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

R. v. Fitzgerald [1813] NSWKR 4; [1813] NSWSupC 4

cutting with intent to kill - assault

Court of Criminal Jurisdiction
Bent J.A., 16 March 1813
Source: Court of Criminal Jurisdiction Minutes, 1811-1813, State Records N.S.W, 5/1120 (case no. 329)[1]

[329] Catherine Fitzgerald in brought to the bar, charged upon statute 43 Geo. 3, c. 50 with malicious and unlawfully cutting one Elizabeth Henry, (a subject of his Majesty) on her cheek with a sharp instrument with intent to murder, disable or do grievous bodily injury to the said Elizabeth Henry at Sydney on the 7th day of March instant.

           The prisoner being arraigned, pleaded not guilty, on which plea issue is joined.

           Elizabeth Henry sworn says I am the wife of William Henry. He generally resides in Sydney. On Sunday week last, I was in Sydney gaol. I was there under sentence for an assault. The prisoner Catherine Fitzgerald was also confined in gaol on the same day, in consequence of having taken some things clandestinely from my house. I prosecuted her. On Sunday week last between 9 and 10 o'clock in the morning, my husband came down to see me at the gaol. I was let out to see him. I saw him in the front gaol yard inside the gate there. We sat down together on a log of wood. Catherine Fitzgerald was ordered out for the factory. The women were getting ready for the factory. As she passed me by I perceived a peach and knife in her hand. She was pealing a peach. She made a blow at me in the face. I cannot tell with the hand in which she held the knife or not. She hit me on the right cheek. My cheek was cut, I think by the knife. I cannot tell. It was a heavy blow and I know she meant to hit me with her fist in consequence of what she said after. "I have done what I thought not to have done. I did not intend it. But as it is done it cannot be helped." [330] She threw the knife down.

           The testimony given by the witness is so totally in contradiction to her examination before the magistrate that the court order her to be taken from the bar, and committed to his Majesty's gaol.

           Gilbert Baker sworn says I am a constable usually stationed upon duty in the gaol. I was in duty in the gaol on Sunday week last the 7th March. The prisoner, Catherine Fitzgerald, was then in confinement in the gaol. Elizabeth Henry was also confined in the gaol at the same time. On Sunday the 7th March about 10 o'clock in the morning, James Wimbow a constable came to me for three prisoners that were agoing to the factory. The prisoner at the bar was one. The prisoner at the bar was the first to come to the gaol gate. Elizabeth Henry was standing inside the gate. The prisoner at the bar was eating a peach on a bit of bread with a knife in her hand. She turns to Mrs Henry and says you bloody whore, or bloody bitch take that for an old grudge. She then struck Elizabeth Henry with her hand. I will not be certain whether or not with the hand which held the knife. I saw the blood come from her right cheek. I suppose it must be with the knife as the blood came. The knife produced is the knife the prisoner held in her hand at the time she struck the blow. I did not hear Elizabeth Henry make use of any provoking language to the prisoner before she struck the blow. I should have heard her if she had. I thought at the time the prisoner had struck her with the knife. I did not think she intended to strike her with the knife at first but when saw the blood come I thought that was her intention. Somebody was sent for Mr Wentworth. She bled a trifle. The cut was very small. It was a state. The expression she used was used at the instant of striking the blow.

           [331] The Judge Advocate reads from Bench of Magistrates' second book, the second of the convictions of the prisoner for the petty larceny on the prosecution of the said Elizabeth Henry, on the 4th day of March instant and the sentence of the magistrates thereupon.

           The prisoner in her defence states that she was influenced by sudden passion, and did not mean to cut the prosecutrix.

           The court for their own satisfaction, call Darcy Wentworth esq. who being sworn says I am principal surgeon of this colony. I was passing by the gaol door at the time this affair happened. Was called in and saw the wound immediately after it had been inflicted. It was still bleeding quite fresh when saw it. I have not the least doubt that the wound was inflicted by some sharp instrument. It was a superficial wound, two or three inches long but not deep.

           The prisoner declined asking this witness any questions.

           This witness withdrew.

           The prisoner says she has nothing further to say in her defence, nor any witness to call.

           The court having fully understood and maturely considered the premises doth adjudge that the said Catherine Fitzgerald is not guilty of the felony in manner and form as she hath been charged and do therefore discharge her of and from the same.


[1] This concerns an assault in a prison yard. The factory referred to here is the Female Factory, which was simultaneously a prison, a place of reception for female convicts, a refuge and a place of work.

See also Court of Criminal Jurisdiction, Precepts and Informations, 1788-1824, State Records N.S.W., 5/1144A, p. 195 (no. 24); Sydney Gazette, 20 March 1813; and on the Female Factory see A. Salt, These Outcast Women: the Parramatta Female Factory 1821-1848, Hale and Iremonger, Sydney, 1984.

Published by the Division of Law, Macquarie University