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

R. v. Lestil [1838] NSWSupC 42

murder, provocation - manslaughter - military defendants in crime - Morpeth

Supreme Court of New South Wales

Burton J., 1 May 1838

Source: Sydney Herald, 3 May, 1838[ 1]

John Lestil was indicted for the wilful murder of Michael Ready, by striking him on the head and neck with his fist, at Morpeth, on February 8th.

The prisoner and the deceased Ready were both privates in the 28th regiment. On the day laid in the indictment the prisoner had been to Maitland and returned to the barracks in the afternoon, in an extreme state of intoxication, and was put to bed by some of his comrades.  Shortly afterwards the prisoner and a soldier, both of whom were drunk, commenced fighting, and ordered to the guard room by the serjeant on duty; handcuffs were put upon the prisoner, but he managed to pull his right hand out, leaving the handcuff on his left, and escaping from the soldiers retired to the barrack room, where he was followed by several of his comrades, who persuaded him to go to the guard room, but he refused.  Ready was awoke by the noise, and in a half drunken fit staggered towards the prisoner, and persuaded him to go, but he said he would not, and would knock the first man's head off that attempted to take him; Ready went a step closer towards him when the prisoner struck him on the side of the head with his fist; Ready reeled back a step or two towards a bed, and then fell forward on his face, and died instantly.  The next day an inquest was held, and Mr. Lewis, a surgeon residing in the neighbourhood, opened the head; he found the vessels about the head in a very turgid state, and on minute examination found that a small vessel, near the base of the head, had been ruptured, and that there was a small quantity of coagulated blood: there were no marks of external violence to account for this rupture, but there was a small scratch on the face, which looked as if it had been done by a fall upon the ground.  Mr. Lewis was of opinion that in the excited state of the deceased's brain the injury might have been caused by a sudden shock, such as a fall, and it was possible that it might have been caused by passion; he did not think that the rupture of such a small vessel would have caused instant death.  The prisoner in his defence called several witnesses, one of whom swore that when Ready returned to the barracks he complained either of a fall or a blow on the face; and as assigned servant to Mr. E. Sparke swore that on the day of the accident he was going towards the stockade with his master's cart when he gave two drunken soldiers a ride, and that in getting out of the cart one of them fell down; as he did not know Ready, and did not see the body, he could not say whether it was him.  His Honor said that he considered the evidence of Mr. Lewis made it very doubtful whether the blow given by the prisoner was the cause of death; and if they considered that any other cause produced the ruptured vessel, of course the prisoner must be acquitted.  If they believed that the prisoner did cause the death he thought that enough had been proved to show that the crime did not amount to murder: there was proof that the prisoner had been assaulted and apprehended, and that while in hot blood from that provocation he hit the deceased with his fist.  If it had been intended by the Crown to show that the arrest was justifiable in consequence of the prisoner having committed a breach of discipline, then it was necessary that the articles of war should be produced, and that it should be shown that the prisoner was serving under them.  If the jurors were sitting on a court-martial they would then have to take notice of the articles of war, but sitting in a court of common law they could take no notice of them as they had not been proved in evidence before them, but must act according to the common law, which, as there was no offence proved, looked upon the assault committed as a sufficient provocation to reduce the offence from murder to manslaughter.  The jury, after a few minutes' absence, returned a verdict of Not Guilty.

 

Notes

[ 1]See also Australian, 4 May 1838; Sydney Gazette, 3 May 1838.

Published by the Division of Law, Macquarie University