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

R v Otham [1826] NSWSupC 6

murder - mens rea - Bathurst

Supreme Court of New South Wales

Forbes C.J., 21 January 1826

Source: Australian, 26 January 1826


Charles Otham was indicted for the wilful murder of James Kinley, at Bathurst, by shooting him with a pistol.

The deceased had been employed as a shepherd on the farm of Mr. Innes at Bathurst.  On the 25th of November last an entertainment, in celebration of Mr. Innes's marriage, was given to the overseer, labourers, and other domestics employed on the farm: about twenty persons assembled, each man being allowed half a pint of rum.  In the course of the evening a quarrel took place about a difference of country, in which the deceased was engaged.  This dispute was soon dropped, and most of the party dispersed.  Shortly after a man named Griffin was observed with a gun in his hand close to the overseer's hut, in earnest dispute with the deceased, who was armed with a batten.  Otham was between, endeavouring to separate them.  Griffin threatened to shoot the deceased.  Otham still interfered, making use of eyery [sic] effort to drag the latter away from the scene of tumult.  In the conflict Otham's pistol went off, and instantaneously the deceased fell.  Mrs. O. exclaimed, oh! Charles what have you done? he answered, "my God! I have shot the man; it went off unknown to me.  What I've done I must suffer for," and fell on his knees.  When examined before the inquest, the pistol, it was found, would go off at half cock; there would be a difficulty in cocking it with one hand. - Death did not immediately ensue; about eight and twenty hours after removal to the hospital at Bathurst elapsed before the unfortunate man breathed his last.  The third rib had been fractured, and some of the detached pieces forced into the lungs.  The cavity of the stomach was filled with extravasated blood several small shot were also found in it.

The prisoner received an excellent character from Captain Innes, of the Buffs, from which regiment his discharge had been purchased.  Captain Innes had known him ten years; he was regarded by the entire regiment as a quiet, peaceable man.

The Chief Justice in summing up, observed, that the facts for the Jury's consideration were reduced to two points; --- whether the prisoner was justified in bringing out so dangerous a weapon as a pistol; and if, having been so brought out, it was fired intentionally.  After a few minutes consultation, the Jury returned a verdict of Not Guilty.

Published by the Division of Law, Macquarie University