Skip to Content

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

R. v. Leary [1856] NSWSupCMB 10

assault, wounding

Supreme Court of New South Wales, Moreton Bay

Milford J., 20 May 1856

Source: Moreton Bay Courier, 24 May 1856, p. 2

William Leary was indicted for unlawfully and feloniously stabbing Martin Devine, at Drayton, on the 30 th April last. The prisoner pleaded not guilty, but his countenance was of a description that much belied his pleading, being ill-formed and sensual.

The facts were briefly these: Both prisoner and prosecutor were shoemakers in the employ of Mr. David Barry, of Drayton. On the day in question, their employer was absent, and the two journeymen, acting out the old proverb, that "when the cat's away, the mice will play," took to drinking, and ultimately to fighting. The fight lasted some few minutes, and the prisoner said he as "satisfied." The prosecutor then went out for about an hour and a half, and returned to the shop at the expiration of the time. He found Paddy Leary, the prisoner, there, but did not say anything to him. The prosecutor stooped to take up a pipe, when the prisoner fell on him with a knife, and inflicted a deep cut on his arm. Mr. Barry's child was standing near at hand, and Devine tried to keep it out of danger, when he saw Leary drive the knife into his right shoulder. After this, Devine put the child on to some flooring boards, and while turning round, Leary inflicted a third and deeper wound in the back part of the thigh. Devine cried out, and thought he had received his death wound at that time; but he managed to get outside with the child into the yard. A man named Maynard, another workman, and Mrs. Barry, came to the scene almost immediately after the occurrence, and subsequently a constable was sent for, who took Leary into custody. Devine was laid up with the wounds for a week, and he had not yet recovered the use of his thumb on the injured arm. It appeared that Leary had an idea that Devine was their employer's favourite man, and accordingly became jealous of him---hence the disturbance.

William Maynard described the state of the prosecutor at the time of the wounding, and said that he was bleeding very profusely from three cuts, in the arm, shoulder and body. He also deposed to finding the knife produced in court in the prisoner's hand, with the blade concealed as much as possible; there was blood upon the blade.

Mrs. Barry likewise stated what she saw of the matter, and corroborated all that had been said of the nature of the wounds inflicted by the prisoner on Devine; this witness also saw the knife in the hand of Leary.

Evidence was also tendered by Mr. Dolan, chief constable of Drayton, as to the taking of the prisoner, and the state in which he found Devine. Constable Weston took the prisoner to the lock-up, and deposed that he (Leary), upon his arrival at the watch-house, said that he wished he "had killed Devine." This was uttered after the constable had given him the usual caution. Leary also begged Weston, if he brought Devine to the lock-up, to confine him in the same room, as he would (using a filthy expression) "and then kill him afterwards."

The prisoner, on being called in for his defence, merely said that he was "in the dock wrongfully."

The Judge shortly addressed the jury, who immediately returned a verdict of guilty.

His Honour, in addressing the prisoner, characterised the crime as one of the most cold-blooded that had ever come under his notice, being little short of murder. He should visit it with a heavy penalty, and would sentence him to seven years' penal servitude on the public works of the colony.

Published by the Division of Law, Macquarie University