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

R v McCarthy [1836] NSWSupC 3

attempted murder - Lane Cove - bushrangers - evidence, of riot - reception of English law, Insurrection Act - murder, mens rea - provocation

Supreme Court of New South Wales

Burton J., 8 February 1836

Source: Sydney Herald, 11 February 1836[1 ]

Monday. - Before Mr. Justice Burton and a Jury of Civilians.

Jeremiah McCarthy was capitally indicted under Lord Lansdowne's Act, for attempting to discharge a loaded gun at John Coleman, with intent to kill or do some grievous bodily harm, at Lane Cove, near Sydney.

The Solicitor-General conducted the prosecution; Mr. Stephen defended the prisoner.

From the evidence of the witnesses for the Crown, it appeared that the prisoner had lately been in the employment of Mr. Thomas Hyndes of Sydney, as a sawyer, and resided with a person named Foster, near Kelsey's public-house, at Lane Cove.  On the evening of the Sunday before last Christmas day, he formed one of a party of seven persons who were drinking at Kelsey's, some of whom picked a quarrel with him on the ground of his having shortly before shot a bushranger, in an attempt to apprehend him.  The prisoner, it seems was assaulted and severely beaten on this occasion; upon which he left the house and went to Foster's, where he procured a gun, with which he walked about the neighbourhood, and being seen by Mrs. Kelsey, who - apprehending that in his excited state he might do some mischief - requested Coleman and a man named Atkins to go and take the gun from him.  When they came up with the prisoner he was standing inside the fence which enclosed the premises where he resided; and immediately upon their attempting to seize him, he, according to the positive testimony of Coleman, pointed the gun at the latter, drew the trigger, and the gun burnt priming.  The witness Atkins, however, who was equally close to the prisoner, but at the other side of him, as distinctly swore that no flash in the pan took place - that the only fire produced was the sparks emitted by the flint - and that it was highly probable the lock snapped in the struggle which took place in attempting to disarm the prisoner.   Previous to this, Pimble, the district constable, had been sent for from Kelsey's and on his arrival the prisoner and the gun were given into his custody.  Upon examining the gun it was found to be loaded with powder and shot, but none of the witnesses would undertake to say, from the appearance of the pan, that it had recently burnt priming; and several witnesses who, though not so near the prisoner as Coleman and Atkins, were near enough to distinguish what took place, also swore that they saw no flash nor no smoke.  The witness Coleman also stated, that after the prisoner snapped the gun at him he (prisoner) said that he had mistaken him for a man named Browne, who was one of the party at Kelsey'; and it appeared, besides, that Coleman was not one of those by whom the prisoner had been previously assaulted.

For the defence it was attempted to be shewn that the charge originated against the prisoner out of malice, on account of his having lately made himself active in the pursuit of bushrangers, and having not long before shot one of those marauders.

The witnesses for the prosecution were brought forward to prove, in addition to the evidence to the same effect which had already been elicited from those on the part of the Crown, that the gun was not primed at the time, and therefore not in a condition to do the injury which the prisoner was charged with having intended.  One of these parties (Foster, from whose house the prisoner obtained the gun) swore positively that it was not primed.  He stated that, shortly before, he had himself loaded the gun with powder and shot, for the purpose of shooting some fowls which injured a growing crop of young peas in his garden - that in attempting to discharge it, it would not go off, owing to the bad quality or damp state of the powder; that he put it by without any priming in the pan; that he had no powder in the house at the time the prisoner took the gun with which he might have primed it; and that he had no opportunity of procuring any in the neighbourhood during the time between the commencement and the termination of the series of trnnsactions detailed against the prisoner.  Mrs. Kelsey, the wife of the publican, also stated, that her husband had no powder in his house, and therefore the prisoner could not have obtained any there.  Mr. Thomas Hyndes gave the prisoner an excellent character for sober, industrious, and peaceable conduct, during eighteen months in his service; that he was zealous in the protection of his master's property; and the witness was going on to describe the general lawless state of the neighbourhood., when he was stopped by Solicitor-General objecting to such evidence, which could only be received under the Insurrection Act in Ireland.

The learned Judge summed up the evidence with considerable minuteness and particularity.  His Honor observed, that the case was one of considerable importance to the Public, in consequence of the line of defence which had been adopted, namely, that the charge against the prisoner was the result of a conspiracy formed in revenge, for having made himself active in the apprehension of a bushranger.  It would be the duty, therefore, of the Jury, to weigh well the whole of the testimony in the case, which he would lay before them with such observations as might occur to him to be proper for their consideration, in making up their minds as to the guilt or innocence of the prisoner at the bar.  With respect to the law of the case, the Jury would have to determine two questions, namely, first, was the gun primed at the time when the prisoner was said to have snapped it at the witness Coleman? and, secondly, if it was primed and had gone off, and death had ensued, would the offence have been committed under such circumstances as would have amounted to murder? because, if it would not, then the prisoner could not be convicted upon the present indictment.  Upon the first point, also, they must be satisfied that the gun was primed, or they could not convict the prisoner; for, otherwise, the gun could not be considered, in law, as in a condition to inflict the injury which he was charged with meditating.  This was entirely a question of evidence and belief for the Jury.  With respect to the question, whether the offence, if completed, would have amounted to murder, he was bound to tell them that it would.  Whenever an act of violence might be committed against a person of an individual, and death ensued from a wound inflicted in self-defence, the law, in tenderness to the passions and infirmities of human nature, mitigated the offence to that of manslaughter; but not so when time for deliberation had elapsed - when reason might be presumed to have resumed her throne.  Now, in this case, what were the facts proved from the testimony of all the witnesses?  There was no doubt that the prisoner had been assaulted at Kelsey's; but, then, he left the house, armed himself with a gun, walked about the neighbourhood with it, and was subsequently found, after no very little time had elapsed, in a situation which looked very like lying in wait for some one; for, after he snapped the gun at Coleman, it was in evidence, that he said - ``I did not intend it for you, but for Brown."  But, if an individual, in lawfully intending to kill one person, should happen to kill another, he was equally guilty of murder as if he had completed his original design.  His Honor was therefore bound to tell the Jury, that if death had ensued in the case, it would have amounted to one of murder; and the only point that remained for their consideration (if they believed the witnesses on the other facts) was - were they satisfied that the gun was primed, and in a condition to inflict the injury which the prisoner was charged with meditating?  Upon this part of the case, they had the sole uncorroberated testimony of Coleman, who swore positively that the gun burnt priming - that he saw the flash and smoke.  On the other hand, they had the evidence of Atkins, who was as near to the prisoner as Coleman, and who swore that there was no flash; Atkins's testimony was supported by that of other witnesses, who stated that they were in a situation to see if there had been a flash, and that there was none.  The constable and the other witnesses who examined the pan, could not undertake to say that powder had been recently burnt in it; and there was the testimony of the witnesses for the prisoner, who undertook to swear, from circumstances which they detailed, that the gun was not primed.  The case, therefore, was one which the Jury had to determine solely upon the weight which they might attach to evidence, which certainly did present strong points of discrepancy.

The Jury retired for about ten minutes, and returned into Court with a verdict of Not Guilty, of which, the auditory seemed inclined to manifest their approbation by applause, but the attempts was very properly repressed by the Sheriff's Officer in attendance.

The Judge, in ordering the discharge of the prisoner, warned him against the use of such weapons as that which had, within a very brief space of time, twice placed his life in jeopardy.  His Honor said, it was not his province to enquire the grounds upon which the Jury had formed their opinion, or to dispute the propriety of their verdict; he supposed that they did not credit the evidence of Coleman, respecting the gun having burnt priming, in opposition to the testimony of the other witnesses [the Foreman of the Jury bowed assent]; but it was to be hoped that the prisoner would take warning, and be careful not again to bring himself into such peril. 

The prisoner was then allowed to depart the Court.



[ 1] See also Australian, 12 February 1836.  For the judge's notebook account of the trial, see Burton, Notes of Criminal Cases, vol. 23, State Records of New South Wales, 2/2424, p. 123, noting the prisoner's status at the time of trial as ``free by servitude".

On 9 February 1836, McCarthy was found guilty of forgery: Australian, 12 February 1836.

Published by the Division of Law, Macquarie University