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

R. v. Daily [1805] NSWKR 8; [1804] NSWSupC 8

rape - sexual assault on child

Court of Criminal Jurisdiction

Atkins J.A., 1 October 1805

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1801 -1808, State Records N.S.W, 5/1149 - 241d

           [241d] James Daily placed at the Bar Vide Indictment No 2.

           Mary Cole the Infant on being asked if she knew the Consequence of telling a lie, says, that God Almighty will hate her but if she tells the truth he will love her says that your knows the Prisoner at the Bar (here she pointed him out) says, that she well recollects being with the Prisoner in an Indian Corn Field, that he laid her down, took her petticoat up got between her legs unbuttoned his trousers got on her and hurt her very much and after some little time got off her, desired her not to tell her mother, and he would give her a Pincushion a knife and a comb. That at the time he was upon her, he put his hand on her mouth to prevent her crying out. That on her being asked by her mother what ailed her [241e] she said that the Prisoner at the Bar had been doing naughty tricks to her, that the Prisoner was, at the time she went to get raspberries, cutting the Corn stalks down.

           Mary Cole the mother Sworn says that the only knowledge that can speak of respecting the prisoner proceeds from what her daughter told her, which in substance is, that the prisoner threw her down among the Corn, and that he there pulled her Petticoat up, unbuttoned his trousers got on top of her and that the Prisoner desired her not to tell her mother, for that he would give her pincushion a knife and a comb, that she carried the child to Mr Mason a medical man to have her examined.

           Questioned by Prisoner: Did not Major Jurpold's woman tell you that she caught your child and a black boy together?

           Answer: She never did.

           Mr Martin Mason Surgeon being Sworn deposes that the prisoner at the Bar was under his care from the 26th May to the 19th of July for the Venereal Disorder, that the prisoner has [241f] had medicines subsequent to the date as above-mentioned. That when he was again appointed to, he examined the prisoner and his disorder was the remains of his old one. Says, that he examined the child Mary Cole colouring under the the venereal disorder. That there was some peculiar appearance on the Prisoner that is not unusual in the common stages of that disorder, and, that those appearances were on the child. That he is certain the child must have had some improper connection with a man, but that penetration had not been effected.

           The prisoner being put on his defence calls Colonel Hurst who being Sworn

           Questioned by Prisoner: Have you not declared that the child Mary Cole had coloured under the distal order 10 months back

           Answer: No.

           Thd Upton Sworn says that the prisoner has lived with him for 10 months, that he is a sober hard-working man. That he (the Deponent) has five [241g] children, one of whom is about the age of Mary Cole, and that he never knew the prisoner before in an improper manner towards her.

           The Prisoner not Guilty of the first Indictment, but find him Guilty of the second Indictment, for the [?] And do sentence him to receive a hundred lashes on his back and posterior, at such time and in such places as His Excellency may direct, and the Jail Gang for 12 months on heavy Irons.

Richard Atkins Judge Advocate

Published by the Division of Law, Macquarie University