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

R. v. Davis [1789] NSWKR 5; [1789] NSWSupC 5

burglary - capital punishment, first woman hanged in the colony - jury of matrons

Court of Criminal Jurisdiction

Collins J.A., 21 November 1789

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb. 1788 to Oct. 1794, State Records N.S.W., 1147A[1] 

[151] - Ann Davis alias Judith Jones. The Precept being read and the court duly sworn, was charged, for that she on Saturday the fourteenth day of November in the thirtieth year of the reign of our Sovereign Lord George the Third, now King of Great Britain, France and Ireland, Defender of the Faith, at about the hour of four in the afternoon of the same day, with force and arms, at Sydney Cove, in the County of Cumberland the dwelling house of Robert Sidaway there situate, feloniously did break and enter (the prisoner the same Dwelling house then and there being) and four linen shirts of the value of twenty nine shillings and six pence; one cheque shirt of the value of four pence; one linen waistcoat of the value of two shillings; two cambrick handkerchiefs of the value of three shillings; one silk waistcoat of the value of two shillings; one dimety waistcoat of the value of eighteen pence of the goods and chattels of the said Robert Sidaway ; and one linen bed gown of the value of two shillings; one linen apron of the value of eighteen pence; two linen caps of the value of sixpence; one piece of a cap of the value of one penny; one muslin handkerchief of the value of six pence; and one pair of linen pockets of the value of one penny of the goods and chattels of Mary Marshall [152] in the same dwelling house, then and there being found, feloniously did steal, take and carry away, against the peace of one said Lord the King, his Crown and Dignity.

            The prisoner on her arraignment, having pleaded not guilty.

            Robert Sidaway being sworn deposes that on Saturday last the 14th instant about four in the afternoon he was at wash and the bake house which near a quarter of a mile distant from his house. That he left his house about 2 o'clock. That he left John Ryan in care of it. That at about 4 o'clock Ryan came to tell him that his house had been broke open and several articles taken away. When he got home he found a box broke open. That he missed the articles mentioned in the indictment. The box seemed to have been opened with a shovel that was in the room. The hatch of it was wrenched from the lid. That it was very well secured and nailed. That when he went out of the house to go to work, he left his box locked. That he had been at it, a few minutes before to take some flour out. That he had not seen the prisoner there that day and has not spoken to her for five or six months. That he is alleged to leave his house five days out of the seven, to go to the bake house. That Saturdays is always one of those days on which he is alleged to be absent. That he does not know that the prisoner has any knowledge of his absence. That he does not pass by her hut going to the bake house.

            The following articles deposed to by this witness

            [153] One silk waistcoat, three shirts, one cambrick handkerchief, one cheque shirt, one linen waistcoat, one old shirt.

            Question: What time was Ryan to stay in your house?

            Answer: No particular time was fixed. He was told when he went out to lock the door.

            Mary Marshall, being sworn, deposes that she lives in the house with the last witness. There she keeps her property in the same box with Sidaway. That last Saturday the 14th instant she lost one bedgown, one apron, two capes, a piece of tarp, one pair of pockets and one piece of linen cloth. That she was certain these article were in the hut on Saturday last, for in the morning some dust having [risen], she had taken them to clean them and put them in again. That she knows the prisoner very well but she has not seen her for some months in her house. She never came there but to casually light a pipe as she passed by. She left her house about 10 o'clock on Saturday and went to the bakers house. That she did not return until told by John Ryan that her house was broke open and several things stole. That the window was secured when she went out. It is a sliding shutter made hard by a wooden peg at the bottom. That the window was open when she came home. The house is divided into two apartments. The box stands in the first of them which also has the window in it. The window is large enough for a person to get in it. A tub of water which stood under a stool under the window, was found thrown down. Any person might by the assistance of the stool, step into the window.

            The following articles produced and deposed [154] by this witness - one bedgown, one pair of pockets, one apron, one piece of [linen] and one piece of a cap. That Ryan has taken care of her house when she is about for several months for which purpose he has the bag that he leaves in an outhouse on the outside.

            John Ryan, being sworn, deposes that he lives with the two last witnesses who employ him to get wood and water for them and leave him frequently to take care of the house serving their home. That he was left in charge of the house last Saturday the 14th instant. That they left the house about then 8 o'clock in the forenoon of that day and returned again about one and immediately went out again to the bake house leaving him in charge of the house. That he staid in it until about 4 o'clock, when he went out to chop some wood. That he staid about a quarter of an hour. On his recollection he was ordered down to the hospital to see a man punished. That he locked the door and left the window shutters about half way down for the fowls to fly in at. That he secured it by a strong hitch at the bottom. That he took the key with him. That he was absent about a quarter of an hour. That a little before he went out, he brought a tub full of water and put it on a stool under the window. On his notion, he perceived before he got to the house that the door was open, and suspected that it was a robber. That he ran as fast as he could, and found the shutter door. The stick knocked away. The box had been open several articles lying on the ground. That the tub was overturned. The stool remained. The lock of the door was shoved back the ball of it gone into a staple. [155] He had not seen the prisoner at all that day. That the nearest house to Sidaway might be about 50 yards. That when he went to tell Sidaway of the robbery he locked the door. That it locked easily. That being told by Charles Fry that he had seen the prisoner near the garden hedge with something in her apron, he taxed her with the robbery. When she denied he then charged one of the watch with her. -

[The minutes then record the evidence of five further witnesses, some of whom told the court that they had seen the prisoner with a bundle of clothes and others of finding some clothes hidden at the Rocks. They said that the prisoner was drunk that afternoon.]          

[159] - The prisoner in her defence says that last Saturday about half past 2 o'clock in the afternoon Mary Allen and Mary Dirks went down with her facing of the Sirius, having promised to go on the Wednesday before. They staid there till past 5 o'clock. They drunk a considerable quantity of grog and as it is but seldom she drinks any, it very soon took effect upon her. There were three men with them from the Sirius. One of them, Burn and Mary Dirks went first. She (the prisoner) was unwilling to [testify] Mrs White's being in liquor. She left Mrs Allen and Coventry of the Sirius there. James Tinney came up to her and asked if she would take a cag [160] home for her as Mr Allen was afraid to take it past Mr White's. That she went at the back of the hospital with it. There was some grog in it, how much she cannot tell, but it ran out and made her apron stay wet. That as she went on, near M. Dawson's house, she met Elizabeth Drudge. She told her she was going down fairing the Sirius, to send some clear liquor on board on board to one of the seamen. She gave her a parcel which she desired her to keep for her until she came home. That she took the parcel not knowing what it contained, and was the same she gave to Marshall. That Marshall came in and asked her about the robbery. That she told him she knew nothing about it. That he told her if she had any part of it, if she would give it to him, he would lay it where it might be found, and nothing said about it. She then gave the parcel, which she suspected to be a part of it, to him.

            Ann Fowler alias E. Druge, being sworn and called by the prisoner.

Prisoner. Did not I meet you on Saturday last in the afternoon, as you were going to the Sirius ?

Answer. No you did not.

            Prisoner. Did you not give me a parcel that day to keep for you?

            Answer. No I did not. I never saw you.

            Mary Dix, called also by the prisoner, was sworn. Prisoner. Were not Mary Allen, myself and you drinking grog with some seamen of the Sirius, on Saturday afternoon?

            Answer. On Saturday afternoon I took some linen for [161] Burn down where he was boiling pitch. That while I was there the prisoner came with some hitches in her apron. And Tinney gave her a cap to take home for him. That she went away leaving me there. I cannot tell the time the prisoner staid. It might be about 10 minutes. That I did not notice whether she was sober or in liquor. Upon the oath I have taken, I did not drink any liquor in company with the prisoner or the seamen of the Sirius. That Mary Allen walked down to the same place, at a little distance behind me.

            James Tinney, seaman on his Majesty's Ship, Sirius, called by the prisoner, was duly sworn. Prisoner. Did not Mary Allen and the prisoner come together on Saturday afternoon, to where you was employed, boiling pitch?

            Answer. I cannot tell, being at wash under the shed.

            Prisoner. Did you not drink grog with Mary Allen, Mary Dix and the prisoner that afternoon?

            Answer. She did drink grog there.

            Prisoner. Did you not drink a small cap of grog out of it?

            Answer. He does not know he brought more on there.

            Prisoner. Did you pull a large cap out for the [rock]?

            Answer. No upon the oath he has taken.

            Prisoner. Did you not give me a cap to keep for?

            Answer. Yes, I gave her an empty cap, which I took from her as soon as I went up.

            Prisoner. Can you recollect the time that you gave me the cap?

            Answer: As near as I can remember, it might be betwixt 4 or 5 o'clock. [162] He went away soon after she got the cap. Does not know how long the prisoner was there. She had nothing in her apron when he gave her the cap, which might hold two gallons. That to his knowledge she was not in liquor. That as soon as he left wash, he went up to the prisoner's house. That he does not recollect that she was in liquor. That he went to work about half past two. That it was near three when he went to the pitch pod. About that time he saw the prisoner there together with Mary Allen and Mary Dix. He does not know what quantity of liquor was drunk. But is positive the prisoner was there between an hour and an hour and a half ago.

            James Coventry, seaman on board the Sirius, called by the prisoner was sworn.      Question. Did Mary come with the prisoner to where you were boiling pitch last Saturday?

            Answer. He saw a woman there, but who came with or together he does not know.

            Question. Was not James Tinney and Burn, sitting together when the prisoner came down?

Answer. He cannot be positive, if they were sitting together, but they were together when the women were there.

            Question continued. What time did the women go away?

            Answer. The pitch kettle went on about 4 o'clock. They had gone away before.

            Question. What liquor was drank there?

            Answer. Our grog was drank before the women came. He was there the whole time the women went. He saw the prisoner go away, but does not recollect who she went with. To the best of his knowledge, he thought the [163] prisoner was sober. He does not remember any grog being drunk while the women were there. He saw Tinney give the prisoner a cap, which he imagined was empty. That he did not expect the women there that day. That he had expected M. Allen before.

            Prisoner. Did you not desire me to come down with M. Allen, last Saturday?

            Answer. I do not recollect that I did. I did not desire M. Allen to come that day. I expected her two days before.

            Question. Was the pitch kettle sent away at 4 o'clock and were the women gone?

            Answer. I do not exactly recollect. I was sent away soon after 4 o'clock. I remained there some time after, and the women had been gone some time.

            Guilty ┬┐ death.

                                                                        David Collins

                                                                        Judge Advocate

            On receiving sentence, the prisoner declared that she was with child.

            A jury of 12 matrons were then inpannelled and sworn to try if the prisoner is quick with child.

            On their return into court, the foreman delivered in their verdict. That the prisoner at the bar is not with child.

                                                                                    David Collins, Judge Advocate.

Executed the 23rd November, David Collins, Judge Advocate.

Note

[1] This trial resulted in the first execution of a woman in Australia. When the prisoner claimed to be pregnant and thus that she could not be executed, the court ordered a trial by matrons. The jury of matrons was the most important function women performed in eighteenth century courts.

            Nagle presents two very different perspectives of the incident and hanging of Davis (at p.157). In his Account Collins wrote (at p. 70): "She was executed the Monday following acknowledging at that fatal moment which generally gives birth and utterance to truth, that she was about to suffer justly, and that an attempt which she made, when put on her defence, to criminate another person┬┐ as well as her plea of pregnancy, were advanced merely for the purpose of saving her life. She died generally reviled and unpitied by the people of her own description."

            In contrast, Jacob Nagle, a seaman of the Sirius, wrote (cited in Nagle at p. 157): "Some time after this, one of the wimen [Ann Davis] stole some wet clothes and was condemned and hung. She strove to bring a free man in guilty that belonged to our ship that was on duty on shore, it being proved by a number of witnesses that he was innocent and new nothing of it. Otherwise, she might have been saved, as the Governor left it to Captain Hunter, but he would not for give her, and when brought to gallos, leading her by two wimen, she was so much intocsicated in liquor that she could not stand without holding her up. It was dreadful to see heir going to aternity out of this world in such a senceless, shocking manner."

            Watkin Tench (who was in New South Wales from 1788 until 1791) recorded as follows: "To the honour of the female part of our community let it be recorded that only one woman has suffered capital punishment. On her condemnation she pleaded pregnancy, and a jury of venerable matrons was empanelled on the spot, to examine and pronounce her state, which the forewoman, a grave personage between sixty and seventy years old, did, by this short address to the court: 'Gentlemen! she is as much with child as I am.' Sentence was accordingly passed, and she was executed."

            See Collins, Account of the English Colony of N.S.W., vol.1, 70; Nagle, Collins, 155-157; Castles, Australian Legal History, 60-61; Woods, History of Criminal Law in N.S.W., 24; Tench, 1788 (Tim Flannery ed., 1996), 268.

Published by the Division of Law, Macquarie University