Skip to Content

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

R. v. Lelland [1828] NSWSupC 61

Lord Ellenborough's Act, attempted murder, police, criminal defendants, police, powers of, drunkenness, offence of, death recorded

Supreme Court of New South Wales

Forbes C.J., 20 August 1828

Source: Australian, 22 August 1828

George Lelland was indicted under Lord Ellenborough's Act, for maliciously shooting at, and wounding, one George Greenhill, at Campbelltown, on the 26th of May last.[1 ]

The information contained four counts; the first, laying the offence to have been committed with intent to kill; the second, with intent to maim; the third, with intent to do some grievous bodily harm; and the fourth, maliciously shooting at, &c.

George Greenhill - is an assigned prisoner of the Crown to the Rev. Thomas Reddall, in the district of Airds.  In the afternoon of the 26th of May last, was proceeding from his own hut, to the house of a man named Rexin, who lived about a quarter mile off; had something to drink there; did not leave for home till late in the evening, when witness met the prisoner and one of the mounted police, who insisted on taking him to the watch-house; witness refused to go with them, and ran off; prisoner said he would fire at him if he did not stop.  The police-man advised him not to do so, saying there was no occasion, as he could easily take witness or any other man that happened to be intoxicated; but scarce had those words been spoken, ere witness received two shots, one in the loins and the other in the middle of the back; believes they were discharged from a pistol, as prisoner had one in his hand.  Cannot understand how the police-man escaped, as at the time of the firing he was within a few yards, in the same direction with witness, who became insensible after receiving the shot, and did not remember any thing till the following morning; was, in consequence, confined to bed for six weeks after.  The grains of shot have not yet been altogether extracted.

Mr. James Kiernan, examined - Is an Assistant Surgeon, residing in the district of Airds.  On Monday, the 26th of May last, was called by one of the mounted police to see last witness, who had been shot, and was then laying in the middle of the road, about a quarter of a mile from the house of a man named Rexin; found he had received two shot wounds, one in the right hip, the other between the shoulder; they were not dangerous wounds, but the man was very ill after, owing as well to his wounds, as to the state of intoxication he was in at the time of receiving them.  Had the wounds been a little closer to the region of the kidneys, they would most probably have proved fatal.  Prisoner, when witness visited him, was quite insensible, owing to the quantity of spirits the man appeared to have swallowed.  The grains of shot have not yet been extracted.

David Fitzgerald - Is attached to the mounted police at Campbell-town.  Remembers being in company with prisoner, between ten and eleven o'clock, on the night of the 26th of May, prisoner called upon witness for assistance, stating that there was a riot at a house which he (prisoner) mentioned; witness went with him, and on proceeding a little distance, met the prosecutor, who was very much intoxicated, and took him into custody; prisoner called him by name.  Greenhill, however, attempted to make his escape, by running off; prisoner then called out to the man to stop, or he would fire; witness desired him not to do so, as he could easily come up with him; prisoner fired almost instantly after.  When the man was secured, prisoner asked witness to lend him his pistol, and he would blow the b ---'s brains out- but he did not know Greenhill was wounded at the time.

This was the case for the prosecution.

The prisoner having called witnesses as to character, - the learned Chief Justice proceeded to sum up the evidence;

A question similar to that before the Court, his Honor would observe, had some time before been raised.  In this Colony, the police assumes a power beyond that which is vested with the police in the Mother Country - a power, in a considerable degree, owing to the mixed nature of the population; being partly made up of emigrants - partly of emancipists, and a large proportion of prisoners of the Crown - people who had been banished from their Mother Country for crimes yet remaining un-expiated, and which continue to lay them under the bar of the law.  But still the police could exercise no wanton act of power.  There however does exist, a certain power in the police of this Colony, his Honor would observe, with which the police of the Mother Country is not invested; but that power was to this extent and no further; - a certain portion of the population of this Colony, it was to be assumed, were transported here for offences which they had committed in the Mother Country.  Certain misconduct in them, made them liable to a summary jurisdiction under the Magistrates.  Drunkenness in a prisoner of the Crown, was one of those offences over which the Justices of the Colony had a summary control.  This, however, was not the case in England; for there, unless a man in his moments of inebriation, betrayed symptoms of riotous behaviour, so as to commit a breach of the peace, he could not be lawfully placed in a state of arrest.  But in this Colony, generally speaking, calculating on the mixed population of the community of the Colony, of which prisoners of the Crown, under sentences of transportation, formed so considerable a mass, the law made that offence of drunkenness, with respect to that class of persons, a punishable offence by the Magistrates, for which such persons were liable, at the discretion of the Justices, either to the infliction of a moderate corporal punishment, or to some days' solitary confinement.  The present, his Honor considered, was an offence which the Magistrates had a power to try pursuant to Act of Parliament; and constables, in consequence, had a right to apprehend a person labouring under conviction of transportation for such an offence as the one described - taking, however, this principle with them, that their own conduct must be guided by temper and moderation - lest they, being peace makers, should become peace-breakers.

His Honor ruled, in the present case, that the prisoner was not justified in discharging fire arms at the prosecutor, and that his conduct throughout, seemed to have been marked by the desire to exercise a wanton and arbitrary usurpation of that power which was vested in him as constable; for though placed in that situation, was a constable, it was to be observed should have a certain scrupulous regard for human life; should deport himself with calmness, for under no circumstances was a constable, considering he possessed only limited power, warranted in firing off a loaded gun at another, though that man be a runaway prisoner, and one who was supposed by the constable, at the time of discharging the fire-arms, to be a felon.  For it would be absurd for a moment, continued His Honor, that a constable accidentally coming up with a person who chose to take it into his head not to obey the peremptory mandate of the constable to stand, when bid so to do, that he should be followed by a discharge of fire-arms.  And again, suppose the party who ran were even guilty of felony; why then perhaps the law, in treating of the offender's case, might not go to the extent of taking away life, and consequently the law can never delegate one subject to do that, which, in all probability, the law, in exercising its severest penalty, would never have inflicted.  For a constable, therefore, to do that which it had appeared in evidence, in the present case, had been done, His Honor considered was assuming an authority wholly unknown to the law.  The question, therefore for the consideration of the Jury, was principally to say by their verdict, whether the prisoner had exceeded the bounds of moderation in the discharge of his duty; and whether, in endeavouring to bring others to justice, he himself had not violated the law.  The Jury would have to collect from the evidence, if, under all the circumstances of the case, the constable was justifiable in having recourse to the extremity to which he had proceeded.[2 ]  The Jury, after some minutes' consultation in their room, brought in a verdict of guilty, but begged leave to recommend the prisoner strongly to mercy in consequence of his previous good character.  The Judge, on receiving the verdict, promised that the recommendation should meet attention.[3 ]


[1 ]See also Sydney Gazette, 22 August 1828.

Despite the apparent seriousness of this crime, in February 1828, the Attorney General agreed to a proposition by the counsel for Joseph Layton that a charge of this kind be abandoned in return for his agreement to pay £5 "by way of mulct to the King."  Source: Australian, 8 February 1828.

In an unnamed case in April 1829, Forbes C.J. ruled that Lord Ellenborough's Act could be breached if a gun were discharged which had only powder and wadding.  If it were near enough, that action could damage a person: Sydney Gazette, 21 May 1829.

[2 ] The Sydney Gazette, 22 August 1828 added the following: "The Counsel also adverted to the applicability of Lord Ellenborough's Act to the Colony, upon which he stated he understood a question had already been raised.  The Chief Justice. - The Supreme Court has decided that that Act applied to the Colony, as part of the Law of England."  On the latter point, see R. v. Smith, January 1825.

[3 ] He was sentenced to death recorded, the court promising to lay before the proper quarter (the Governor and Executive Council) the jury's recommendation on his behalf (Australian, 10 September 1828; Sydney Gazette, 8 September 1828).  (In the sentencing reports, both newspapers spelt his name Lewland.)  Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University