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

R. v. Kearnes [1839] NSWSupC 23

murder, provocation - manslaughter - self-defence - provocation - Pennant Hills

Supreme Court of New South Wales

Dowling C.J., 1 May 1839

Source: Sydney Herald, 3 May 1839[1] 

Thomas Kearnes was indicted for the wilful murder of Bryan Rowe, by stabbing him with a knife at Pennant Hills, on the 16th March.

The prisoner and the deceased were in partnership as settlers at the Pennant Hills, and their huts were only about ten rods apart.  The fist witness that was called was a neighbour named William Quinlan who stated that he was called to the house of the deceased about half-past nine o'clock on the night of the 16th March, and found him lying on his bed with several stabs in his body; he went to the prisoner and told him of the dangerous state Rowe was in, when he said he was very sorry he was so bad, but he had caught him in bed with his mistress, and that caused the row; the woman afterwards acknowledged to him this was true, al[t]hough she denied it at the inquest; he knew that the prisoner, had warned the deceased away from his house several times, and five or six days before the accident occurred, he saw the prisoner's wife lying drunk on the deceased's bed.  Mr. Surgeon Rutter proved that the deceased had received several wounds from a knife which caused his death.  Captain Forbes, J.P., stated that in consequence of the information which he received from Mr. Rutter, he went to the deceased and found him dying, and without the least hope of life, and took, his statement, which was to the effect, that he went into the prisoner's hut and filled his pipe, when they had some words, and the prisoner struck him, upon which he knocked him down, and the prisoner went into the skilling and returned, and struck him with a knife several times; he believed the prisoner was jealous of him, but he had no occasion as he never caught him in the fact; the prisoner was drunk at the time.

The prisoner in his defence stated, that he had often quarrelled with the deceased, and on the evening in question was cutting tobacco, when the prisoner came in and refused to go out of the hut, prisoner came in and refused to go out of the hut, and struck him; they grappled and went down, and in the scuffle the deceased received the stabs.

The Chief Justice said, that if the Jury were satisfied that the death of the deceased was caused by the prisoner, the question for their consideration was whether it was done under such circumstances as amounted to murder, or any less offence.  If the Jury considered that the prisoner while under irritated feelings from having received a blow from the deceased, and having at the same time a conviction that he had had criminal intercourse with his wife, inflicted the wound, the law in commiseration of the infirmity of human nature, had declared it to be manslaughter.  The prisoner in his defence had stated that the blows were accidentally given in the scuffle, and it was for the Jury to say whether, as sensible men, they believed that to be the case.  Guilty of Manslaughter -- Remanded.[2] 



[1]  See also Sydney Gazette, 2 May 1839; Australian, 4 May 1839.

[2]  On 18 May 1839 he was sentenced to transportation to a penal settlement for life: Sydney Gazette, 21 May 1839; Sydney Herald, 20 May 1839.

Published by the Division of Law, Macquarie University