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

R. v. Lowe [1839] NSWSupC 58

murder - manslaughter - sentencing discretion

Supreme Court of New South Wales

Stephen J., 5 August 1839

Source: Australian, 8 August 1839[1] 

MONDAY. -- Before Mr Justice Stephen and a Military Jury.

Thomas Lowe was indicted for the wilfu[l] murder of John Burnett, at Sydney, on the 29th of April.

The prisoner was a constable in the Police, and the deceased was his father in law.  On the day laid in the indictment, the deceased, in company with a surgeon, named Maddox, and a person named Davidson, were drinking together in Mrs Walker's public-house, the St. Andrew's Tavern, in Kent-street, when the prisoner entered the room and threw a large stone which struck the deceased at the back of the right ear, Deceased fell, and on examination it was found, that blood flowed freely from the right ear, and Surgeon Maddox dressed the wound, considering it of little consequence at the time.  The deceased lived for ten days after the blow was given and was well enough to attend at the Police-office and give evidence against the prisoner on a charge of assault with intent to murder.  He became gradually worse and died on the tenth day after the blow was given.

At the death of deceased an inquest was held on the body and a post mortem examination was made.  The surgeon who made the examination was Dr. Salter, a duly qualified surgeon under the colonial Act, who deposed, that he found a complicated fracture of the oecipital bone, and a large quantity of extravasated blood on the base of the brain, which he was of opinion was the cause of death.  Witness said, that without being acquainted with the fact of hermorrage [sic] from the ear, he should have been doubtful as to the fracture presented on the post mortem examination being the cause of death without some posterior cause; but, being told, that considerable hermorrhage [sic] had taken place, he considered that that might have relieved the brain at the time, and that the extravasation might have come gradually on, until the pressure on the brain eventually caused death.  With all the circumstances before him, he was of opinion, that the fracture would have caused death without reference to the intemperate habits of the deceased, and certainly would have caused death in a healthy sober person.  The only doubt which had existed on his mind was removed by the statement of the hermorrhage having taken place outwardly.

Mr Therry, as Crown Prosecutor, urged the reading of the evidence given by the deceased at the Police-office on the charge of assault with intent to kill, but after some argument on the point of its admissibility, Mr Therry withdrew his application and closed his case.

The prisoner in his defence simply averred his innocence, and stated, that the charge against him was mad[e] from bad feelings, as the parties wanted to get him of the premises; he said that he never had any unfriendly feeling towards the deceased, but this part of his statement was contradicted by witnesses, who stated, that he had had frequent quarrels with the deceased; he called two witnesses who could only give a negative character for a short acquaintance with him.

His Honor summed up, and the jury retired for a quarter of an hour, when they returned into Court and asked His Honor whether it was competent for the jury to return a verdict of manslaughter.

His Honor said not, and the foreman then pronounced a verdict of guilty.

The Crown prosecutor then prayed the judgement of the Court, and His Honor addressed the prisoner upon the facts as elicited on the trial, and stated that he had carefully looked through the deposition given by the deceased at the Police-office (which had not been laid before the jury,) in the hope of finding some circumstance in extenuation, but he had not been able to find one; on the contrary, he had found on the face of it that there had been frequent quarrels between them, and that the prisoner had more than once threatened his father-in-law's life.  After a very feeling address to the prisoner, His Honor passed the sentence of death on the prisoner, to be carried into execution at His Excellency the Governor's pleasure.



[1]  See also Sydney Herald, 7 August 1839; Sydney Gazette, 8 August 1839.

Published by the Division of Law, Macquarie University