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

R. v. Bryan [1839] NSWSupC 28

murder - self-defence - Byron's River

Supreme Court of New South Wales

Dowling C.J.,  4 May 1839

Source: Sydney Herald, 6 May 1839[1] 

John Bryan was indicted for the wilful murder of William Kenny, by shooting him at Bryom's Plains, the 2nd September.

The prisoner and the deceased were both assigned to Mr. Peter Macintyre, the one as shepherd, and the other watchman at a distant stati[o]n.  On the day after that laid in the indictment, the former went to another station, and reported to a man named Candler, that Kenny had been absent from the hut all night.  Candler accompanied the prisoner to look for the deceased, when the prisoner said, it was no use going, as he had quarrelled with the deceased the day before, about an ewe which had strayed from the station, and the deceased had threatened to blow his brains out if he did not go and find it: the deceased had taken the musket up, cocked it, and presented it at the prisoner and pulled the trigger, when the piece burnt priming; the deceased proceeded to reprime the piece, and the prisoner took another musket and let drive at the deceased who fell down dead; that he had set up with him the greater part of the night, and then put the body into a water hole to keep it from the native dogs.  The body was found where he described it to be.  The prisoner was spoken of as a quiet well behaved man, and the deceased was said to have been a very quarrelsome bad tempered man, having on one occasion levelled a piece at a fellow servant, who had set fire to some grass, and at another threatened to put his overseer on the fire.[2] 

His Honor told the Jury, that if they believed the statement made by the prisoner, that the deceased had snapped a musket at him, and was repriming it for the purpose of firing at him when the prisoner shot him, it was not murder, but justifiable homicide, for the man's life was in peril and he had a right to defend himself.  Not Guilty.  Discharged.

 

Notes

[1]  See also Sydney Gazette, 7 May 1839; Australian, 7 May 1839.

[2]  The Sydney Gazette, 7 May 1839 noted the following: ``The prisoner in defence merely observed that he fired the shot for self-preservation.  The whole of the men on the station, it appeared had been allowed arms for their protection against the blacks, who, about that time, was very troublesome.

``His Honor, in summing up the evidence, laid much stress up the fact of the deceased being a man of such passionate temper, and of the fact of his having presented a piece at a fellow servant on a former occasion; he told the Jury, that if they believed this, and that the prisoner had fired the piece in self-defence, the act would be justifiable homicide.  The Jury retired for a few moments and returned a verdict of acquittal." 

The Gazette stated that these events took place at a property 450 miles from Sydney, at Byron's River.

Published by the Division of Law, Macquarie University