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

R v Nocton [1835] NSWSupC 87

convicts, iron gang, conditions of - attempted murder - Berrima

Supreme Court of New South Wales

Burton J., 2 November 1835

Source: Sydney Gazette, 3 November 1835[1 ]

Thomas Nocton was indicted for assaulting George Forshaw with an axe on the head and shoulder, at Berrima, on the 10th September last, with intent to kill and murder him.  A second count described the intent to do some grievous bodily harm.  The prosecutor and prisoner were both inmates of an ironed gang, and were employed together working at the stump of a tree.  The prosecutor was struck by the prisoner with a shovel on the shoulder and knocked down, without any provocation on his part, and without making any observation.  The prosecutor then went away to another stump, and commenced working there by himself, upon which the prisoner followed him and the prosecutor falling from weakness, the prisoner struck him on the back with an axe when on the ground.  The prosecutor was not greatly injured by any of the blows; that given with the spade, being given with the flat part of it, and that with the axe with the blunt end.  He was repeating a third blow when the prisoner was secured.  On being taken into custody by the sentries, the prisoner called the prosecutor a b--y dog, and said he had ``come it" about some meat that had been stolen, and brought to the gang.  The prisoner was conveyed before Lieutenant Waddy who commanded the military detachment stationed at Berrima, prior to his committal to take his trial for the offence, on which occasion he made a statement which was not at that time reduced to writing.  The prisoner told Lieutenant Waddy that he was tired of his life and wanted to get hanged, and that he was sorry he had not killed Forshaw.  He said he had no personal animosity to the prosecutor, and that one man was as good to him as another.  In answer to a question put to Lieutenant Waddy from the Court, in consequence of the prisoner's stating that he only received five ounces of bread for a meal, and that he was half starved - Lieutenant W. stated that if he were to give his opinion, he should say that the allowance of provisions to the men in the ironed gang at Berrima was no sufficient for men employed at such hard labor as they are employed at - but it was all the Government allowed them.  The learned Judge hereupon prevented any further discussion on the subject.  An assistant overseer named Henry Wise detailed the circumstances of the case, from which it appeared that Forshaw was more hurt then he described in his evidence, having received a cut in his shoulder with the spade to the extent of half an inch.  The overseer swore that the prisoner struck Forshaw on the head and wrist - this, however, the other denied.  The overseer also stated that the prisoner was in general a good working man, and that he had never had any occasion to find fault with him since he had been in the gang, which was about nine months.  The overseer likewise corroborated the testimony as to no previous quarrel having taken place between the parties, and that the prisoner said he would have his life before he went home.  He said he was tired of his life, and that he (the overseer) knew of no reason for his striking him.  There was a very great discrepancy between the evidence given by the prosecutor, and the overseer, the former making it appear the injury was of a very trivial nature, and the latter describing it as more severe, rendering Forshaw unfit for any thing like adequate labor for the next two or three weeks.  The jury returned a verdict of guilty, on the second count of the indictment; and not guilty on the first.  Remanded for consideration of sentence.  (This case affords a melancholy proof how the insufficiency of food granted to convicts, under durance, will excite them to commit crimes to be executed, rather than submit to evils which they are unable to bear.  We are of opinion with the learned Judge who tried this case that an adequate sufficiency of food must have been allowed; but that through some unexplained cause, the customary allowance must have been curtailed.  Ed.)



[ 1] See also Australian, 10 February 1835.

Published by the Division of Law, Macquarie University