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

R v Blake [1832] NSWSupC 3

attempted murder - insanity - self incrimination

Supreme Court of New South Wales

Dowling J., 6 February 1832

Source: Sydney Gazette, 9 February, 1832[ 1]


Thomas Blake was indicted for feloniously shooting at William Kempton with intent to kill and murder, at Sydney, on the 1st of December last. A second count charged the prisoner with an intent to do some grievous bodily harm.

William Kempton examined by the Solicitor-General - I reside in Clarence-street, Sydney; in the afternoon of the 1st of December I was at home, at dinner with my wife and on old man named William Day; I heard a knock at he street door, and Day went to open it, and I heard a person ask if Mr. Kempton was at home; Day let him in and my wife went out and said "walk this way;" the prisoner then came into the room where I was sitting, and without saying a word, raised his hand and fired a pistol off, part of the contents of which passed through my left cheek, and came out over the ear on the same side, carrying away part of the ear; my wife then attempted to take the pistol from him, and he said "All I am sorry for is that I have not killed the old b-g-r"; that is all I heard or saw; I believe day took the pistol from him, a constable was sent for and he was taken into custody; I was confined a month from the effects of the wound

Cross-examined by Mr. Rowe - This was in the middle of the day; it is a public street where I live; the evidences were open; the report of the pistol was heard without, and the house fill with people in five minutes; he said nothing when he came in until he fired the pistol; he then said, "Now you old b--g--r I've got my revenge;" I can't say what occurred after the pistol went off; the prisoner lived at my house for years, off and on; he was bred up by me; I turned him out of the house about a twelvemonth ago; I had not unsettled account with him when he went away; I only gave him food and clothing since his mother died; I gave him no wages; I did not hire him as a servant; I never gave him to understand that there was a considerable property to which he was entitled; he used to be in a state of lunacy when he took too much grog; I feel no enmity to the prisoner, nor never did; perhaps I said last night that I would be the first man to hang the prisoner, and I say so today; I have said it since he shot me, not before; the prisoner is not my son, I am sure; I knew his mother, but I undertake to say he is not my son; his mother never had any property; I bought her out of her lodgings four times; I would hang the prisoner now if I could, and the sooner the better.

Mary Kempton - I am the wife of the last witness; on the afternoon of the 1st of December last, I was at dinner with my husband, when a knock was heard at the door; a man named Day went to open it, and I got up from the table to see who it was; it was the prisoner; he asked me if Mr. Kempton was at home, and I said yes, and asked him to walk in; he walked in, placed himself before Mr. Kempton, and fired a pistol at him; he said something after firing the pistol, but I can't recollect the words; my husband was wounded; I saw the ball after; it passed through the side of his face, and lodged in the door.

Cross-examined - Day was not in the room at the moment the pistol was fired; the door of the room in which my husband was did not open into the street; I asked the prisoner to come in; after the pistol was fire, several persons came in from the street: Mr. Kempton is capable of going out of the house, but not without assistance, either before or since this transaction; I never saw the prisoner in my husband's house before this occasion; I have been married about three months at that time; the prisoner was secured by William Day until the constables came; I did not observe the prisoner's demeanour after he fired the pistol; I was looking after my husband; I think the prisoner was tipsy at the time; he looked so; he looked completely wild; he was very pale; he looked wild or very tipsy; he must have been tipsy or mad; I never saw him before that time.

William Day - I live with the prosecutor; I remember the evening of the 1st of December last; I heard a knock at the door, opened it, and admitted the prisoner; he asked me if Mr. Kempton was in, and I said yes, he was in the parlour; he went into the parlour, said he would have his revenge, and fired off a pistol; I immediately went into the parlour and seized the prisoner with the pistol in his hand; I saw that Mr. Kemptom [sic] was wounded in the cheek, and bleeding; whilst struggling with me on the ground, the prisoner said he was sorry he had not killed him; I understood him to mean Mr. Kempton; I saw a bullet taken out of a door leading to a back bed-room.

Cross-examined - the prisoner struggled very hard to keep the pistol; I have known the prisoner since he was a child; he appeared at this time as if he had been drinking; the whole transaction did not occupy much more than two minutes; I do not know that the prisoner used to be subject to fits of lunacy.

James Tomkinson, a constable, stated that he took the prisoner into custody on the 1st of December last, at Mr. Kempton's house, in Clarence-street; I produce a pistol and a bullet which I got in the house of Kempton; the pistol was given me by a man named Day, and I saw the bullet taken out of the door by a carpenter.

Cross-examined - My opinion, from the appearance of the prisoner at the time, is that he was intoxicated; he was very much agitated; I am sure he was intoxicated; when I went in I asked where the man was who shot Mr. Kempton? the prisoner was sitting in a chair, and said "Here I am, - I am the man"; he was not mad by in liquor; he was not out of his mind.

By the Jury - I think the manner of the prisoner was occasioned by intoxication, not by mental derangement; when I was taking him to the watch-house he frequently said something about his mother; he said very little in the watchhouse while I remained, which was about twenty minutes; a magistrate came there, and, seeing that he was intoxicated, desired him to be shut up till morning; I perceived no disorder of mind in the prisoner save that occasioned by liquor.

This was the case for the prosecution.

The prisoner declined saying any thing to the Jury,

For the defence, the following witnesses were called:-

John Kellet examined by Mr. Rowe - I have known the prisoner for fifteen years; he was apprenticed to me at the business of a cabinet-maker; for the last two years I did not consider him of sound mind; while with us, I have seen him several times take his plane, sweep all his tools and work off the bench, take them up again, replace them on the bench, take them up again, replace them on the bench, and scratch his head; I have frequently observed strange ways with him - different from other persons - and the men used to express alarm at him; I thought he was not right in his head sometimes.

Cross-examined by the Solicitor-General - I keep a public-house now, and still carry on my other business; the prisoner left me about two years ago; what I have related occurred two year ago; from the circumstance of throwing about the work and tools, taking them up again, and scratching his head, I conjecture he was deranged; I have also seen him take his saw out of a piece of wood, and flow the wood with it because the wood would not cut as he wanted it.

By the Jury - a man might knock his tools and work about from being sulky and not liking his work, but I never saw any man have such strange ways; a man sulky and not liking his work might have knocked his saw about in the way I have described, but I never saw a man go on as he used.

Charles Roberts - I am a cabinet-maker in Sydney; I have known the prisoner for 12 or 14 years; he was articled to me for three years, and left me about 12 months ago, after being with me for about 15 months; while he was with me, I used sometimes to think he was out of his mind; he used to throw his work and tools about in a strange manner, and if any one said any thing to him he would act in a furious manner, and knock them down; I used to think, at these times, that he was out of his mind; the men, also, used to complain to me of him; I have often asked him why he got on so, and sometimes he would say that he was cursed in this world, and at others he would speak deliberately and coolly; I thought there was something on his mind about some property; he used frequently to speak of his  mother, and talk about his brothers and himself being robbed of their property; he used to speak of Mr. Kempton and say that he had promised to leave him some houses; he would frequently be for a week or a fortnight without any person being able to get him to speak at all; I have known him to bite one of my apprentices one day, and nearly bit his arm off; I think this happened through the boys calling him mad; both before and after that I took him to be out of his mind; I never spoke to him more than once or twice since he left me; he generally walked with his eyes on the ground; I saw him on the day this transaction took place, in the morning and about one o'clock; he passed my shop about three times, and I saw him walking in a manner as if he was out of his mind or had been drinking; his manners were different that day from any other day I had seen him; he would walk quickly for some time, then stop, and seem as if he was talking to himself.

Re-examined - He had not been in my employment above six weeks till I thought him mad, and yet I continued him in my service for upwards of 12 months after; he had access to my workshop in which there are dangerous weapons for a madman to get hold of; he used to get hold of those weapons, but the apprentices would take them from him; at times I used to think him utterly incapable of distinguishing between right and wrong; I do not think, at these times, it was in consequence of taking too much liquor; I retained him in my house, after I discovered he was out of his mind, from knowing him at school, and knowing his parents; I kept him more as a protector than otherwise.

By the Jury - I never saw the prisoner attempt any injury to himself in these fits; he is generally a sober man, but when in liquor, he is quite mad; his mother was in good circumstances at one time, but I do not think she had any property when she died; she is dead about ten years.

Re examined - The acts of the prisoner which I have related were not the effects of intoxication; I have known them take place when he had not been out of the shop for three weeks; I know that, at one time, his mother was possessed of considerable property and houses, and I have heard they are now in the possession of Mr. Kempton, but I do not know it of my own knowledge; I believe his mother lived with Mr. Kempton for several years.

Joseph Danks - I am a gunsmith; I recollect the day Mr. Kempton was shot; I did not know the prisoner before that day; he came to my house and asked me to sell him a pistol, between 3 and 4 o'clock in the afternoon; it was after my dinner-time; I dine at 1 o'clock; he asked me if I had a pistol to sell him? I looked at him greatly when he asked me, and told him I thought he wanted to injure himself or some other man; this I said on account of his look and manner; he said he did not, that he was going up the country a-christmasing, and he wanted a small pistol to protect himself; he said he wanted a good one, and I took one down, and said this is a good small pistol; he asked me the price; I said fifteen shillings, and he then gave me a £1 note, and showed me a £5 note which he said he had left to keep Christmas with; he then asked me to load it, as he was just going to start, which I did, with powder and a single ball, for which I did not charge him any thing; he went away; I then said to my wife "Just look the way that young man goes, for I am rather doubtful of him"; I then watched him down Market-street, towards the water, in the direction where Mr. Kempton lives; about two hours after, a person came to my shop and told me that Mr. Kempton had been shot by somebody; the prisoner looked very wild when he came into the shop, as if he had been drinking; I thought he was not capable of having a pistol in his possession.

Cross-examined - I believed what the prisoner told me, that he was going up the country; he understood my objection to sell him the pistol I have no doubt; to remove that objection, he showed me the £5 note.

Q. - But, notwithstanding he showed you the £5 note you still thought he was insane, and desired your wife to look after him?

The Solicitor-General objected to the witness answering such a question, unless he was fully aware of its tendency; because if he delivered a loaded pistol to a man whom he knew to be mad, he would be liable to be indicted for a very aggravated misdemeanor.

Mr. Rowe said, he merely put the question; it was for the witness to answer it or not as he liked; but it was not open to the Counsel for the Crown to object to it.

The learned Judge said the objection ought rather to come from the Court in the way of caution to the witness. And His Honor had no hesitation in stating, if the witness admitted he had given a loaded pistol into the hands of a man, believing him to be mad, and that an injury came to any one in consequence, it would be his duty to take measures to have the law put in force against him for a high misdemeanour; and, if convicted, he might rest assured that the law was strong enough to inflict a severe punishment. After the intimation, the witness might answer the question if he liked.

Re-examined - I thought he was tipsey; it was after the conversation I had with the prisoner that I told my wife to look after him.

By the Jury - When the prisoner received the five shillings change out of the £1 note, he looked at it and put it in his pocket.

Thomas Garrett - I am a house carpenter, living in Castlereagh-street; I have known the prisoner six or seven years up to the present time; I remember the time Mr. Kempton was shot; I had seen the prisoner about a week before; I knew him when he was apprentice to Mr. Kellet, and also with Roberts; I always thought he was not right in his head; he worked for me twelve months after he left Mr. Roberts; I used particularly to notice his strange ways at his meals; he lived at my table, and I had an opportunity of observing the peculiarity of his manners; I have also seem him sitting on the bench, when he should have been at work, in a deep study, and have called my wife to observe him; when dinner was done he would take up his chair by the back and front, flourish it over his head, and set it down with violence against the wall; I did not think he was right in his head, and have frequently said so to my wife; I used to think, when he acted in the way I have described, that he was a little lunatic.

By the Court - I felt no apprehension about trusting him with the tools; he made use of them like a madman, but I did not think he would injure himself.

Charles Wright - I am a carpenter and joiner; I know the prisoner at the bar; I know him for four or five years up to the time Mr. Kempton was shot at; he was at my house between twelve and one o'clock that day; he was in my service, and living at my house at that time; I sent him out about nine o'clock after some chair-legs, and he had returned with them before twelve o'clock; he then went out and returned again at dinner hour, but would not take any dinner; for the last three weeks he was with me he would hardly exchange three words in a day with me; his manner during that time was different from what I had ever observed before; he was certainly out of his mind during that time; he broke four saws of mine in one day, one after the other, one of which I had used for eight years before; he said something had come over him,, but he did not know what; on that day Mr. Kempton was shot at, the prisoner appeared to be quite in a wild state; he assigned no reason for not taking dinner, but turned himself round and away he went; such a thing I had never saw him do before.

Cross-examined - He was in my service about four months; there was a great change in his manner the last three weeks; he was nearly in the same way before then; the last three weeks he was worse rather than better; before the last three weeks he used to turn himself round in the most silly sort of manner, and then set to work as if he was going to do all the work of the Colony in a day; during the last three weeks he was in a mad state; on the morning Mr. Kempton was shot at, I sent him out for some chair-legs; I used to trust him with money during the last three weeks; on the morning of this transaction I trusted him with money; I trusted him with £6.

Re-examined - The £6 were in a £5 note and a £1 note.

William Taylor - I am a prisoner in the gaol; I was in the watch-house when the prisoner was brought there on a charge of shooting at Mr. Kempton; he appeared to be in a state of derangement; he kept constantly crying out "What have I done?" --- Is it possible that Thomas Blake could have committed such an act? - "My best friend!" and a number of such expressions; I do not think he could have known right from wrong at that time.

Re-examined - I was not close enough to the prisoner to say whether he was drunk; I think he was insane.

Thomas Wright re-called - The acts I have related as occurring on the day in question, I am satisfied, arose from insanity; the prisoner, I am sure, had not tasted a glass of liquor that day.

This was the case for the prisoners

The learned Judge summed up, leaving the case to the Jury to say whether, at the time the prisoner committed the act charged against him, he was in a state of mind to enable him to distinguish between right and wrong.

The Jury found the prisoner guilty, and the learned Judge immediately passed sentence of deathupon him.


[ 1] In 1836, Patrick Redmond was found not guilty of aggravated assault on the ground of insanity.  The Australian, 12 February 1836, reported the following: ``Patrick Redmond stood indicted for assaulting Gabriel Thompson in the vicinity of Sydney, on the 3d Novembe[r] last, with a knife, with intend to murder, or do him some grievous bodily harm.  The prosecutor stated that he had no wish to injure the prisoner, who was of unsound mind, but merely brought the charge that he might be protected; Redmond, a vacant looking poor creature, gave an incoherent account both of himself and the transaction.  The Jury, under the direction of His Honor, acquitted the prisoner on the ground of insanity, and by the 39th and 40th of Geo. III, he was ordered to be kept in safe custody in the Lunatic Asylum, at Liverpool, during his Majesty's pleasure."

Published by the Division of Law, Macquarie University