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

R v Killigree [1830] NSWSupC 59

mens rea, murder, mens rea, manslaughter, military defendants in crime

Supreme Court of New South Wales

Dowling J., 3 September 1830

Source: Sydney Gazette, 4 September 1830[1 ]

John Killigree, was indicted for the wilful murder of Daniel Sullivan, at Sydney, on the 14th July.

John Shea, a private in the 39th regiment, said, I know the prisoner; he was a soldier in the same regiment with me; on the 14th July, I saw him in the Sydney barracks, between the hours of 8 and 9 o'clock at night, very drunk; he slept on the same hammock-pole with me; on the 14th July, I was a picquet on duty that night; I knew the deceased; he was in bed when the prisoner came in, and asleep; another soldier undressed the prisoner, during which time he was very outrageous, and kept shouting out, so that two men were obliged to put him to bed; I think he had his side arms on when he came in; he said several times that he would ``kill," but named no person; he remained quiet in bed for a few minutes, and then made a plunge up, and reached his hand to a belt which hung over his head, and drew a bayonet which was suspended in it, out of the scabbard; it was his own bayonet; when I saw it in his hand I was near the door; he waved the bayonet over his head, and fearing that he would do me some mischief, I got under my own hammock, and immediately after heard the deceased groan; I went to his berth, and saw the bayonet stuck in the side of his head; I called out that the man was killed; the prisoner still remained in his bed, and I pulled the bayonet out of the deceased's head; there were two hammocks between that of the prisoner, and the one in which the deceased lay; if the prisoner was the man who wounded the deceased, he must have thrown the bayonet; he could not have seen the deceased from where he lay; the two hammocks between the deceased's and the prisoner's were empty; other soldiers were in bed, and some moving about the room; I did not see the bayonet leave the hand of the prisoner; I saw him wave it once over his head; he had no bayonet in his hand when I saw one in Sullivan's head; I afterwards ascertained that the bayonet belonged to the prisoner by the number; the deceased died about 11 o'clock the same night in the hospital; no one had been ill-using or abusing the prisoner in the barrack room before he went to bed; he came in angry; I, being on duty, did not like to have my belts pulled about, and called a man named Randal McCarthy to assist me in putting him to bed; other persons saw the affair; after the deceased had received his death wound, the prisoner lay very quiet in bed, until ordered out to the guard house, I never knew of any quarrel between the prisoner and the deceased; I saw the prisoner the same evening, about 6 o'clock, in the barracks, and he appeared to me to be then sober.

Other Witnesses were called, who merely spoke to the same facts, and stated their belief that the bayonet had accidentally left the hand of the prisoner.

Several soldiers of the same regiment gave the prisoner an excellent character for good temper and humanity when sober.

The learned Judge minutely recapitulated the evidence, and left it to the Jury to say, whether the prisoner, intending to do some mischief, had thrown the bayonet, or whether it had accidentally flown out of his hand when flourishing it over his head.  If they should be of opinion that, intending to hurt somebody, no matter whether the deceased or any other person, the prisoner had thrown the bayonet, then his Honor was bound to tell them, that death having ensued in consequence of his illegal act, the prisoner, in the eye of the law, was guilty of murder.  If, on the other hand, they were satisfied, under all the circumstances, that the bayonet had accidentally left his hand, the offence would be reduced tot hat of manslaughter.

The Jury found the prisoner guilty of manslaughter, and the Court, after a suitable admonition, sentenced him to be imprisoned for three calendar months.



[1 ] See also Australian, 10 September 1830.



Published by the Division of Law, Macquarie University