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

R. v. Marshall [1795] NSWKR 1; [1795] NSWSupC 1

rape - assault - double jeopardy

Court of Criminal Jurisdiction

Collins J.A., 15 April 1795

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, April 1795 to December 1797, State Records N.S.W., 5/1147B [1]

[1] Joseph Marshall, John Anderson, Joseph Dunstill, John Hyams, Morgan Brian, and Richard Watson, labourers, were brought before the court, charged, for that they, not having the fear of God before their eyes, but being moved and ordered by the instigation of the Devil, on the seventeenth day of March, in the year of our Lord, one thousand seven hundred and ninety five [2] with force and arms, at Cottrell's Farm in the district of the Field of Mars in the County of Cumberland, in and upon one Mary Hartley, spinster, in the peace of God, and our Lord the King then and there being, violently and feloniously did make an assault, upon the said Mary Hartley, against the will of her the said Mary Hartley, 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 aforesaid Lord the King, his Crown and Dignity.

The prisoners on their arraignment pleaded not guilty.

Thomas Cottrell, settler at the Field of Mars being sworn, deposed, that Mary Hartley came to his house, about 8 o'clock on the morning of the seventeenth of March last, she was accompanied by two men. The woman came from the house of Canless a settler, for the purpose of procuring some liquor, which would be paid for by Canless, and told him at the same time, that he (Canless) was very ill and had made over half of his farm to her. That he refused to let them have any several times, and that they [3] then desired another man belonging to another farm be let have then some. At this time there were four people in his house besides himself and the woman. That he (Cottrell) consented to let them have a bottle of liquor, and it was drunk at the house. Another bottle was procured, and drunk. Other people then came to his house, one Ogden, Johnston, and the prisoner Anderson, wanting liquor, which he let them have, giving a bottle to Johnston and another to one Partridge, who had come also, another to Ogden and one to the prisoner Anderson. They had scarcely finished the last bottle, when the prisoner Anderson came into his bed room and tapped him on the shoulder, and said "Cottrell your business requires you elsewhere". At this time the woman, Mary Hartley, was laying on his bed secured with clothes in a state of intoxication; that she had partaken only of the first of the two bottles and had not drunk any of what had been procured by the prisoner Anderson and the others. He went from his bed room to his kitchen window, which looked towards his barn, imagining by what he saw some person might be breaking into his barn but saw [4] nothing amiss. That on turning round he saw the prisoner Anderson within his bed room shutting the door of it. That he went to the door, and tried to prop it open, but the prisoner bolted it. That on bursting open the door he found the prisoner between the woman's legs. That he desired him to leave the house, telling him he was surprised at his being guilty of such a thing. That he then went and requested some of the people to go to [Colthread], a settler, and tell him to come up. That no one went. That he heard the prisoner Anderson say he would not let them have any more liquor, they would not pay for what he had had, which the others agreed to. That he went out for a few minutes. On looking again at his bed room door, he saw four or five men at it. That he asked what they wanted. That not receiving an answer, he rushed into the room, and saw the prisoner Morgan Brian, who had come in the mean time, with his trousers down. At the same time the prisoner Anderson, was a second time between the woman's legs. That he desired them to leave the room. That they [5] did without making any reply. That they went in to the kitchen, where Anderson menaced him. That he told him he should bring him to justice. About this time there were 14 people at his house, who had come there for liquor. That some of them went away, dispersing about the grounds and house. That in about a quarter of an hour the prisoner Watson, returned and asked for another bottle of liquor, for five shillings what he Cottrell owed him, desiring him to observe that he was sober. He and three others then swore that if he would let them have the bottle, they would go away and no one would molest the woman. That he desired the person who had come to the house with the woman to take care of her, while he went to his barn to get the liquor. That as he was returning he was met by the man, who told him the prisoner Marshall had beaten and punched him down, and that they had taken the woman out of the house by force. That the woman was absent about an hour, at which time they all, except her, returned wanting more liquor. That on enquiring after her they [6] pointed to a place about 20 yards from the house. That on desiring she might be brought back, some one answered she should, and accordingly she was assisted back. That when she returned, they all got round her and he urged them not to molest her, which they promised. That at sunset, the woman wished to go away. The man who came with her, asked for some powder, which having considered, he opened his purse and went away with the woman. The others went off at the same time, but he did not observe exactly which way they went. That all the prisoners now standing to be tried, [where] at his house that day. That when Mary Hartley first came to his house, she had drunk as much as was at any time refined for a woman. That he had nobody about his house that could assist him. That he heard some of the people at his house talk of cracking whales and fishermen, words what he did not know the import of. That the woman was at this time laying on the bed. That he could not prevent what had happened. He was but one man, against a number. That the [7] prisoner Anderson, though very much intoxicated, yet appeared very active in his connection with the woman. The others were not so drunk but what they knew perfectly what they were about. When the woman returned, she came back crying and seemed much dissatisfied, but she was much sober and knew what she was about.

Question from Anderson to Cottrell.   Where was I in the evening when you came to cut the corn stalks?

Answer. You was laying in the [front] of my house. The woman was in the house at the time.

Question from Hyam   to Cottrell. Did you give Mary Hartley any thing to eat while at your house?

Answer. Yes, two eggs.

Question. Did the woman go out with you at any time?

Answer. Yes, once to the barn.

Question from Brien to Cottrell What was I doing when you saw me standing with my trousers down?

Answer. You appeared preparing to have connection with the woman.

Question. Did I at all ... you?

Answer. No, but when he came out of the barn he heard him say he knew her in Ireland to be an infamous whore.

Question from Watson. Did not the woman eat the eggs shells and all?

[8] Answer. No, it is an infamous falsehood.

Question. Did I not go to the barn with you when you went to fetch one bottle again?

Answer. No.

Mary Hartley, spinster being sworn, deposed that she believes she was 16 last St Patrick's Day (17th March). That she came from Canless' house to Cottrell's, accompanied by two men, one a servant to Canless (Price) and another. That when they got to Cottrell's, Canless' servant asked her to drink, which she refused, saying she had drunk a glass of spirits before she left Canless'. However she drank one glass. That she asked Cottrell for a little sugar, which he had not, but he gave her two eggs what she could eat. That after they had been there an hour, a number of people came in, amongst them the prisoners Anderson, Brian and some of the others. Marshall came in afterwards. That she heard Anderson say that he would have a grinding mill, to grind the corn fine. That having heard that expression before at Sydney, she understood by it, that a number would lay with one woman and use her as they liked. That she immediately told Cottrell her life was in his hands [9] and that she put herself into his protection. That at this time she was sitting in the common room on a box. That on this she went in and laid herself down on the bed. That she had been there about an hour, when Anderson came in and took her out of it by force. That before that time, no one had had any connection. That having drunk only three glasses of spirit she well knew what she was about. That upon the oath she has taken, Cottrell when he came in and found Anderson in the room did not find him between her legs. That Anderson did come in and with his trousers down. She pretended to be asleep, and on the oath she has taken he had no connection with her. That while Cottrell was gone to his barn to get some liquor, they came in and punched down Price, and carried her off, Anderson taking her out by the Head, and Dunstill. They took her out into the corn, Anderson first tying a handkerchief which she had on her neck, over her mouth and hands. That having taken her into the corn they laid her on her back. That the prisoners Brian and Dunstill held open [10] her legs, and two men not taken held her hands. That several at this time were about her. That another person not taken held his hand over her mouth. That Jack Anderson was the first who had connection with her. That on the oath she has taken Anderson put his machine into her private parts, and that he emitted in her. That the prisoner Dunstill was the next who emitted also in her. That Watson was the next. That one Johnston was the next. That all the prisoners, Marshall, Brian and Hyams had connection with her against her consent. That she was abused in this way by above 16 persons, each of them knowing her twice. That upon the oath she has taken, she never consented in any one instance to any of them. She was all this time about two ... lengths from the house. That the prisoner Brian proposed to keep her, saying at the same time, kill the whore at once and there will be no more to do with her. That he let her go soon. That a man from Cottrell's when they had left her, came and calling her bitch, bade her get up, [11] not to lay there, they ought to have killed her. That she crawled up to Cottrell's and got a glass of water. That she left Cottrell's with two men to see her safe to some hut, when she was followed by the prisoners Brian and Hyams. That Brian knocked her down, and had connection with her again. That her mouth and face was scratched all over. That she went to the house of Isaac Archer where she related what had happened to her, and the next day, she went up to Parramatta. That she passed Mr Arndell's house, who on his hearing her story, ordered her to the hospital, and that meeting Bassington, the constable, she complained to him of what had happened. That she was unable to move out of the bed at the hospital for a fortnight without assistance. That she described the people who had abused her to Barrington, and the prisoners were taken up.

Question from Anderson to M. Hartley. Did the other prisoners come in with me to Cottrell's house?

Answer. Yes, a great number came in after you.

[12] John Price, labourer, being sworn deposed that on Wednesday, St Patrick's Day last, he was sent by the settler he lives with (Canless) with the woman, Mary Hartley, to Randall's hut. That on their way, they stopped at Cottrell's house. That he and another man had a pint of spirit each. That they had another bottle each afterwards. That Mary Hartley did but just taste the spirits. That being sick, having sat up with a sick person all the night, Cottrell persuaded her to lay down upon his bed, and told her this witness, he might go away, he would take care of the woman. That he stopping to drink out his liquor, a great number of the persons came in and Cottrell wanting to go out, he desired this evidence, to go to his door and take care of it. That he went to the door accordingly. When the prisoner Anderson asked him to let him in, that he refused, and five or six more men came in, and one Johnston came up and punched him down, and dragged him out to the middle of the room, and the woman taken out. That being stunned by the [13] blows he did not see her carried out. That on recovering, he went out and told Cottrell what had happened, but he could not tell which way they had taken her. That he was afraid to go to seek for her. That he supposed it might be between 2 or between 3 and 4 o'clock, when the woman was taken out. That she returned in about half an hour with another man, that she came in crying, her face scratched a good deal and she said she had never been so ill used before. That she went into the house, and staid there two or three hours, until it was dark and then she said she would go home. That they went away together, when just as they had got round the house, nine or ten men rushed in upon them and took away the woman again, and told him to go back. That he went back to Archer's.

John Worcester, labourer being sworn deposed, that he lives with Jones a settler, at Kissing Point. That he saw Mary Hartley at Cottrell's farm where she was asking for liquor. That they had a pint [piece], he and the last witness. That she only drank a small quantity [14] of it with them. That the last evidence wished her to go away to Marshall 's but she refused and swore she would not go until she had had another bottle. That she appeared to be drunk when he met them, and of this second bottle she drank two or three good drams. That they got to the house about ten before ten, and by 11 they had drunk the two bottles. That four or five persons had a share of this liquor but the greater part was drunk by himself and the last witness. That the prisoner Anderson and another man came to Cottrell's about ten past ten, to grind tools. That the woman being drunk in liquor, Cottrell took charge then and she went in to his room. That she laid down to sleep, and waked again about four. That he directly enquired for the woman, and was told she was asleep in Cottrell's bed. That Cottrell just coming in, saw Anderson coming out of his room. He asked him what he had been about. Then he said, nothing at all. That Cottrell said, he would not have any evil doings there, and went into the barn and brought out another man. That there were a great number of people in the [15] house, and he heard them say they would have the woman out. That this was in Cottrell's hearing, who begged them not to take her out. That she was taken out by force. That hearing her cry out, he proposed to the prisoner Hyams to assist him in taking her away, but he told him what could he do among too many. That he proposed to the prisoner Dunstill to assist, but he would not have any thing. That he then went himself and near the waterside found her on the ground, a man laying on her. One had just left her. The man could not have connection with her. She was then let up and he assisted with six or seven more to bring her up. That he supposes she was out about 20 minutes. That she would not quit the house, but sat drinking with the people who had had connection with her.

Isaac Archer, settler, being sworn deposed that Mary Hartley came to his house in the morning of the 17th of last March, between the hours of eight and nine at which time she appeared to be in liquor. That she told him she had been very ill used by a number of men and requested to sleep at his house. [16] That the next morning when returning from his work, he inquired for the woman and was told by his wife she was in bed. That when she got up, she complained a good deal, and on the men coming in from work, she said they were some of those who had had connection with her, and every man she saw passing, she said the same of. He then took her to Parramatta. She said that 40 men had had connection with her twice over, and said the same at Parramatta. She appeared very much in liquor when she came to his house.

The prisoners Dunstill and Hyams and Watson are his servants, the two former he has known for two years, the latter not as long, but they are all quiet, civil and industrious people.

John Irving, assistant to the surgeon at Parramatta, being sworn deposed that when Mary Hartley was brought to the hospital, she appeared to have sustained so little injury, that he did not order any medication. Her face was slightly scratched, and she had a small bruise on one of her thighs. She had no other place to go to, therefore remained there about two weeks. She might remain about [17] three days ill and in bed, but certainly not a fortnight.

Question from Anderson to Archer. What did the woman say to you, as she was going into town?

Answer. I asked her if any one had used her when upon Cottrell's bed. She answered, no, or meddled with her while there.

The prisoners being put on their defence, John Anderson said that on the morning of the 17th of March he was at Cottrell's door, when Price, Worcester and the woman came in. That Price was very drunk and Mary Hartley much in liquor. That she had a gun upon her shoulder. That she twice pointed the gun at him. That he drank part of some liquor and was very drunk. That he laid himself down on Cottrell's bed, the woman was on it also. That finding himself sick, he went out and fell down and lay there till sunset.

Joseph Marshall said that hearing Anderson was at Cottrell's he went after him and coming to the door about 4 o'clock he found Anderson laying drunk at the door. That he saw [18] Price who knew him, having formerly worked with him, and Price asked him to take charge of the woman, what he offered, but she refused and said she would not go. He knows no more.

Richard Watson says he called at Cottrell's on the 17th for what he owed him. That while there he saw Mary Hartley and he saw her go out and come in again and heard her ask Marshall for some rum and water, but had nothing to say to her. That he had drunk a great deal and was in liquor.

John Dunstill says that he went to Cottrell's. That he saw Mary Hartley and Price and the others all drinking. That a great deal was drunk. That after some time she and Price went away. That he staid there till dark and then went home.

Morgan Brian says that he was at Cottrell's on the 17th calling there for eggs. Saw a great deal of drinking in which he had a share. That one of them, to stop his going, tore his trousers and he went into Cottrell's bed room to get them mended. He knows nothing of any thing further.

John Hyams, said that he called at Cottrell's on the 17th March, where he saw Mary Hartley sitting in a chair. That liquor was [19] drunk That Worster and Price were there, Price with a gun. That they were both very quarrelsome, fighting and wrestling. That he and Cottrell parted them. That when he came back, he saw Hartley sitting in a chair by the window. She asked for rum and water.

Not guilty.

To be detained and tried for an assault.

David Collins, Judge Advocate.

Note

[1] Judge Advocate Collins commented in his Account of the English Colony in N.S.W. at pp 346-347 that "the court was obliged to acquit the prisoners owing to glaring contradictions in the witnesses, no two of them, though several were examined agreeing in the same point". Given the inconsistencies in the evidence, the questionable character of the prosecutrix and doubts in relation to the surgeon's evidence the verdict to acquit in this case was arguably appropriate. Collins, however, had little doubt that the prisoners were guilty of the offence, which in turn led to an extraordinary sequence of post-trial events. Although all prisoners were acquitted they were held in custody after the trial and charged with committing the lesser offence of assault. Collins wrote "such a crime could not be passed with impunity".

All the prisoners were tried again with the new, but only marginally different, indictment stating (Nagle citing the indictment at p. 250) "they did beat, wound and evil intreat and then and there to her other enormous things did to the great damage of her the said Mary Hartley to the evil example of all others in the like kind offending". Three of the six members who sat on the bench for the first trial sat on the bench with Collins for the second trial. Without the aid of legal representation, the accused prisoners did not object to the makeup of the bench in the new trial. More importantly, Nagle at p. 250 identifies a serious flaw in the process: "... no objection was raised on behalf of the accused that they had previously been tried and acquitted of the offence for which they now stood in jeopardy. It was clearly the responsibility of a Judge Advocate to inform the court of this and the fact that it would represent a bar on the second charge. Apparently, it did not even occur to Collins, so intent was he on seeing that these men should not go unpunished."

            In the second trial, which is not reproduced here, inconsistencies in the evidence previously brought before the court were avoided and two of the witnesses called in the previous trial were not called. The contradictions of the first trial were therefore avoided. Three of the accused were convicted and sentenced to 500 lashes each (Brian, Marshall and Anderson), and the other three were convicted and sentenced to 300 lashes. Nagle suggests at p. 251 that Collins' handling of the two trials reveals "his total lack of any judicial balance" in the case. In attempting to assure the men received punishment for the good of the state, Collins not only can be accused of treating the prisoners unfairly, but also of rejecting basic principles in English criminal law. Notwithstanding the inconsistencies in the evidence, the court appears to have decided that in the public interest the accused should be convicted.

See Collins, Account, vol. 1, 346-347; Nagle, Collins, 248-252; R. v. Marshall and others (22 April 1795), Court of Criminal Jurisdiction, Minutes of Proceedings, April 1795 to December 1797, State Records N.S.W, 5/1147B, p. 29 (subsequent trial).

Published by the Division of Law, Macquarie University