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

R. v. Saunders [1838] NSWSupC 103

Darlington - murder - manslaughter - Aborigines, killing of - self defence - provocation

Supreme Court of New South Wales

Willis J., 7 November 1838

Source: Sydney Herald, 9 November 1838

Thomas Dickson Saunders was indicted for the wilful murder of Jemmy Ball by shooting him, at Darlington on the 1st September.

William Matthew publican at Darlington.  I recollect seeing the prisoner in company with two native blacks on the 6th of September; they were all perfectly sober; the blacks were carrying a bag of flour, and two bottles; Saunders had a musket in his hand, they sat down near McDougall's paddock, about two hundred yards from my house, I saw Saunders loading the gun in front of my house but I do not know with what; he appeared to be loading it.  I went out and told him to be cautious with it; I did not see him point the gun at the blacks; not intentionally; I saw the gun pointed in the directions of the blacks; I did not see the blacks afterwards dead or alive; Saunders had a gill of rum at my house which he divided with the blacks; I cannot say whether the bottles were full or empty.

Cross-examined by Mr. Foster.  They appeared friendly; I merely told him to be cautious with the gun the same as any one else; I saw him drawing the ramrod from the gun, but I cannot say what he put in it.

Chief Constable Cook.  In consequence of information I had received I caused the prisoner to be apprehended: I was told a black had been shot, I went to the spot where he was lying; he was commonly called Jemmy Ball; he was lying at the back of Kingsbury's shop, about three hundred yards from Matthew's; he was lying on another black fellow's knees; he had been shot in the belly with small shot; Dr. Glennie went and looked at him and gave me some medicine for him, which he took about seven o'clock and he died about an hour afterwards; the next day I sent two constables after the prisoner, who was sawing about four miles in the bush; when he was brought in he told me that the black fellow was shot in a scuffle about the musket, but whether the black was taking the musket from him, or he from the blackfellow I could not understand; it was about a bottle of rum; Saunders had been in for his rations and the blacks were helping him out; Saunders could make a walk of it but he was in a state of intoxication when he was brought in; a man named Richardson who worked with the prisoner was apprehended on this charge but afterwards discharged; when the prisoner was brought before the Court he acknowledged that Richardson was not near him.

Cross-examined: As far as I could learn from Saunders the gun went off accidentally in a scuffle.

George Fawcett constable and scourger at Patrick's Plains; I apprehended Saunders near Hickson's Creek; he asked me what he was apprehended for and I told him for a bad job; he said was it anything about a blackfellow and I said it was; coming down the road the prisoner took me to a stump marked with shot, and said that he and the black had been firing at it; he said he would not have shot the blackfellow if he had not struck him; he showed me a mark on his right knee where he said the blackfellow had struck him; I found a musket and some powder and shot; this is the shot; I saw the black fellow Jemmy Ball lying dead; the blacks had him covered up; the prisoner was sober when I apprehended him; I fetched him to the Chief Constable.

Cross-examined.  I took him to the Chief Constable in company with constable Foster; they went to Matthew's about getting a cart, and Foster and the prisoner called for a glass of either brandy or porter; I had a glass of half-and-half by myself; the glass the prisoner drank out of was the usual size about four to the half-pint; the prisoner was perfectly sober when we delivered him to the Chief Constable: the prisoner drinks a good deal and one glass would have no effect upon him; Foster did not hear what the prisoner told me; I had to run half a mile to apprehend the prisoner and it was coming back that we had the conversation; the prisoner's wife was on the look out; I have not been living with the prisoner's wife since he has been in custody; he told me that he would shoot any blackfellow that struck him.

Re-examined.  I cannot say how much the prisoner had drunk that morning; after I put Richardson on the handcuffs the prisoner said Richardson had nothing to do with it; this was after the prisoner had been at the Chief Constable's and he did appear a little the worse for liquor.

Mr. Glennie surgeon.  About September 6th.  I saw a blackfellow named Jemmy Ball wounded in the abdomen with small shot; there were from ten to twelve holes; it was a mortal wound and caused death.

This was the case for the crown.  The prisoner said nothing in his defence but recalled Mr. Matthews who said I do not think I would believe Fawcett on his oath.

Cross-examined.  I never knew Fawcett to take a false oath; I speak from his general character.

Mr. Driver and a young man named Waller, who had known the prisoner for several years, gave him a character as an industrious, peaceable man.

His Honor commenced summing up by observing, that the native blacks of this Colony are as much under the protection of the laws as any other persons, and all aggressions committed by them on other persons, or by other persons on them, are punishable the same as if committed by or against the Jurors themselves, and it is not because they are native blacks they can be shot at or treated differently from other people.[ 1]  In this case the first question for the jury was whether they believed the evidence of Fawcett, for if they did, they would have to ask themselves, whether they believed that the prisoner, irritated by being struck at, shot the black, and if so they must take into their consideration all the circumstances of the provocation, to see whether the case was reduced to manslaughter.  If the blow given by the blackfellow was such as to excite the immediate wrath of the prisoner, and he thereupon without consideration shot the black it was only manslaughter, for the true distinction between murder and manslaughter is, was the act committed when the prisoner was labouring under such a state of irritation as not to be master of his own understanding.  If they believed that the prisoner coolly and deliberately shot the black after his passion had cooled, it was their duty to find him guilty of murder.  If, as according to the evidence of Cook, the prisoner had at one time stated, the gun accidentally went off in the course of a scuffle, and was not wilfully discharged, the prisoner was of course entitled to his discharge.  The Jury retired about five minutes and returned a verdict of Not Guilty.

His Honor enquired whether the Jury had distinctly understood him that they could acquit the prisoner of murder and find him guilty of manslaughter.  He did not wish to bias the Jury, but he wished to know whether he had made himself clearly understood.  The foreman said that the Jury were of opinion that the gun went off accidentally.



[ 1]The Sydney Gazette, 8 November 1838 recorded this as follows:

``His Honor in summing up said, that the native blacks were to be protected as much as any other subject of Her Majesty, and they were not to be shot at and killed with impunity because they were blacks.  On the evidence of Faucit, it appeared according to Saunders' confession that the blacks had first struck him, then it was for the Jury to decide whether the provocation was sufficient to justify them in returning a verdict of manslaughter.  If they believed Mathews' evidence, that the gun went off accidentally in a struggle, of course the prisoner would be acquitted as a death caused by accident cannot amount to manslaughter.

``His Honor pointed out the passages relating to the prisoner's being intoxicated, and also those reciting conversations in the evidences of Cook and Faucit, and also to the passage where it is said that the prisoner declared he would shoot any black fellow who struck him."

Published by the Division of Law, Macquarie University