Skip to Content

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

R. v. Lewsy [1824] NSWSupC 18

Lord Ellenborough's Act - attempted murder - Port Macquarie

Supreme Court of New South Wales
Forbes C.J., 13 August, 23 September 1824
Source: Sydney Gazette, 30 September 1824


September 23. - On Thursday last the Court re-opened at 11 o'clock; when

William Lewsy was put to the bar. - This prisoner, it will be recollected, had been previously indicted for feloniously committing an assault on the person of Joseph Searson, at the Settlement of Port Macquarie, on the 9th of December last, and wounding the said Joseph Searson on the head with an axe, with intent to kill and murder; but the trial was then put off, at the entreaty of the prisoner, to give him the opportunity of procuring evidence (said to be material) from Port Macquarie. [1]

In support of the information, which was briefly opened by the Learned Attorney General, Joseph Searson was called. He deposed that a dispute had originated between the prisoner at the bar and himself, about a week prior to this transaction, relative to some flour that was owing to the prisoner from the prosecutor in barter for a jacket. A few days subsequent to this quarrel, the prosecutor was ordered by his overseer to procure some wood; and when beyond sight of the station at which the prisoners were worked, the prisoner at the bar overtook him; and, without uttering a word, struck him on the back part of the head with an axe, and then made off. He saw the prisoner afterwards at the hospital, and is positive that he is the man who gave him the blow.

Dr. Moran, Resident Surgeon at Port Macquarie, examined Searson about 9 in the evening on the day he was wounded. He had been conveyed to town from the lime-burners' gang, three miles distant, in a state of insensibility, which arose from an injury in his head. There was a very extensive fracture in the head, and a great depression of the bone: he was so dangerously wounded, as to induce the Surgeon to think life would be extinct in 24 hours. Dr. M. raised the bone from the brain, when sensibility returned; and Searson, the prosecutor, then declared the prisoner at the bar (Lewsy) was the man who had reduced him to that state. From the indentation of the wound, Dr. Moran was of opinion that it had been caused by the back part of an axe.

Other witnesses were called who spoke as to the dispute which existed between the prosecutor and the prisoner, and who further stated that the latter had expressed a determination to be revenged on Searson the first opportunity. It was also given in evidence that the prisoner, after being taken into the presence of the prosecutor, whilst in the hospital, declared that he was sorry he had not terminated his life - as he would then have been prevented telling tales, or some words of similar and conclusive import.

Mr. Rowe made two legal objections in behalf of the prisoner: - 1st, that the charge mentioned in the information did not follow the words in the statute (commonly called Lord Ellenborough's Act) strike and cut - the words in the statute being stab or cut; and 2dly, that, from the evidence which had been adduced, it clearly appeared the instrument was not a sharp instrument, as required by the statute to constitute the capital crime with which the prisoner stood charged, but that the blow was given, and the wound inflicted, by the back of an axe. Mr. Rowe suggested to the Court that the words of the statute must be strictly followed - it being so laid down in Law; and, as there could be no doubt that the information varied with the statute, and that the blow was given by an obtuse and not a sharp instrument, he hoped that the prisoner would have the benefit of these objections.

The Chief Justice, in summing up the case to the Jury, stated, that there was no doubt of the fact that the prisoner at the bar had made a premeditated attack upon Searson, with an intent to kill him; and in the execution of such intent, that he had fractured his head with an axe, so as to cause a depression of the brain, and render the recovery of Searson almost desperate. Had Searson died, there could be no doubt that Lewsy would have been guilty of murder; but the question was, whether the case was within the Act. The statute enacted, that any person who should "stab or cut" another, with intent to murder, should be adjudged guilty of felony. In the construction of the words stab or cut, it had been holden that the offence could only be consummated in the one case by an instrument having a point; or, in the other, a sharp edge[.] Thus it had been decided, that striking with the blunt end of a hammer, or with a square iron bar, was not a cutting or stabbing within the statute. It was for the Jury to determine, whether, from the evidence before them, the wound inflicted on Searson was by the edge, or the back part of the axe. If by the latter, which the evidence of Dr. Moran went strongly to establish, the case was not within the statute. It was not for the Court, or Jury, to speculate upon what might be the law; - the province of the one was, to interpret the law as it found it; and of the other, to determine the evidence. The Jury, without retiring, found the verdict Not Guilty.




[1] See Sydney Gazette, 19 August 1824.

Published by the Division of Law, Macquarie University