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

R v Griffiths [1826] NSWSupC 58

attempted murder - Lord Ellenborough's Act - attaint - convict evidence - hulk

Supreme Court of New South Wales

Forbes C.J., 6 September 1826

Source: Sydney Gazette, 9 September 1826


John Griffiths, a prisoner on board the Phoenix-hulk, was indicted under the statute of the 43d Geo. 111[1 ] for an assault, with intent to murder, on the person of Hugh Carling, also a prisoner in the hulk, on the 18th day of May last.

Hugh Carling, having been sworn, was proceeding to detail the circumstances of the outrage, when he was interrupted by His Honor the Chief Justice, enquiring whether he was not the man who had, some time since, been tried for a supposed murder, and had sentence of death passed on him.  The witness having replied in the affirmative, His Honor applied to the Crown Officer to know whether he had not some other witnesses from whom the Court would be able to collect the circumstances of the case, as, in point of fact, Carling stood with judgment of death on him, though, from matters which had come to His Honor's knowledge since the trial, he was satisfied of the man's innocence and had recommended him for an absolute pardon, which had been sent home for approval.  The witness was accordingly directed to withdraw.[2 ]

Mr. John Slight, Superintendent of the Hulk Phoenix, deposed, that on the 18th of May, being on shore, he received a note from the Assistant Superintendent, stating that the prisoner had struck Carling with a cleaver, and that he considered the wound mortal; witness went immediately to the visiting surgeon, Dr. McIntyre, and having made him acquainted with the circumstance, they both proceeded on board, where the witness saw Carling with the right side of his face, a little below the eye, dreadfully cut; witness enquired of the prisoner why he had committed such an act, when he replied that Carling had been the cause of sending men to Port Macquarie, and also of having people punished in the hulk, and that, if he had five hundred lives, he would take them and also,  if he had an opportunity, the life of another man on board, who, witness afterwards learnt, was one Powell, one of the boatswain's mates.

By the Court. --- Witness held out no promise to the prisoner to induce him to make this confession; the prisoner admitted striking Carling; he did not say what with; witness did not see any iron about the place; the would appeared to have been inflicted with a sharp instrument.

Edward Powell, a prisoner on board the hulk, acting as boatswain's mate, deposed, that when the assault was committed he was in the rigging taking down some clothes; when he came on deck he saw Carling bleeding from a cut on the right check, as if with an axe; witness asked what had caused it, when some one said that he fell from the rigging, but which witness knew not to be the case, as no other person was there but himself; witness could not say who it was made that reply, as the prisoners were all crowding round; the prisoner was then on the quarter-deck, in charge of the sentry.

James Wright, a corporal in the Buffs, deposed, that he was on duty on board the hulk, on the 18th of May; was sent for by the sentry on the quarter-deck, who told him that the prisoner had come to him, and given himself up, stating that he had murdered a man on the deck.  Mr. Spicer, the Assistant Superintendent, asked the prisoner who he had done in.  He replied that he would not satisfy him by giving him any reason, and that there was another man on board whom he would serve the same way.  A cleaver was found near the wounded man at the time.

John Stewart, a soldier in the Buffs, deposed that he was on duty as sentry on board the hulk, on the 18th of May, when the prisoner came and gave himself up, saying that he had committed murder; Mr. Spicer the Assistant Superintendent, came up, and had him handcuffed; when the prisoner heard that Carling was not dead, he observed it was not his fault, that he meant to kill him, and if he thought the blow which he had given would not have killed him, he should have had another that would, and also that there was another man on board whom he would like to serve the same way.

Mr. Sleight recalled by the Court. --- Witness did not examine the wound on Carling merely saw it as he lay in bed; he was not insensible when witness saw him, but that was some time after the wound was inflicted; never observed the prisoner to exhibit any signs of mental derangement; he was always desperately wicked.

The prisoner being called on for his defence stated, that a quarrel had occurred between himself and Carling relative to a shirt; that Carling used provoking language, and struck him first with a billet of wood.

James Robinson, a prisoner on board the hulk, on being called as a witness on behalf of the prisoner, was questioned by His Honor as to the sentence which he was under, and it appearing that Judgment of death had been recorded against him, His Honor observed, that he was not a competent witness, but desired him, nevertheless, to go on with his testimony.  Witness was not present when the blow was given; heard high words between the prisoner and Carling, and saw a piece of wood in Carling's hand.

Charles Daly, a prisoner, under the same sentence of the last witness, deposed that he heard a dispute, between the prisoner and Carling, about a shirt; saw Carling take up a piece of wood, larger than witness's arm, and make a blow at the prisoner, which he caught on his arm; was not present when the prisoner struck Carling.

His Honor, in summing up the evidence, observed, that the case before the Court was one of difficulty, owing to the peculiar circumstances under which some of the witnesses were placed, and also the absence of a material evidence, that of the surgeon, who could have spoken as to the particular character of the wound.  It was a serious prosecution, and one, the event of which might lead the prisoner to the gibbet, as he was indicted under an Act, which made cutting or wounding, with intent to kill, a capital felony, without benefit of clergy.  His Honor also remarked, that he had gone beyond the law in admitting, as witnesses, person who had sentence of death passed upon them, but he did so, from a consideration, that the outrage was committed in a place where the witnesses were all in a situation not to come regularly before the Court, and on that account he felt himself warranted in receiving testimony, which, under other circumstances, he should have rejected.  The question, then, for the consideration of the Jury, from what had been detailed to them in evidence, was, first, whether the prisoner intended to do some bodily harm; and secondly, whether there appeared to have been that degree of provocation, which, had the man died, would have entitled the prisoner to a verdict of manslaughter, as, under Lord Ellenborough's Act, the violence should be committed in such a way as that it would have been murder had the party died.  Verdict --- Guilty.  Remanded.[3 ]



[1 ]The reference is to Lord Ellenborough's Act.  On the legality of prosecutions under Lord Ellenborough's Act in New South Wales, see R. v. Smith, January 1825.

[2 ]Carling (or Carline) was originally convicted of murder.  He received a pardon for that, and eventually was released from custody, but only after a trial for piracy; see R. v. Webb, 1825; R. v. Flanagan et al., 1827.

[3 ] According to the Australian, 13 September 1826,Griffiths was sentenced to death on 11 September 1826, but Forbes C.J. "said that from some circumstances which had arisen in the case, he should be disposed to recommend a mitigation of the severe part of the sentence."  The Australian said he had been "capitally convicted under the late Lord Ellenborough's act, of cutting and maiming, with intent to kill".  It appears that he was hanged in October 1827: see Archives Office of New South Wales Reel 624: Copies of Letters to the Judicial Establishments, letter from Col Secty. Alexr McLeay to Sheriff John MacKaness, 14 Oct 1826.

Published by the Division of Law, Macquarie University