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

R. v. Johnstone [1840] NSWSupC 17

murder, by police, police, defendants in crime, Morpeth, manslaughter

Supreme Court of New South Wales

Dowling C.J., 6 May 1840

Source: Sydney Herald, 13 May 1840[1]

John Johnstone, late constable in the Morpeth Police, was indicted for the wilful murder of Richard Darlington, at Morpeth, on the 9th of last March.  It appeared that on the evening of the day laid in the indictment, the prisoner observing the deceased, who was in liquor, interrupting the people going along the highway, in the exercise of his duty as a constable, took him in charge for the purpose of lodging him in the station-house, and in order to enable him to lodge the deceased there, he obtained the assistance of two other persons connected with the Morpeth Police.  When getting him along the prisoner and deceased kept arguing and irritating each other, and the deceased was told by the prisoner that if he did not go on he would shoot him; the prisoner kept urging him on to the station-house, and for the purpose of locking him in, was in the act of reaching out his left arm for the key, from the keeper of the station-house, when the pistol which was in his right hand went off, the shot lodging in the back of the deceased, whose clothes were set on fire by the fire from the pistol, which was about a foot long; the deceased lingered for four days, having previous to his death made a declaration, charging the prisoner with having caused his death.  After the death of Darlington, an inquest was held on the body, when the jury under the direction of the Coroner, returned a verdict of Accidental Death.  The Attorney-General seeing the depositions, thought that the case ought to be investigated and for that purpose he had brought it before the Supreme Court.  It was proved that the prisoner, after the pistol was fired, appeared stunned at what had occurred, remained in a state of stupor for about a quarter of an hour, but afterwards appeared very sorry for the event, and gave himself into custody for having shot the deceased.  His Honor, in commenting on the case, condemned the indiscriminate use of fire-arms by the constabulary when on ordinary duty, and pointed out the illegality of their carrying fire-arms when on town duty.  The Jury returned a verdict of Guilty of Manslaughter.

            His Honor, in passing sentence on the prisoner, adverted to the reckless conduct of the prisoner in taking his pistol from his belt in order to compel the deceased to go to the watchhouse, at a time when he had other persons belonging to the police to assist him, and also pointed out the harsh manner in which he behaved throughout the whole affair; he called the prisoner's attention to the favorable view which the jury had taken of his conduct, and informed him that had they returned a verdict against him on the first count he would certainly have passed sentence of death on him.  As it was he did not see that there were any mitigating circumstances in the prisoner's case which could warrant him in exercising that leniency which, as the administrator of the laws had vested in him.  He then sentenced him to be transported for seven years.

Notes

[1]              See also Australian, 9 May 1840; Sydney Gazette, 12 May 1840.

Published by the Division of Law, Macquarie University