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

R. v. Reynolds [1838] NSWSupC 47

murder - manslaughter - self-defence - Yass - ticket of leave, cancellation of - convict service, on remote stations

Supreme Court of New South Wales

Dowling C.J., 7 May 1838

Source: Sydney Herald, 7 May, 1838[ 1]

Thomas Reynolds was indicted for the wilful murder of James Russel, by inflicting a would in the belly with a knife at Yass, on the 20th of February, of which would he languished until the 24th February, when he died.

The evidence in this case was lengthy but the facts are very simple.  The prisoner was an assigned servant to Mr. James Hassal, stationed at a farm about thirty miles beyond Yass, and the deceased was a free laboring man residing in the same neighbourhood, who had called at the farm on business.  One of the men on the farm had procured four bottle of gin from Walton's store, which was about four miles from the farm; after the gin had bee round once or twice, the deceased said he had never been in the habit of drinking without some merriment, and four or five songs were sang.  About eleven o'clock a free man, named M'Carrol, said there would not be sufficient spirits to last them until the morning, and proposed they should play cards for rum, which was agreed to, and in the mean time an assigned servant, named Nichols, was despatched to Walton's for two gallons of rum.  Nichols, without asking leave of the overseer, took a horse from the station and rode to Walton's store, where he arrived in the middle of the night, and although the people of the store were aware he was a convict, without any other authority (as Nichols described it) than his "word of mouth," he was supplied with two gallons of rum with which he returned to the farm.  In the mean  time a card party was formed at the farm, and they commenced playing all fours for a gallon of rum a game.  The gamblers were Plum, a ticket-of-leave holder, and M'Carrol, a free fencer, both in Mr. Hassal's employ, and two assigned servants, named Russel (not the deceased) and Hancock.  The first game was won by Hancock and M'Carrol, when a dispute arose about the "severity" of the game - in other words, about cheating.  By this time some of them commenced quarrelling, and Reynolds, the prisoner, interfered and fought with Plum.  The deceased was at this time outside the hut attending to his horse, and was invited by the convict Russel, who resided in another hut, to go with him to sleep, but he refused, saying he would go and see them have a civil game at cards.  At this time all the sober men had gone to bed, but it would appear that some of the party had remained up gambling and drinking all night.  Towards morning the deceased called the prisoner a man-eater, and they had a scuffle and quarrel outside the hut and were parted, and the deceased went to another hut where he remained for a few minutes, when he returned to the prisoner's hut, complaining that he had been cut with a knife and demanding satisfaction; the deceased had a small piece of a hurdle in his hand, about two feet long, with which he hit the roof of the hut several times, challenging the prisoner to come out and fight: the prisoner stood inside the hut with a butcher's knife in his hand and although repeatedly requested to put it down refused to do so, saying it was his only protection; the deceased shoved the door of the hut open when the prisoner instantly stabbed him in the belly.  He was conveyed to the overseer's house and died about three days afterwards.  The prisoner in his defence said, that in the scuffle with the deceased he grazed the shin of his heel and was cutting it off when the deceased rushed into the hut and he stabbed him in his own defence.  His Honor said that the question for the jury to determine was, whether the offence amounted to murder or manslaughter.  Under the circumstances it certainly was not justifiable homicide, for nothing would unless a party was so driven to the wall that it was necessary to use it for the protection of his own life - which was certainly not the case, here.  If the jury thought that from the excitement in which the prisoner was at the time, he used the knife because he actually feared an attack from the deceased, they would only find him guilty of manslaughter.  The judge said that the jury having acquitted the prisoner of murder he was spared the painful necessity of passing sentence of death upon him, which would otherwise have been his duty, but there were so many aggravated circumstances in the prisoner's case, and the frequency of such crimes rendered it so necessary that severe examples be made of those who embrue their hands in the blood of their fellow creatures, while laboring under the effects of intoxication, that he should sentence the prisoner to be transported to the penal settlement of Norfolk Island for the remainder of his days.

The Registrar was directed to write to the Governor recommending that Plum's ticket-of-leave be cancelled.  Plum begged very hard for the offence to be overlooked, but the Chief Justice said that no man shall hold a ticket when it is proved that he sits up all night gambling and drinking.

His Honor also ordered the two assigned servants, Nichols and Russel to be turned into barracks, and directed the Registrar to write to the Governor that in his opinion Mr. Hassal is an improper person to have assigned servants.  His Honor said that he should be glad to hear that Mr. Hassal can furnish the Governor with satisfactory explanations, but gentlemen cannot have servants at these remote stations unless they do every thing in their power to keep them in proper order and discipline, and it is the duty of the judges to do something to put an end to the system which appears at present to exist.



[ 1]See also Australian, 11 May 1838; and for a longer version of the evidence, though not the judge's summing up, see Sydney Gazette, 10 May 1838.  The judge's notes are in Dowling, Proceedings of the Supreme Court, Vol. 149, State Records of New South Wales, 2/3334, p. 112, stating that the alleged offence took place at Burrowa.

Published by the Division of Law, Macquarie University