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

R. v. Pawson [1795] NSWKR 2; [1795] NSWSupC 2

arson

Court of Criminal Jurisdiction

Collins J.A., 20 July 1795

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, 1796 to 1797 Apr 1795 - Dec 1797, State Records N.S.W., 5/1147B [1]

[41] Mary, wife of William Pawson, settler, was brought before the court, charged for that she, not having the fear of God before her eyes, but being moved and seduced by the instigation of the Devil, after the ninth day of July, in the year of our Lord one thousand seven hundred and ninety five, to wit, on the tenth day of July in the year of our Lord one thousand, seven hundred and ninety five, about the hour of 12, in the light of the same day, with force and arms, at Mulgrave Place, in the County of Cumberland, a certain house of one and Joseph Butler, there situate, feloniously, voluntarily and maliciously did set fire to, of the same house then there and by such firing as aforesaid, feloniously, voluntarily and maliciously did burn and consume, against the form of the statute in that case, made and provided, and against the peace of our Lord the King, his Crown and Dignity.

            The prisoner on her arraignment, pleaded not guilty.

            Alexander Seaton, being sworn deposed that being at Butler 's house, the prisoner and the wife of Butler were quarrelling about some chairs. That Butler 's wife, Mary Manderville threw a corn stack at the prisoner, which was returned, and the prisoner told her she would be revenged of her before the month had passed.

            [42] Mary Manderville being sworn deposed, that the prisoner called at her house, for two chairs. That they quarrelled and much abuse passed on on both sides. That the prisoner, clapping her hands then said, "you bloody, bloody, whore before that day [comes] I will give you a warm [strike]". That she was the last person up the house the night the house was burnt. That she carefully put out her own fire and about one in the morning she watched and found her house in flames. It was on fire at the top. A [ malet ] the next morning was found a short distance from the house, composed of pitch and tar. That pitch and tar were found in the prisoner's house. That 350 bushels of corn were burnt. That they received no assistance from the prisoner's house or people. That a man belonging to Butler went down to the prisoner's house, calling for help, and called a considerable time, but no one came. That others came to the house further distance than prisoner.

            [43] The prisoner denied having set fire to the house. Said she was asleep at the time; denies making use of the expression stated by Manderville as a threat.

            William Clark, soldier in the New South Wales Corps being sworn deposed, that he is quartered in the house belonging to Pawson. That he was asked in the house at the time Butler 's was burnt down. That three other men were there and the prisoner and her husband and that they had all been asleep for nine hours before the accident. That it was not possible for anyone to have gone over to Pawson's house without his knowledge. That he knows Pawson had some pitch and tar in his house, hanging up but he never saw it used.

Note

[1] In this case there was no direct evidence against Mary Pawson despite her animosity towards Mrs Butler, the wife of the owner of the property burnt. Collins suggested that the evidence against the accused was strong and that there was "grave suspicion" that she had committed the crime. However, Nagle comments at p. 256 "that suspicion was not substituted for proof beyond reasonable doubt" in terms of the court coming to its eventual acquittal and despite Collins drafting the original charge. In this instance, Collins at p. 354 in his Account appears to have taken a more cautious and judicial approach: "on the trial there was strong evidence of malice in the prisoner against the wife of the owner of the house; but not any that led directly to convict her of having set the house on fire. She was therefore acquitted; but the adjoining settlers disliking such a character in their neighbourhood, the husband who had nothing against him but this wife, sold a very good farm which he possessed on a creek of the river and withdrew to another situation, remote and less advantageous."

            See Nagle, Collins, 254-256; Castles, Australian Legal History, 61; Collins, Account of the English Colony in N.S.W., vol. 1, 354.

            Not guilty.

Published by the Division of Law, Macquarie University