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

R v Lavery [1826] NSWSupC 10

manslaughter, by soldier - Newcastle - military defendants in crime

Supreme Court of New South Wales

Trial, 9 February 1826

Source: Sydney Gazette, 11 February 1826


Patrick Lavery was indicted for manslaughter, in causing the death of William Finigan, by stabbing him with a bayonet, at Newcastle, on the 25th day of December last.

It appeared in evidence, that on the 25th of December last, a riot took place in Newcastle, between some prisoners of the Crown and two soldiers, who were in a state of intoxication, running through the street with drawn bayonets; information was immediately given of the circumstance, by the Chief Constable, Mr. Muir, to Dr. Brooks, the Magistrate, at that settlement, who directly repaired to the Guard-house, for the purpose of obtaining the assistance of the military, to allay the disturbance.  The guard, however, had previously gone to the scene of action, considerable resistance was made, and several stones thrown at them.  The deceased, who appeared to have been one of the rioters, was taken into custody, by the guard, from whom he ran and was pursued by the prisoner and another soldier.  The deceased ran towards the house of a man named Lynch, who, perceiving his object was to escape from his pursuers, by getting into the house, held the door open, as he stated in evidence, for the purpose of immediately shutting it against the soldiers, when the deceased had entered; the soldiers followed up the pursuit, and were within a short distance of the deceased when he arrived at the door of Lynch's house; one of the soldiers, the prisoner Lavery, not being near enough to lay hold of the deceased, as he ran into the house, made a push at him with his musket, on which a bayonet was fixed; but whether with an intent to introduce the gun between the door and the frame, in such a manner as to prevent it being immediately shut, or to wound the deceased, did not very clearly appear.  The deceased, however, did receive a thrust from the bayonet at this time, which penetrated between the 11th and 12th rib, on the right side of the back-bone and which, though extremely slight in appearance, had punctured a large blood vessel, and caused his death on the following day, from internal bleeding.

The Jury, after a long consultation, returned a verdict of Guilty, accompanied by a strong recommendation to the mercy of the Court, from the nature of the circumstances under which the wound was given, and the extreme liability to such accidents with those carry arms.

Published by the Division of Law, Macquarie University