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

R. v. Barlow [1828] NSWSupC 41

Lord Ellenborough's Act, attempted murder, Moreton Bay

Supreme Court of New South Wales

Dowling J., 2 June 1828

Source: Australian, 4 June 1828


William Barlow was next arraigned, being indicted under Lord Ellenborough's Act,[1 ] for cutting and maiming, with intent to kill John Purpel.

Evidence in support of the indictment being adduced, the learned Judge who tried it, Judge Dowling, proceeded to a recapitulation of the whole.  The prisoner, he observed, had been indicted under an Act of Parliament, passed for wise purposes, an Act entitled Lord Ellenborough's Act - an Act, the principal features of which he, the learned Judge, considered it would not be amiss for him to represent to the Jury.  That Act recites, his Honor would observe, that whereas divers quarrels had led to barbarous outrages in divers parts of England and Ireland, tending to murder and to disable divers of his Majesty's subjects, a law should be enacted, from and after the passing of which all or any persons who should wilfully or maliciously shoot, present at, load or fire any fire-arms, or draw a trigger, and discharge the same at, or against any persons, or stab or cut any of his Majesty's subjects, with intent to murder, hurt, maim, or disable any of his said Majesty's subjects, should be adjudged guilty of a capital felony, and suffer death accordingly.  The points which in the estimation of the learned Judge it would be material for the Court to consider in the present case, were whether or no the prisoner had brought himself, according to the general tenor of the evidence produced against him, immediately within the provisions of that Act.  The present indictment having been framed under the particular statute already adverted to, the Jury must be clearly satisfied of this fact before they would be warranted in returning the prisoner as guilty.  Much would depend certainly upon the degree of credibility which the Jury might entrust to the witness's testimony.  Whatever the law of the case might be, if the Jury did not feel disposed to trust implicitly to the oaths of the witnesses called, it would behove them, without hesitating, altogether to acquit the prisoner.  The testimony of the principal witness examined in this case, the learned Judge would give in the words of the witness himself.  I am a prisoner of the crown, that person had deposed.  In the month of October last I was at Moreton Bay.  Prisoner at the bar was there, being also a prisoner of the crown.  I was at work in the Brickfield's on the settlement, when one day in the same month I gave the prisoner a pipe of tobacco to smoke, in return for which he promised that next day he would give me some bread and meat.  I had no words with him at this time.  The day after the day in question, I asked him for the bread and meat he had promised me. - Then I had no words with him, but spoke sharp, when prisoner said he would fight me with his fists I had a shovel in my hand, and told him if he struck me with his fists I would strike him with my shovel.  I was intending to strike him with my shovel, but before I had time to strike, he struck me with an iron poker on my head.  I told the Commandant on the settlement the same thing immediately afterwards. - His Honor would observe the he (witness) had said I would have struck first only I had not time.

John Stone is the next witness called, continued the learned Judge.  He tells you, gentlemen, that he also is a prisoner of the crown; that he was in the Brickfields at the time the affray, alluded to in the preceding evidence.  He saw the prisoner at the bar strike Purpel, who was at the time working in the brickmaking gang.  He saw Purpel with his staff about to strike prisoner, and says that he had no doubt that Purpel would have struck prisoner, had he not defended himself.  Under such circumstances had the wound been inflicted.  What the unhappy man now standing in the dock said afterwards, as to what was his intention in committing the act, to take his own construction upon his own act, and to conclude upon that, would not be equitable.  Gentlemen, concluded the learned Judge, in point of law, whatever your opinion of the case may be, you will be bound to say - not Guilty: - verdict accordingly.


[1 ] On the legality of prosecutions under Lord Ellenborough's Act (49 Geo. 3 c. 58) in New South Wales, see R. v. Smith, 1825.

Published by the Division of Law, Macquarie University