Skip to Content

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

R. v. Trigg [1839] NSWSupC 83

murder, provocation - manslaughter - self defence - ships, discipline on - ship's crew

Supreme Court of New South Wales

Dowling C.J., 1 November 1839

Source: Sydney Herald, 4 November 1839[1] 

FRIDAY -- Before the Chief Justice.

John William Trigg was indicted for the wilful murder of Thomas Flynn, by shooting him on board the Sesostris, at sea, on the 12th of August.

The prisoner was chief officer of the ship Sesostris, and the deceased was a seaman belonging to the same vessel.  Flynn, from the evidence, appeared to have been a quiet inoffensive man when sober, but when drunk was a most desperate vagabond, and being a very powerful man was the terror of the whole ship.  The crew was in a very mutinous, disorderly state, and there was a great deal of drunkenness; indeed, to such a pitch did they carry their audacity, that they stole a whole cask of beer from the quarter-deck where it was lashed, and drank it in the forecastle.  About three weeks before the occurrence referred to took place, Flynn was handcuffed by the officers of the ship, when the irons were forcibly taken off by the crew, and thrown overboard, and one of the seamen threatened to chop off the chief officer's hands for endeavouring to interfere.  The deceased had on more than one occasion threatened the life both of the captain and mate.  On the night in question Flynn went aft and upon being asked what he wanted, said, the doctor; the doctor was called but did not come immediately; and the chief officer put his hand on Flynn's shoulder and directed him to go forward: he did not go, and Trigg again requested him to do so, when Flynn struck him and closed with him; it was a very dark night, raining and blowing fresh, and Trigg and Flynn slipped towards the bulwarks; Flynn then repeated the blow, and Mr. Nichol, a passenger who had just come on deck, walked over towards them with the intention of assisting Mr. Trigg, but just as he put his arm round Flynn Mr. Trigg fired a bullet through his head.  The captain and some of the passengers who were in the cabin immediately came out, and Flynn was taken down below and died a few hours afterwards.

Mr. Hustler addressed the jury at considerable length for the defence, contending that it was evident that Mr. Trigg did not in the darkness of the night and the confusion of the moment see Mr. Nichol come to his assistance, but that having retreated across the deck until he could get no further he was afraid Flynn would murder him, and was justified in firing at him; in consequence of the state of the crew the officers had been directed by the captain to carry pistols.

A great number of witnesses were called for the defence, who proved that Flynn was one of the most powerful men that ever was seen, and a perfect demon; that on the night in question he had, with the most horrible language, threatened to have Mr. Trigg's life; that he had intended to break into the main hold that night but was prevented by the hatches having been battened down.  The account of the affray given by these witnesses varied very much, some stating that there were twenty blows, other that there were only three or four, but three witnesses for the defence swore positively that before the shot was fired, they heard a gurgling kind of noise as if Mr. Trigg was being strangled.  All the witnesses concurred in calling the prisoner a humane kind man.

The Attorney-General replied upon the whole case.

The Chief Justice commenced his summing up by paying some compliments to Mr. Hustler for the earnestness and zeal he had displayed in conducting his client's case.  By law, he said, if one person is proved to have killed another the burthen of shewing that he did it under such circumstances as not to amount to murder is cast upon the prisoner.  If the prisoner is able to rebut the idea of malice by proving that the death wound was inflicted when his blood was heated in consequence of his having been assaulted, the crime is reduced to manslaughter; no words, however provoking they may be, will reduce murder to manslaughter.  Be it that the unfortunate deceased was one of the most worthless vagabonds in existence, still the law holds his life as sacred as that of the highest person in the community: his blood must not be shed,  He thought that under the circumstances he was justified in withdrawing their consideration from the case of murder, and leaving it to them to say was the prisoner guilty of manslaughter; and then the true point for their consideration was, had the prisoner, at the moment he fired the shot, fair grounds for thinking that his life was in danger?  had he no means of escape?  could he not call for and procure assistance?  Nothing but the utmost necessity could justify shedding of blood; and if the jury did not think that necessity existed, they must find him guilty of manslaughter.  The jury retired about a quarter of an hour, and returned a verdict of Guilty of manslaughter, with a strong recommendation to mercy.  Remanded.

 

Dowling C.J., 4 November 1839

Source: Australian, 7 November 1839[2] 

 

At the opening of the Court, the Attorney General prayed judgment upon John William Trigg, convicted of manslaughter.

The prisoner having been placed at the bar, the Chief Justice addressing him, said, the Jury having negatived the defence set up on your trial, namely, that you were justified in taking the life of the deceased, in order to preserve your own, and having found you guilty of manslaughter, the Court is called upon now to award such sentence as the interests of justice demand.  In the administration of the law, Courts of justice know no distinction of persons, and however lamentable it may be to see a person in you station of life in so ignominious a position, the judges must discharge their duties with impartiality.  It is not to be denied that those who have the charge of ships, employed in the merchant service, have a difficult and anxious duty to perform, when encountering the perils of a long and tedious voyage.  Not merely the safety of the property confided to their charge, but the lives of all on board are in their hands.  In proportion, however, to the responsibility thus undertaken, does it behove the interests of all concerned, that the trust reposed should be committed to persons possessed of impertubable [sic] temper, cautious discretion, and sound judgment.  Great allowances are doubtless to be made, when such persons are brought in contact with so much diversity of temper, habits, and dispositions, as are found amongst their crew, but especially amongst their passengers, who, unaccustomed to the restraints of a floating prison, are ill reconciled to the privations necessarily incident to a sea voyage.  Perfect discipline and entire harmony are scarcely to be expected, and perhaps it would be unreasonable to scan with much severity on shore, many of the irregularities and outbreaks of temper which too often have vent in the course of a tempestuous voyage of sixteen thousand miles.  Happily, these are in general allayed before the voyage terminates.  Seldom indeed have they produced so grievous a result as this case presents.  The records of this Court exhibit few instances of inquiries of this nature arising from like causes, and it is to be hoped that they will not become more frequent.  This case is certainly not marked by any cold-blooded spirit of tyranny, for if it had, it is probable that a different verdict would have been found.  It is the case, however, of an officer of a ship on duty, previously armed, in contemplation of possible mischief, resenting in his own sober senses to the death, the assault of a drunken unarmed seaman, under circumstances which did not call for the use of a deadly weapon, and with the means at hand of avoiding such extremities.  The verdict of the Jury has established this proposition.  It may be taken, that the deceased was, when in liquor, a violent man of indomitable temper.  This was his character throughout the voyage, although when sober, he was represented to be a quiet and able seaman; and yet with perfect knowledge of his habits, he appears to have been allowed to have his own sway without any attempt, except in one instance, to put him under restraint.  No sensible reason for this forbearance was offered at the trial, and it appeared that the captain suffered one of his passengers to arm you the night before this transaction, with the deadly weapon in question, for the purpose of resisting any aggression on the part of the unfortunate man now no more.  The testimony of the second mate went to shew, that he also was prepared to resort, by orders of his Captain, to the same extremity under the like circumstances.  It is to be hoped that the spirit thus manifested is not common amongst gentlemen who are plac[e]d in authority over their fellow creatur[e]s.  Indeed, I persuade myself that it is not common.  Should it be, it is proper to intimate to men armed with brief authority, that it is not every act of misconduct in a violent drunken man, which will justify him in depriving him of life.  As a warning to those who may entertain so unbecoming an opinion of their vocation, they should be informed that it is possible they may put themselves in such a position as to call for the last extremity of the law in cases of capital felony.  While proper authority, for the purposes of salutary control, is placed in the hands of persons in this situation, it does not imply an utter abandonment of sound discretion and recklessness of human life.  Fitness to comm[a]nd imparts the possession of self-control, knowledge of human nature, and freedom from headlong passion.  The worst feature in the present case, was, the unusual course taken to arm yourself previously, without any adequate cause proved in evidence.  There had been no disturbance in the ship, from which any just cause of danger need have been apprehended, and what had been suspected, might have been removed by the cautionary vigour of the captain, aided by his officers, and the well affected part of the crew, who, with the numerous male passengers on board, could easily have put down any mutinous spirit in individuals.  Notwithstanding the various and contradictory accounts of the different witnesses to this transaction, it is clear that this unfortunate man might have been reduced to obedient control, or at least personal restraint, before he proceeded to the violence which induced his death.  Means were at hand to put him in confinement, and compel him to obey the lawful commands of his superior.  Unhappily, with full knowledge of his temper, he, a rough seaman, was allowed to give himself up to that recklessness with which intoxication characterises the drunkard, and in the conflict, you, being previously armed, terminated his existence.  Looking upon this as a sudden abandonment of self control, under great provocation -- that, being unfortunately possessed of a deadly weapon, you were in an unguarded moment betrayed into the use of it -- the Court is disposed to take the most mitigating view of your conduct.  The high character you have received from all the witnesses avails you greatly in this stage of the proceedings, when the Court is called upon to exercise a discretion, at all times embarrassing, in awarding punishment.  To a man possessing such a character, your present degrading position must form no inconsiderable portion of suffering, which is, I trust, not a little aggravated by that sense of remorse which a generous mind will assuredly feel in reflecting that by his hand he has ushered a fellow creature into eternity, with all his sins upon his head.  The Court is unwilling by its sentence to blast all your future prospects in life, but it is their bounden duty, for the sake of example, to award such a judgment as shall have a salutary effect in awakening those in authority to a just sense of their responsibility, and that they are not freely to practise [sic] upon the lives of their fellow creatures.  I have had the advantage of a conference with his Honor Mr Justice Willis on all the circumstances of your case.  We have taken into consideration the high character you have hitherto borne, and we have not been unmindful of the opinion expressed by the jury on the conduct of the captain under whose orders you served; and we think upon the whole that the interests of public justice do not demand a greater punishment than a fine, in the hope that the result of this case will have a salutary effect upon your future conduct.  The sentence of this Court is, that you do pay to Her Majesty a fine of £50, and that you be imprisoned until that fine is paid.

 

Notes

[1]  See also Australian, 2 November 1839; Sydney Gazette¸7 November 1839.  For an editorial on the case, see Sydney Herald, 8 November 1839, noting that the mercantile laws of England ``are disgraceful and infamous in the extreme."  They were insufficient in the protection of ships' masters.

[2]  See also Sydney Gazette, 7 November 1839.

Published by the Division of Law, Macquarie University