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

R v Cummings [1826] NSWSupC 32

boxing match - manslaughter

Supreme Court of New South Wales

Forbes C.J.,[1 ] 30 May 1826

Source: Sydney Gazette, 31 May 1826


Patrick Cummings was indicted for manslaughter, in causing the death of Nicholas Roach, on the 17th of March last, at Emu Plains.

The deceased, it appeared, was in a state of intoxication, and challenged the prisoner to a fight, and died some days after from the effect of the blows received on that occasion.[2 ]

A person who was the medical attendant at the Hospital, at Emu-plains, deposed that he saw the deceased shortly after the affray, he thought the jaw was fractured, the teeth were all started from their sockets, but the head was altogether so swelled as to prevent his being able to state positively.  He prescribed remedies, which, however, he had reason to suppose, were not attended to by the deceased, and he heard of his death some days after.

On cross-examination by Mr. Rowe, for the prisoner, the witness admitted, that he did not know of his own knowledge, that the deceased was dead, he did not see him dead, but was informed that he was so.

Mr. Rowe submitted that the prisoner was entitled to his acquittal, as in fact, there was no death proved, and for any thing which appeared before the Court, Roach might still be alive. It was one of the averments in the information, that death was caused, and he therefore submitted that the evidence of the Surgeon, who saw him dead, was absolutely necessary.

His Honor stated to the Jury, that he should be loath at any time to let a case go and public justice be defeated, merely on a point of informality, when there was substantial proof that the crime had been committed; but as the law in this case was strict in its punishment, so also it was strict in requiring positive proof of guilt.  He thought there was wanting that direct proof of death having actually taken place, which was necessary to bring home the charge to the prisoner, and he was therefore of opinion, that it was better that the accused should escape, even with some imputation of guilt on him, that the direct and positive rules of evidence should be broken through. --- The Jury returned a verdict of Not Guilty.



[1 ] Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.

[2 ] The Australian, 31 May 1826, described this as a boxing match, before which a quarrel had taken place.  Strangely, it reported that the defendant was found guilty of manslaughter.  The Sydney Gazette's report is more convincing on this occasion.



Published by the Division of Law, Macquarie University