Skip to Content

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

R. v. Mothershead [1838] NSWSupC 3

military defendants in crime, convict victim - murder - Hassan's Walls - convicts, iron gang

Supreme Court of New South Wales

Burton J., 6 February 1838

Source: Australian, 9 February 1838[ 1]

Peter Mothershead, a private in H. M. 88th Regt., was indicted for the wilful murder of James Leary, between Hassans Walls and Bowen's Hollow, on the 28th November last, by stabbing him with a bayonet on both the sides, and in the right shoulder, from the effects of which he lingered until the 1st December, and then died.  A second count described the cause of death to have been by blows or kicks on the belly, breast, and sides.  It appeared that the prisoner, who formed one of the military guard stationed over an ironed gang at Bowen's Hollow, was, on the day laid in the indictment, escorting with a comrade named Harrison, a gang of three convicts, who were drawing a hand-cart from Hassans Walls to Bowen's Hollow.  The convicts were a man named Howard, another named Ivison, and the deceased.  On the road they met a man driving a team of bullocks, to whom Leary requested the soldiers to give him permission to speak, and they granted the request.  Leary contrived to obtain a bottle of spirits from this man, which he and Ivison, who were pushing the cart behind, while Howard was in the bibs, drank between them.  The consequence was, that they both soon became drunk, and the deceased particularly abusive, and obstreperous.  He was not able to do his work at the hand-cart, rather hanging on by it, than pushing it forward.  At length he layed down in the road, and upon the prisoner desiring him to go on, he replied that he would ``see the soldier d--d first."  The prisoner charged at him with his bayonet, and said he would make him go on.  The deceased then went to the side of the road, as if with the view of escaping - a most hopeless achievement however, be being very drunk, and in heavy irons.  The prisoner followed the deceased, and it was at this spot, that the unfortunate man met with the injuries which occasioned his death, although the witnesses Howard and Harrison, (Ivison being too drunk to witness anything) deposed that they did not see the wounds inflicted.  The deceased however, fell, saying ``I am stabbed," after which he was put into the cart, and conveyed to the stockade hospital at Cox's River, into which establishment he was admitted as a patient.  Surgeon John Reid, of H. M. 80th Regiment, who had charge of that hospital, deposed that when he first saw the deceased, the latter was in a very low state, which he the Surgeon, first attributed to loss of blood from his wounds, of which on the following morning he took a minute inspection.  He also questioned the deceased as to how the transaction occurred, he being at the time in so exhausted a state, that he must have known his end was approaching.  The deceased told the Surgeon that it was Mothershead who had stabbed him - that both the soldiers had got drunk on the road, and that in that state, they had attacked him.  The deceased lingered in an exhausted and almost insensible state, being scarcely able to make respiration, until the afternoon of the 1st December, when he died.  After his death, Dr. Reid made a careful examination of the body, when he found one punctured wound on the left side, about an inch and a quarter in length, but which appeared to be merely superficial, having glanced alongside the rib.  There was another wound on the right side, about two inches and a half in length, and penetrated in a slanting direction downwards, but it did not reach far enough to divide the membrane which covers the pleura.  The third wound was in the back, under the right shoulder, and penetrated in a similar direction to the last, about two inches and a half to the blade bone.  All these wounds, which were three cornered, appeared to have been inflicted by a bayonet, and the two last, from the nature of them, would seem to have been given while the deceased was lying on the ground.  They were none of them however sufficient to have caused death - but upon dissecting back the integuments of the right side, there was discovered, without any external indication, a dreadfully morbid appearance of the muscles, commencing from over the fifth rib, and extending about four inches upwards, which might have been produced from a violent blow with the butt end of a musket, or by a severe kick, or by a fall from a considerable height on some projecting object.  On opening the cavity of the chest, the right lung was found completely gorged with a dark thin fluid in quantity about two quarts rendering it quite incapable of performing its functions.  The fluid appeared to be extravasated or effused blood from some of the vessels on that side which had been ruptured from the violent injury last described.   This was the cause of the deceased's death and it appeared to have been a matter of surprise to the Surgeon, that the deceased should have so long survived so extensive an injury.  The defence set up was that the deceased was endeavouring to escape; that he had wrested the musket out of the prisoner's hand, and that the prisoner was therefore obliged to act in the manner he had done.  There was considerable discrepancy between the evidence of Howard and that of Harrison, the latter swearing that the deceased had his hand on the stock of the musket, at a few inches from the butt end, as it was being carried on the prisoner's shoulder; while Howard swore that the deceased's hand was on the muzzle of the piece, but whether for the purpose of warding off the meditated thrust at him, or to disarm the solider, he could not say.  His Honor Mr. Justice Burton, in a luminous address to the jury, explained to them the law of the case.  He observed that Mothershead might be considered in the light of a gaoler, responsible for the safe custody of his prisoner; and he therefore had arms placed in his hands, which however he must only use according to the necessity of the case.  The question for the consideration of the jury was therefore, had he gone beyond that necessity in the present instance? and if so, was the act which occasioned the deceased's death, committed under such circumstances as would make the offence murder, or reduce it to the milder one of manslaughter?  The jury after a short consideration returned a verdict of Guilty of Manslaughter, upon which the learned Judge addressed the prisoner in a most impressive manner as to the magnitude of his offence.  His Honor stated that he quite coincided in the propriety of the verdict returned.  He was also of opinion that the deceased did not attempt either to disarm the prisoner, or to abscond - but, that his only offence was, abusive and insubordinate conduct arising from intoxication, into which state the prisoner at the bar himself had contributed to place the deceased, by a laxity of discipline.  The learned judge then passed sentence of fourteen years transportation upon the prisoner.



[ 1]See also Sydney Herald,8 February 1838; Sydney Gazette, 8 February 1838.  This case was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 32.

Published by the Division of Law, Macquarie University