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

R. v. Wright [1789] NSWKR 4; [1789] NSWSupC 4

carnal knowledge of a minor - rape - sexual assault - evidence, by children

Court of Criminal Jurisdiction

Collins J.A., 10 September 1789

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, 1788 to 1794, State Records N.S.W., 5/1147A[1] 

[141] " The Precept being read and the court duly sworn, Henry Wright, of Sydney Cove in the County of Cumberland, private soldier, was indicted for that he not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil on the twenty third day of August, in the twenty ninth year of the reign of our Sovereign Lord George the Third, now King of Great Britain, France and Ireland, defender of the faith and with force of arms at a certain place near Long Cove in the County of Cumberland aforesaid in and upon one Elizabeth Chapman, spinster in the peace of God and our said Lord the King, then and there being, violently and feloniously did make an assault on her, the said Elizabeth Chapman then and there feloniously did ravish, and carnally know, against the form of the statute in that case made and provided, and against the peace of our said Lord the King his Crown and Dignity."

Elizabeth Chapman, being called was asked

Question. How old are you?

Answer. A little more than eight.

Question. Do you know that it is wrong to speak an untruth?

Answer. Yes.

Question. What will happen to you if you do?

Answer. Go to the Devil.

[142] Question. Where do you expect to go if you speak truth ?

            Answer. To heaven.

Question. Can you say your catechism ?

Answer. Yes.

Question. The Lord's Prayer?

            Answer. Yes. (She repeated it.)

Elizabeth Chapman was then duly sworn. She deposes that she knows the prisoner, that his name is Wright. That she saw him often Sunday. That she had breakfasted. That after dinner she was walking with Mrs Kennedy to Mrs Thomas'. That after they were going along to borrow a couple of saucers and cups, they were met by her little sister Jane who told her that Wright wanted her to come down for some flower. That she went to Wright's house. Mrs Kennedy giving her leave to go that her sister did not accompany her all the way. That she went back to the prisoner's house. That no one was in the house but Wright, the prisoner. That he asked her if she would have some flower. That she said yes. He then gave her some flower. Soon after she had been there the prisoner's wife, two messmates of the prisoners and Mary saw Wright come in. Then he asked her if she would go on a walk. Then she answered yes and went to Mrs Kennedy's for her hat. That then she followed the prisoner, who was going with Mary Ann Wright, towards the guard house. That then they walked on a little further than Cockle Bay in Long Cove. Mary Ann accompanied them all the way. When he came to Cockle Bay, the prisoner said ┬┐baby shall we play┬┐. That she said no and ran away [143] from him. That he came after her and overtook her. That then the prisoner sat down upon the ground and put her upon his lap. That she saw him unbutton his breaches. That at this time she was sitting on his lap. That he put her astraddle across him. That he took up the petticoat. That he then put his private part where she makes water. That he hurt her very much. That she told him to be quiet. That he had touched her with his finger before he touched her with his private part. That he put his finger also where she makes water. That he was still sitting on the ground. That Mary Ann was still sitting a little distance from them. That she was not standing on the ground, but resting on him. That she was endeavouring to get away. That he kept her still straddled across him. That she was in great pain all the time. She told him he hurt her. That he did not tell her he would use her ill, if she got away. That after he had done, she felt something was between her legs. That she did not know how it came there. That she had not made water herself. That he then wiped her with his shirt. That as they were walking home she told him that she would tell her mother, he said he did not care. That she walked on before him leaving Mary Ann with him. Mary Ann shortly after ran after her. They then walked on together. The prisoner picked some flowers which after they came home he gave her. That while in the woods, after he had hurt her, he [144] told her he would give her a doll, which he did that evening. That she then went to Mrs Kennedy's where she had tea. That she would have told Mrs Kennedy, but she was afraid she would have beaten her for going with him. That she did not feel sore or in pain either coming home or that night or the next morning. That the Friday after she found herself ill. She found herself sore. That she never told her mother for fear she would beat her. That the prisoner told her not to tell Nanny Ainsworth. She said she would. He said if she did, he would smack her backside. That when he gave her the doll he did not tell her not to mention what he had been doing, to any body. That she did not mention it to any person until the Sunday after when she told her mother.

Question. Can you tell how far he put his private part into her?

Answer. I do not know.

Question. Did he put them in at all?

            Answer. I believe so.

            Mary Kennedy, being sworn deposes that Elizabeth Chapman was coming to her house to drink a cup of tea on January 23 last, that about three or four in the afternoon she came. That not having cups and saucers enough, she went down to Mrs Thomas' to borrow some. She took the prosecutrix with her. That as they were going along they met her little sister, Jenny who said, she must come along soon to Mr Wright's [145] to get some flower. That she gave her leave to go. Telling her if she staid, she should go to tea with her. That having got the cups and saucers, she returned and soon after which Elizabeth Chapman came in for her hat saying she was going into the woods with Mary Ann Wright and the prisoner. That the child left her. That looking out she saw the prisoner with the prosecutrix and the other little girl passing the guard house. No other person was with them. That they appeared as if going to Cockle Bay. That Elizabeth Chapman returned to her house in about an hour and a half. That she had a wooden doll in her hand, that she said the prisoner had made for her, and something to wear he had given her. She gave her some tea. Soon after which she wanted honey. That also he came to her the next morning but she did not observe anything particular about the girl. Except that she frequently wanted to go out and make water.

Question to the prosecutrix. Did ever any other person play with you or use you or use you as the prisoner had done?

Answer. No.

James Bagley, Corporal of Marines, being sworn, deposes that he saw the prisoner on Sunday evening the 23rd of last Month. That he was then standing opposite the door of Serjeant Kennedy's hut, no one with him but Mary Ann Wright. That he saw no more of him. Does not recollect the exact time of the day.

[146] John Russel, private soldier, being sworn, deposes that on Sunday evening the 23rd instant, he saw the prisoner standing outside of Mary Kennedy's hedge, with a child in his hand but whose he does not know. That he did not see any more of him as he went into the guard house, where he was on duty.

Jane Chapman being sworn deposes that the prosecutrix is her daughter. That on Friday night the 28 instant, as her daughter was asleep in bed, it being her common practice to look at her children before she goes to bed, to keep them as free as she can from fleas, she perceived something white coming from her private parts, as she lay asleep. Then she wiped her. Nothing else happened that night. She did examine her very close meaning to take her time. That she went to bed, and the next night, she looked again and examined her linen which she found discoloured.

The linen and sheet produced, which appear, stained very much, and in some places, spots tinged with blood.

That she gave her permission to go and drink tea with Mrs Kennedy the Sunday evening. That she returned about six or seven. That she has never known her daughter tell her a lie in her life. That she has always brought them up in the fear of God. That he, the prisoner, never came to the [147] house after her daughter. That as asking her how her linen came out so distained, if anyone had been meddling with her, she said she had been a little farther than Cockle Bay, with the prisoner and Mary Ann Wright. That he sat down and took her across his lap, with one leg on each side of him. That he put his private parts to her, and hurt her very much. That she cried out. That he told her, if she did not be quiet, he would smash her [legs]. She said, she would not, he said he would kick her [on a bed]. She said, that after he had done, she felt something wet, which he wiped with her shirt. That she told him she would [acquaint him] when she came home. That he replied he did not care so long as he done what he wanted. That she saw a doll sometime after in the house. That on asking her why she had not told her sooner, she said she was afraid she would beat her, as she had forewarned her of going with the prisoner and had heard he had the character of doing such things with children. That had she known the prisoner Wright wanted the child she should not have let her go with him. That from the Sunday the injury happened to the Sunday following she did not know any uneasiness in the child.

            [148] Mr Thomas Arundell, Assistant Surgeon, being sworn, deposes that on the 31st of last Month, he was called to look at the prosecutrix, that he went down with Mr Balmain. That on examining the child, he found the private parts very much inflamed externally. That they observed a sore internally, from which there was discharge of thick matter. That there was also a very great inflammation within. That on a slip and a sheet, he saw some very large spots or stains some tinged with blood. That some violence and that very considerable had occasioned. That the tinge of blood might be re-examined by pressure against the parts that he cannot positively say it was occasioned by any venereal. That he does not think it possible any perfect penetration could be effected in such a child, but against penetration as would be made by a finger [processing] on small state. There the sore might be occasioned by a finger.

The prisoner in his defence says that he had walked one with his wife and Chapman towards the brick fields. That he returned without them. That he found Elizabeth Chapman at home. That his wife came home. That Mary Ann Wright asked him to watch and got some flowers. That Elizabeth Chapman asked to go with them. That passing by Kennedy's hut, she went in for her [149] hut. That he was not twenty yards from the guard house the whole time. That several people saw him. One a man or convict saw him the whole time.

Charles Brixey, Corporal of the Marines being sworn, deposes that he does not remember seeing the prosecutrix. That he was walking with him between the hours of three and five towards the brick kiln. That the prisoner left him. On his return to the prisoner's house, he found him at home and did not see Elizabeth Chapman there. That he saw Mary Ann Wright there. That after this the prisoner went out to watch, but he did not notice the time of his return.

Guilty - death. He was humbly recommended to the Governor for mercy.

                                                                                    David Collins, Judge Advocate.

Note

[1] Henry Wright was the first man convicted of rape in New South Wales, for the assault at Lane Cove of an eight year old girl called Elizabeth Chapman. The trial illustrates the lengths the Court of Criminal Jurisdiction often went to in applying the eighteenth century English laws of evidence. For example, the young victim was questioned about her religious beliefs; she had to know her catechism and recite the Lord's Prayer before being able to give evidence in the trial.

The proceedings also highlight the problematic nature of the power to pardon. Despite evidence suggesting a history of sexual assault on minors, and although Wright was convicted and sentenced to death, Governor Phillip granted him a pardon, on the condition that he be sent to Norfolk Island for the term of his natural life. Wright later attempted to rape a ten year old girl on Norfolk Island, within two years of his pardon. After four further years, Wright was granted a conditional pardon. Although writing that the offence was "heinous" in the Minutes of Proceedings, Collins explained the first pardon in his Account in the following manner: "This was an offence that did not seem to require an immediate example; the chastity of the female part of the settlement had never been so rigid, as to drive men to so desperate an act; and it was believed that beside the wretch in question there was not in the colony a man of any description who would have attempted it."

            See Collins, Account of the English Colony of N.S.W., vol. 1, 66 (see also footnote 7); Nagle, Collins, 152-154; Castles, Australian Legal History, 60; Woods, History of Criminal Law in N.S.W., 25-26

Published by the Division of Law, Macquarie University