[manslaughter, distinguished from murder – murder, mens rea – Van Diemen’s Land]

R. v. Ryan

Court of Criminal Jurisdiction

Wylde J.A., 23 January 1821(Hobart session)

Source: Sydney Gazette, 17 February 1821

            The trial for the murder of Henry Dutton, from the blow of a spade received on the head, of which wound he died in about a fortnight after, came on for hearing. The prisoner was John Ryan.

            The first witness called was Peter Dutton, son of the deceased, whose testimony clearly detailed all the facts of the case. This witness stated, that his father was a sawyer, residing in a house at the upper end of the Macquarie-street; and that in consequence of his father hearing a noise about eight o'clock in the evening on the 4th of December last while sitting in his house, made one of the number of spectators looking on at the affray. From ten to twenty persons were present; and the fight was between the prisoner Ryan and a man named Wheeler. During the quarrel, Ryan hit his antagonist a foul blow while down on the ground, which occasioned some of the bye-standers to interfere, and to strike the prisoner two or three times for his cowardly behaviour. Upon the prisoner getting up, he ran into a house near the spot, and immediately returned with the weapon in his hand with which he gave the deceased (who happened to be the first man within his reach) the blow that unhappily caused his death. This happened in sight of the son, and of several others who were witnessing the fight. The son told the prisoner to mind what he was doing of when he attempted to strike him also with the remaining part of the spade, which had been broken into two by the first blow, but which the son and another extricated from his hands; he then ran away, and was pursued, receiving some blows from the spade handle: he was not apprehended for several days afterwards, owing to the recovery of the deceased being expected. This witness further deposed, that the deceased had not taken any part whatever in the fight, but merely stood by as a spectator; and that both he and his father were perfect strangers to the prisoner, and had never spoken to him in their life. Ryan did not endeavour to escape from the hands of justice, but always after seemed very sorry for what had happened, and afterwards made many enquiries respecting the health of the deceased, going very early the following morning to offer any recompense in his power.

            William Thomas deposed, that he saw the prisoner strike the deceased with the spade; and that he had passed several persons previously, who got however out of his way, to his giving him the blow. This witness also proved, that the deceased was not one of the men who had beat the prisoner when he struck Wheeler the foul blow. Another witness gave evidence to the same effect.

            Three Gentlemen of the faculty, who had examined the body of the deceased, deposed, that they had not the least doubt but the wound on his head was the immediate cause of his death, and that no medical treatment could have been of service to him.

            The prisoner put in a written defence, which acknowledging the criminal act of which he had been proved guilty, stated that he had been on a discovery with a gentleman on the Coast of Africa, where he caught the brain fever, which he never got the better of.

            His Honor the Judge Advocate, upon summing up the evidence, observed, in the commencement of his remarks, that there was no crime which harrowed up more of the feelings of man, than the one now for the consideration of the Court; but the law had, in mercy of human infirmities of temper, drawn very nice distinctions in cases of homicide, between actual murder and manslaughter; to such, the Court would, he was satisfied, pay anxious attention as to the charge now for their judgement. The prisoner there could be, no doubt, had been the death of the unfortunate deceased, and the question would be for the Court to consider how far the prisoner had, under the circumstances of the case, that full possession of his reason and self conduct at the time, which were required in legal principle and decision to raise the crime now laid against him in amount to murder; but if on the contrary, that the prisoner had unlawfully killed the deceased without malice, either express or implied, under sudden heat of passion, it would be but manslaughter. The Judge Advocate then entered into a very full elucidation of these two points, remarking, all killing was held to be murder until satisfactorily proved to the contrary; but that in every case a very principal feature for the Court to have in regard was that malice aforethought must appear to have existed before it could amount to murder. We have not room to enter more fully into the matter of remark made on the occasion.

            His Honor then went through the whole of the evidence, with suitable comments; and the court, after a short deliberation, returned a verdict – Manslaughter.

            The Honorable the Judge Advocate, in a very impressive manner, pointed out at some length to the prisoner of the narrow escapes is open to him through the merciful Administration of Criminal Justice, which he trusted would make such impression upon his mind during his future life as duly to restrain his passions, and work that contrition for the past, which would best prepare for that awful judgement which yet awaited him in another world. The prisoner then received sentence of five years transportation to Newcastle.