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

R. v. Kirkwood [1837] NSWSupC 56

manslaughter, born alive - abortion - medical profession - unborn child, killing of

Supreme Court of New South Wales

Burton J., 16 August 1837

Source: Sydney Herald, 17 August 1837[ 1]

Wednesday. - Before Mr. Justice Burton and Military Jury.

Henry Kirkwood, a Convict ``medical assistant," was indebted [sic] for manslaughter.  The information set forth that one Esther Quin, alias Walters, being about to be delivered of a male child, the prisoner assaulted the said child and caused his death.  [The assault of the prisoner was described in language such as we cannot publish.]

When the prisoner was arraigned, His Honor asked Mr. Foster if he would address the Court on a point that occurred to him, which was, whether the information for manslaughter could be supported, it appearing on the face of it that the child had not been born.

Mr. Foster submitted to the Court that the information was not maintainable: it was clearly established that murder could not be committed but on a reasonable being in the King's Peace.  If a prisoner did any thing, either by administering potions or otherwise to cause abortion, he was punishable; but it was under a statute and not for murder.  If a child received injury in the womb, from which it died after it was born, it was clearly murder in the person who inflicted the injury.  In the case of Senior, where an injury was inflicted on the head of a child as soon as it appeared, of which it died as soon as it was born, an objection was made that the information could not be supported, the child not being born when the injury was inflicted; the judge overruled the objection, and afterwards, at a meeting of ten of the twelve judges, they unanimously agreed that the conviction was right; but in that case the child was expressly stated to have died as soon as it was born, whereas the information in the present case alleged that the child was about to be born.

The Attorney General said, that the objection had struck him in the same view as it had struck the judge, but as there was some analogy to the case of Senior, where the child had been injured before it was born, he though, it his duty to bring it before the Court; but he had not intended to call for judgment without bringing the matter under the express notice of the Court.  The evidence went to shew that the prisoner, who was a medical assistant at one of the stockades, and stated that he had been sixteen years in a lying-in hospital in England, had unnecessarily interfered and acted in the manner stated in the information; and it would be a great omission in the law if, under the circumstances, the indictment was not maintainable.  The learned gentlemen then said, that it was necessary the public should be protected from the mercenary impudence of men who, without the least authority, act as medical practitioners.  He had intended to suggest a law on the subject, but the duties of his office had hitherto prevented him.

Mr. Foster said that the information alleging that the child was about to be born, it was quite evident that it could not stand; the offence rather appeared to be that the prisoner prevented the child being born.

Mr. Justice Burton said that he was quite satisfied that in case of a conviction the judgment must have been arrested; the principle on which he formed that opinion was very simple; that neither murder nor manslaughter can be committed, except on a living being that has had the breath of life in its nostrils.  The prisoner was certainly punishable for a misdemeanor, if though his criminal negligence he prevented the child from being born.  His Honor said that he could not allow the case to pass without expressing from his seat on the bench, his entire condemnation of the practice of permitting prisoners of the Crown to act as medical practitioners, whether over their fellow prisoners or other people,  Three cases had occurred before him, where it was evident that the grossest impropriety had existed from allowing such people to practice; and he trusted that His Majesty's Attorney General would take some steps to do away with it.  If the law of England preventing grossly ignorant men from practising did not apply here, he thought that it should be made to apply immediately.  He knew the over-whelming duties that oppressed the Crown Officers, and he could feel for them at every step they took; but if the duty of preparing such an act did not rest with them, it rested with some one else.  He did not consider there would be any infringement of the liberty of the subject, were obliged to come before a board properly constituted and prove their ability to undertake what they pretended to.  If the Attorney General agreed with him he would return a verdict of not guilty.

The Attorney-General said he entirely concurred with His Honor.

There being no evidence, the Jury returned a verdict of Not Guilty.

The Attorney General then preferred an indictment for a common assault, but at the suggestion of His Honor it was withdrawn, and the prisoner was remanded.




[1 ] See also Australian, 18 August 1837 reporting the case as follows: ``Henry Kirkwood was indicted for manslaughter.  The particulars of this case are wholly unfit for publication.  The prisoner is a convict, employed in the capacity of medical attendant at one of the Stockades.  He was sent for to attend the accouchement of the wife of a laboring man; and the gist of the offence was, that by the unskilful means he used, he prevented the birth of a male child.  At the suggestion of the learned Judge, Mr Foster moved the point as to whether that form of indictment would lie, the child not having been born alive.  His Honor concurred in the objection, and the information was withdrawn.  The learned Judge expressed himself in strong terms against employing persons in the situation of the prisoner in a medical capacity - and of allowing any unqualified person to practice as a medical man."

This case was also recorded in Burton, Notes of Criminal Cases, vol. 32, State Records of New South Wales, 2/2432, p. 49.  Burton noted that the Attorney General referred in argument to 3rd Just. 50; 1 Hawk. P.C.; and Chitty's Medical Jurisprudence.



Published by the Division of Law, Macquarie University