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

R. v. Moyes [1855] NSWSupCMB 12

assault, wounding - insanity - drunkenness, defence to crime

Supreme Court of New South Wales, Moreton Bay

Purefoy A.J., 22 November 1855

Source: Moreton Bay Courier, 24 November 1855

James Moyes pleaded not guilty to an indictment charging him with unlawfully, feloniously, and maliciously wounding William Tarras, at Brisbane, on the 16 th of August last.--- The prisoner was defended by Mr. Faucett, instructed by Mr. D.F. Roberts.

[The column is heavily creased.]

The circumstances of this case have already appeared in these columns, hence it will be unnecessary entirely to recapitulate the evidence which was brought forward in support of the charge, but merely to give a slight resume of the facts. The prisoner was much addicted to drinking, and at times, when intoxicated, was seized with delirium, not knowing what he did or said. On the 18 th of August, he was sleeping at the same house with Tarras at South Brisbane, and during the night he was p[???]ed to have been wandering about the house---going outside and raising an alarm of fire, and collecting all the furniture within the tenement to save it from the imaginary conflagration. A man named Fitzgerald, who was sleeping with the prosecutor, deposed to hearing something like a blow, and found the prisoner standing near Tarras with an axe in his hand. On examination, it was found that the prosecutor was totally insensible, although there was no signs of a cut having been inflicted. Dr. Bell, who attended him, stated that although there was no incised wound, the blow was evidently severe, and had apparently been inflicted [page 3] with some blunt instrument. So serious were its effects that the medical attendant did not consider him out of danger until the 10 th of September, and he did not recover his senses at all until the 24 th of August.

The case for the prosecution having been closed, Mr. Faucett, on behalf of the prisoner, raised an objection upon the wording of the indictment, which set forth that Moyes had "unlawfully, feloniously, and maliciously wounded " the prosecutor. The evidence of the various witnesses, the medical man more particularly, went to show that no wound had been inflicted, the skin not having been abrased in the slightest degree.

His Honour held the objection to be good, taking as a precedent that case of " Regina v. M'Naughten," which was tried before the English Judges, and in which it had been ruled that, to constitute a wound the skin must be unbroken. In the case before them no wound had, properly speaking, been inflicted, and he should therefore direct the jury to return a verdict of acquittal.

At the instance of the Crown prosecutor, the prisoner was arraigned on a charge of common assault against William Tarras.

This arraignment gave rise to an argument between the prosecutor for the Crown and the defending counsel, in which the point turned upon the question as to whether the prisoner could be tried for the minor offence after he had been acquitted upon the major charge. Mr. Faucett held that it was not competent for the court to do so, while Mr. Holroyd maintained the opposite opinion. His Honour set aside the objection,---after some argumentation on the part of counsel---by quoting as a precedent the case of " Regina v. Bird." In this case, the prisoner was arraigned for the major offence and acquitted, and the same point was raised by counsel as to the competency of the court, as Mr. Faucett now set up in the case of Moyes. The objection was subsequently carried before the fifteen judges of England, weight of whom opposed it, and six were of the opposite opinion.

A fresh jury was then empannelled, and Moyes was arraigned on the charge of common assault, to which he pleaded not guilty, and in which he was still defended by Mr. Faucett.

The evidence was precisely similar to that taken in the last case. In his address to the jury for the defence, Mr. Faucett dwelt more particularly upon the temporary insanity which the prisoner was suffering from at the time he was supposed to inflict the blow.

His Honour summed up, and the jury retired to consider their verdict. On their return into court, one of them pronounced their decision to be "Not guilty of the assault, and not insane through drink." This was contradicted by another juryman, and as they apparently did not know what the verdict really was, they were again locked up. On coming into court the second time the verdict was "The assault not proved; and insanity through intemperance not established," and the prisoner was accordingly discharged.

Published by the Division of Law, Macquarie University