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

R. v. Banham [1842] NSWSupC 29

murder, death recorded - drunkenness, defence of

Supreme Court of New South Wales

Burton J., Maitland Circuit Court, 9-10 March 1842

Source: Australian,15 March 1842 [1]


Before His Honor Judge Burton. - The Jury having been sworn,

            Hugh Banham was placed at the bar, charged with the wilful murder of one Thomas Kennywell, at Newcastle, on 1st January, 1842.

            It was proved in evidence that the prisoner had been seen loitering about the Commercial Inn, at Newcastle, on New Year's Day, and had become so intoxicated and riotous that he had been turned out of the house. About seven o'clock in the evening, he returned, and had a quarrel with a man named Ruggy, and fought with him. He became greatly enraged by the contest, and went into the yard, where he procured a stake, with which he threatened to settle any one who should meddle with him. The deceased, who had been sitting in the hotel, went out into the yard, where he saw the prisoner, who, without any previous quarrel, struck him in the abdomen, and left him on the ground, where he was afterwards found. Deceased expired the following morning.

            Dr. Brook, Colonial Surgeon, certified that death had been caused by violent blows on the abdomen, which had caused morbid adhesion, and consequent inflammation of the intestines. The jury found the prisoner guilty of wilful murder, and he was remanded for sentence...


His HONOR took his seat on the Bench at ten o'clock; and the Jury having been called, proceeded to pass sentence on Hugh Banham, found guilty of murder on the previous day. The prisoner implored mercy on the ground that he was incapable of knowing what he was about; that he remembered nothing of the transaction, and had never quarrelled with or borne malice against deceased. His Honor directed sentence of death to be recorded against the prisoner, but said that he should interfere to have the sentence commuted to transportation to life.

[1] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.   Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.   If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.   The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University