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

R. v. Phoenix, 1837

murder - manslaughter - Campbelltown - drunkenness, defence to crime

Supreme Court of New South Wales

Dowling A.C.J., 3 November 1837

Source: Sydney Herald, 6 November 1837[1 ]

John Phoenix was indicted for the wilful murder of Daniel Hogan, by beating him on the head with a wooden shovel, at Campbelltown, on the 4th of September.

The prisoner and the deceased were both free men in the employ of Mr. Campbell of Harrington Park.  It appeared that on the day laid in the indictment which was on Sunday, Mr. Campbell and Hogan had been to some public house in the neighbourhood of the farm, and returned in the evening with a bottle of rum.  Two of Mr. Campbell's convict servants then went up to the house to ask for some tobacco, and drank some of the rum with Hogan.  Hogan then asked Mr. Campbell for an order for half a gallon of rum, which was given to him, and he went and procured it; a bottle and a half of this rum was drunk in Mr. Campbell's house, when, as he wanted to go to bed, he desired them to go to their huts, and they went away taking the other bottle and half of rum with them.  When they got to Hogan's hut, he said that none of the rum should be drunk until Phoenix came, and Phoenix who was asleep in an adjoining hut was called, and they all (Hogan, Phoenix, and the two convicts) commenced drinking.  The two convicts soon got stupid drunk and went to sleep.  About two o'clock in the morning, a brick-maker, named Brown, and a woman with whom he cohabited, who lived in an adjoining hut, were awoke by what they considered to be the noise of a person chopping wood, and the woman got up and called out to know what was the matter, when the prisoner came out the hut with a wooden shovel in his hand, and said he had got two bears to tame; she called Brown, and they went down to the hut where Hogan was lying on the ground, and Brown had only entered the hut a moment when Phoenix rushed past him, and stuck Hogan a violent blow on the head, upon which Brown knocked him down.  On examination it was found that Hogan's head was dreadfully wounded, and that he was dead.  The two convicts were so beastly drunk that they were unable to give any account of what had taken place; one of them said that he was lying asleep with his head on the table, when the prisoner awoke him and smiled, and said you -- I'll strike you, and hit him on the head with the shovel; but he could not recollect any thing else.  Dr. Kenny described the dreadful condition of the deceased's head from repeated blows.  The prisoner in his defence said, that he was asleep in his hut, when he was called up and made senseless drunk; he denied all knowledge of the murder.

His Honor said that the Jury could have no doubt that the death of Hogan was caused by the prisoner, and it is a maxim of law, that if a person is proved to have caused the death of another, the burthen of proving that he did not do it under circumstances that would amount to murder, lies upon him.  The Jury would judge from all the circumstances, whether the case amounted to murder or man-slaughter.  In law, drunkenness being a voluntary act, is no excuse for any crime that may be committed while under its influence.  Guilty of man-slaughter.  The Jury passed a very strong censure on Mr. Campbell for supplying his men with so much rum, and hoped that the Judge would not let his conduct go unnoticed.  His Honor said that the remark was very creditable to the  Jury, and ordered the two convicts that were in attendance on the Court, to be sent to barracks until the Governor's pleasure is known.


Dowling A.C.J., Burton and Willis JJ, 18 November 1837

Source: Sydney Herald, 20 November 1837[2 ]

John Phoenix, convicted before the Acting Chief Justice of manslaughter.  His Honor in passing sentence on the prisoner described the case another illustration of that awful vice which reduces the Colony to the depth of depravity.

To be transported for life.




[ 1] See also Australian, 7 November 1837; Sydney Gazette, 7 November 1837; Dowling, Proceedings of the Supreme Court, Vol. 144, State Records of New South Wales, 2/3329, p. 51.

[2 ] See also Australian, 21 November 1837; Sydney Gazette, 21 November 1837.

Published by the Division of Law, Macquarie University