to his wife a few minutes before he assaulted the child.  His Honor told the Jury that if they were of opinion that the prisoner was insane at the time he assaulted the child, they must acquit him on that ground.  The Jury retired about five minutes, and returned a verdict of not guilty, on the ground of insanity."

See also R. v. Adair (Presbyterian minister found not guilty of forgery and uttering on ground of insanity, and confined until His Majesty's pleasure was known): Sydney Gazette, 7 February 1837; Sydney Herald, 9 February 1837.

[ 2]Governor Gipps sent the trial notes to Lord Glenelg on 3 April 1838 (Historical Records of Australia, Series 1, Vol. 19, p. 354).  Until the Queen's pleasure was made known, Gipps caused Hammond to be lodged in the Lunatic Asylum.  He recommended that he should stay there under private treatment during the continuation of his illness, at the discretion of the governor.

Published by the Division of Law, Macquarie University