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

R. v. Bevan [1804] NSWKR 3; [1804] NSWSupC 3

rape - sexual assault on child

Court of Criminal Jurisdiction

Atkins J.A., 17 May 1804

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1801-1808, State Records N.S.W, 5/1149 [1]

[187] New South Wales

May 17th 1804

            Proceedings of the Court of Criminal Judicature Held by Virtue of a Precept under the Hand and Seal of His Excellency Philip Gidley King Governor and Commander in Chief in and over His Majesty's Territory of New South Wales and its Dependencies &c &c &c

            The Judge Advocate

            [Members:]

Major George Johnston

Captain A Kemp

Ensign Drapper

Captain Edward Abbott

Ensign William Minchin

Ensign Charles Crossley

            The Precept being read and Members Sworn

            James Bevan put to the Bar Vide Indictment No 1.

            Elizabeth Douglas an infant eight years of age being asked if she knew what was the consequence of telling a lie, said that God Almighty would not love her, but if she told the truth he would love her. Says that as she remembers being sent from her father's house with some barley to the house of John Boothe, that she recollects Warminster meeting of her (being desired to point him out, she fixed on the prisoner) putting his hand on her mouth and knocking her down, pulled down his trousers, got between her legs and hurt her very much. He then got off her and told her that if she mentioned what he had done [188] to her he would kill her the first time he met her out of the house. That she was in consequence afraid to leave the house.

            Mr Charles Throsby surgeon being sworn deposes that Elizabeth Douglas was bought to him for examination, he found her very much injured, that violence had been used, and that penetration had actually taken place. On asking some questions the child informed him that the man that had used her ill was in prison, he went there and on examining the prisoner he found him very ill with the venereal.

            Sarah Daily being sworn says that she lives with William Douglas father of the child. That she recollects the child being sent to the house of Jonathan Boothe with some barley. That the child on her return did not mention what had happened. That the child cried on being desired to go out of the house. That three days after she had been sent with the barley the deponent found out that the child had been violently used. On being asked by her father who had ill treated her, after some hesitation told him that the prisoner Warminster was the person that had done it. That the child said the prisoner threw her down, put his hand on her mouth, and used her in the manner as above stated.

            Thomas Patrice being sworn deposes that on the father questioning the child, she said that it was the prisoner at the bar and no other person that had used her so ill [189] and that it was on her return from the Boothe's, and further corroborates the story as told by the child.

            Alice Frido being sworn says that soon after the child's return from Boothe's the prisoner came in, that she heard the child tell her father, that it was the prisoner that had ill used her in the manner as stated by the other evidences.

            Edward Roberts being sworn says that the prisoner worked for him and that he has often heard him say that he would have connections with Elizabeth Douglas. That on the deponent saying that it was a shame to mention such a thing, for that he would be charged he then said if she was big enough he would have connections with her. That the prisoner told the deponent that the child had asked him to have connection with her.

            James Bevan being put on his defence calls

Joseph Smith who being sworn says that he sent the prisoner to Douglas' farm. That a child being with him and told him that he saw Warminster and Douglas' child together.

The prisoner denies the charge.

Guilty. Death.

Note

[1] Bevan was executed on 21 May 1804: K. Macnab, Database of Prisoners Sentenced to Death in New South Wales, 1788-1968, unpublished. See also Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, State Records N.S.W., 5/1145, p. 237; Sydney Gazette 20 May 1804.

Published by the Division of Law, Macquarie University