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

R. v. Cottington [1841] NSWSupC 39

attempted murder - Berrima

Supreme Court of New South Wales

Stephen J., 15 April 1841

Source: Australian, 20 April 1841[1]

            The next case was one which had occasioned considerable interest in the New Country, on account of the age and respectability of the party accused. The Court was very much crowded during the whole time. The prisoner, Mr. James Cottington, ofLake Bathurst, stood charged, first, with shooting at, with the intention of murdering, and, in a second count, with an attempt to do some grievous bodily harm, to Thomas Doyle. Cottington had been out on bail, and, on his being called, appeared at the bottom of the table, on the floor of the Court; His Honor, observing this, inquired of the Solicitor-General, how was it that the prisoner was not placed in the dock? as he would never allow any distinction to be made between the poor man and the rich man in any cases of felony which came before him, however, respectable, as in this case, the party might be. Mr. Cottington took his stand immediately at the dock. The Solicitor-General conducted the prosecution, and Mr. Foster and Mr. G. R. Nichols the defence.

            The first witness called was Thomas Doyle, who, on being sworn, said he was a ticket-of-leave man, and was in the service of Mr. Cottington on the 13th January last; remembers the day remarkably well. He, with Connolly, Oakes, and Dicks, had been shearing; they returned just before sun-down, and understanding that their master (the prisoner) had given a glass of grog to the other men, came up to the house to ask for one too. Mr. Cottington was sitting under the verandah, smoking his pipe. They asked him, and he told his overseer to give them a glass each; but he was drunk, and went away without giving them any. Witness and his companions again spoke to their master, and he replied, that when his son John came home, he should give them some. With this assurance they went to the back of the house. When John came home, they all four went round to the front door; one of them knocked several times, but no person answered; seeing it was of no use, they turned to walk away, but while in the act of doing so, Smith, a servant in the house, came out and called out, that the old man was coming with fire-arms. They all set off to run, but in a moment he (witness) felt himself wounded, and heard the report of a gun. He looked round, and seeing his master standing at the corner of the house, with the piece in his hand, felt afraid, as he was not very sober, that he would shoot him again. Witness fell into Oake's arms, who told Cottingham he had wounded one man, and that he had better leave off. The distance he was from the prisoner when the gun went off, was seven or eight yards. Dr. Mould visited him, and examined his wounds.

            Cross-examined by Mr. Foster. - It was a quarter of an hour before sundown when they first spoke to their master under the verandah, and a quarter of an hour after sundown when he received his wounds. At the time his master shot, he had on only his drawers, no coat or waistcoat. Thinks the distance was seven or eight yards. Had worked for the prisoner three years and a-half ago; but at the period to which this evidence has reference, he might have been in his employ eight weeks; always found him a good master, and never had a quarrel or misunderstanding with him. Witness admitted, with considerable reluctance, that he might have said, that after being wounded he ran into the kitchen and hid himself under the table. After being wounded was immediately put to bed, and a surgeon attended him; does not know if the prisoner paid the surgeon's bill; has not himself worked for him since, but his partner has. Examinant was not on horseback within a week from the time of being wounded, for he could not sit up.

            William Oakes, a ticket-of-leave man, the next witness, corroborated the evidence given by the prosecutor; but in his cross-examination he said that the master went into the kitchen and ordered them all off, as they had no business there; and that he might not be able to distinguish who they were. Had always found him kind and liberal.

            Thomas Connolly, on being sworn, gave similar testimony to the two previous witnesses. In his cross-examination he said he had lived on and off, with the prisoner twelve years, and had always met with kind treatment when he deserved it.

            William Smith, sworn. - Is a shoemaker and a ticket-of-leave holder; remembers the 13th of January; heard Mr. Cottington say, "Give me my piece, I'll start those fellows from the door; they have no business there." It was neither light nor dark. Soon afterwards witness heard the report of a gun, and Doyle was wounded.

            Cross-examined. - Won't swear whether master said he would start or startle those fellows. Jackey Jackey (Westwood) was out, and several ticket-of-leave holders had been pressed to go with the constable in search of him.

            George Young Mould. - Is a physician, and resides at Goulburn; was called in on the night of the 13th of January last to examine Doyle, at the house of Mr.Cottington; found three flesh wounds in the loins and the lower parts of the back; one was very slight, another was about one inch and-a-half in depth, and in the third the shot had travelled for two inches and-a-half; Doyle complained of being in great pain, and was evidently very weak from loss of blood; at first examinant thought the case a serious one, but in a day or two the serious symptoms passed away; attended him fourteen or fifteen days; the shots were merely slugs.

            This closed the case for the prosecution.

            Mr. Foster made an admirable defence for the prisoner, and then proceeded to call a number of highly respectable witness to character.

            The Solicitor-General having declined to reply.

            The Judge summed up with great care and exactness, and at considerable length.

            The Jury retired for about twelve minutes, and on their return into Court, delivered a verdict of not guilty.


[1]              This trial was held at Berrima, as to which see Speech to Jury (3), 1841.

Published by the Division of Law, Macquarie University