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Decisions of the Superior Courts of New South Wales, 1788-1899 |
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Published by the Division of Law Macquarie University |
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[police, criminal defendants - provocation] R. v. McConnell Supreme Court of New South Wales Burton J., 4 August 1835 Source: Sydney Herald, 6 August 1835[1]
Tuesday. - Thomas McConnell stood indicted for shooting at Mary Ann Warden, with intent, &c., at Sydney on the 3rd May last. It appeared that the prisoner was a constable employed at the North Shore, and on the day laid in the indictment, was about embarking at Dawes' Battery to cross the water, when the prosecutrix with four other females commenced a series of annoyances, by throwing stones at him, &c.; in a paroxysm of irritation, he presented a pistol which he had in his hand, at the prosecutrix who had just then thrown a stone at him and wounded her in the arm. His Honor in putting the case to the Jury observed, that although there had been a deal of provocation given, yet the prisoner could have availed himself of a remedy by lodging the offending party in custody; no justification whatever could be offered for putting the life of a fellow-creature in jeopardy under such circumstances. The Jury returned a verdict of Guilty.
Notes [1] The trial was held before Burton J.: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2419, vol. 18, p. 144 (recording the victim as Mary Anne Warne). Burton noted at p. 162 that the jury recommended the prisoner to mercy. Burton sentenced him to death recorded and told the prisoner that he would recommend his sentence to be commuted to imprisonment. 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). For correspondence concerning McConnell's forfeiture of pension due to this conviction, see Historical Records of Australia, Series 1, Vol. 19, p. 89. This includes the trial notes of Burton J. |
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