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Decisions of the Nineteenth Century Tasmanian Superior Courts

R v. Bates [1841]

manslaughter by constable, excessive force - police, criminal defendant

Supreme Court of Van Diemen's Land

Montagu J., 9 July 1841

Source: The Cornwall Chronicle and Commercial, Agricultural and Naval Register,

10 July 1841[1]

            James Bates, a constable, was charged with manslaughter, in having early in June last shot a man named Censhire, who was afterwards discovered to be a runaway from theJericho road party.

            From the evidence of several witnesses it appeared that the prisoner and another constable went into the bush to search for bushranger, who were very troublesome to the neighbourhood, and that having come on to a hut, he called out to the inmates to surrender, on which deceased ran out from a hole near to the chimney and attempted to escape; prisoner called to him to stop, and threatened to fire, which he did, Censhire instantly dropped, and did not afterwards speak.

            Mr. Kilgower, a surgeon, stated the case of the death, which was a fracture in the spine and a wound in the heart, it was a gun-shot wound and would cause instant death.

            His Honor, in addressing the jury, said they were called upon previous to giving their verdict to determine, whether in the execution of his duty as a constable, prisoner could have apprehended Censhire without firing, if they came to such conclusion, prisoner was guilty of manslaughter, if they thought otherwise they would acquit him, it was quite evident there was no malice.

The jury after a few minutes consideration returned a verdict of acquittal.

Montagu J., 9 July 1841

Source: The Launceston Courier, 12 July 1841

            James Bates, was indicted for the manslaughter of Samuel Selshire, by shooting him, on the 24th June last.

Mr. Rocher appeared for the prisoner.

The Attorney-General explained to the Jury the nature of the case. The prisoner was a constable and frequent robberies having been committed by runaways in the district where he was stationed, he was sent out for the purpose of apprehending them, in company with another man who would be called before them. They came to a hut in which there was a light, and upon demanding admittance a man who it would be proved was an absconded offender, and whom the prisoner had therefore every right to apprehend, made his escape; the prisoner fired upon him and shot him dead upon the spot. The only reason he had for putting him on his trial was that he thought it just possible he might have apprehended the man by other means than those resorted to, if they were of opinion that he fired sooner than he ought to have done, the information was fully born out and they would find the prisoner guilty of manslaughter. Another reason why he had put him upon his trial was that in a case like this when life had been scarified it was only right that an open and public investigation should be made. If they found the prisoner guilty of manslaughter it would be of a verymitigated description; there was no malice, on the contrary, the prisoner felt most severely the melancholy consequences of the act he had committed.

William Johnson, I am a constable, and was stationed seven miles from the prisoner; I was in company with him on the 24th June in search of runaways, we went to Mr. Sutherland's farm, and saw a man named Sewell, we then all went together to some huts, in one of which we saw a fire, the door was locked, I said "surrender, or I will shoot the first man that stirs." There was a kind of rushing in the hut; the prisoner ran one way and I another, I soon afterwards heard the report of a gun, I heard the prisoner say "stand, or I'll shoot you," I heard a rushing in a scrub, and went there, but could see nothing. I returned to the hut, when the prisoner called to me to bring him some water, he had a man in his arms, I heard a rattling in his throat and said "Bates he is dead," the scrub was about 25 yards from the hut. I afterwards saw the same body at the Inquest.

By Mr. Rocher. - It was a plain open place where Bates was holding the man, there was scrub round it.

Patrick Flinn, I recollect an inquest being held at Campbell Town in June, saw Marsden examine a dead body there.

Joseph Marden, I was at a road party in Jericho in May last, I absconded about the 17th in company with Samuel Shelshire. I know Mr. Sutherland's farm, we were there on the evening of the 2nd June, we were in a hut together, I went outside to get some wood, when I heard the report of a gun, I never saw Shelshire alive since that; I saw him dead at Campbell Town; I had not been in his company for five days till that evening, I came into town, and met him at Norfolk Plains, heard nothing said before the gun went off.

Dr. Kilgour. - I recollect seeing the body of a man at the Bee Hive Hotel, Campbell Town, I made a post mortem examination of that body and found that death was caused by a fracture of the spine, and a wound in the heart, the bullet passed through the heart, it must, have produced instant death.

Mr. Rocher for the defence handed in the written statement of the prisoner taken before the Coroner. It was merely a corroboration of the evidence given above, and disclaiming any intention on the part of the prisoner of injuring the deceased, having fired the gun without raising it to his shoulder or taking any aim, but solely to induce the man to stop by making the bullet pass by his side.

His Honor in summing up, put the case to the Jury in a very plain and simple manner. If they were satisfied that the prisoner could have apprehended the deceased by any other means than that resorted to, they would find him guilty, and if they were satisfied, he couldnot, they would acquit him.

The Jury returned for a few minutes, and brought in a verdict of Not Guilty.

Notes

[1]               See also Hobart Town Advertiser, 16 July 1841.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania