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

R v Jones (No 2) [1826] NSWSupC 54

rape - sexual assault on child

Supreme Court of New South Wales

Forbes C.J.,[1 ] 16 August 1826

Source: Australian, 19 August 1826


Benjamin Jones was indicted for having committed violence to the person of Elizabeth Cutter, a child of 9 years of age, on the 26th of May last.  From the evidence[2 ]adduced in support of the prosecution being insufficient to sustain the capital charge, the case was abandoned by the Attorney General, and the Court acquitted the prisoner.

On another motion being made he was detained to answer for the same offence under the title of a misdemeanour.[3 ]



[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.

[2 ] Evidence was given by the child, and by a "Medical Gentleman": Sydney Gazette, 19 August 1826.

[3 ] The Sydney Gazette, 19 August 1826, said that he was to take trial at the Quarter Sessions at Windsor for the assault.  This was a common outcome in cases of this kind.  The same happened on 8 February 1826, when William Cunningham was found not guilty of rape on the person of Harriet Smith, a six year old girl, but was then sent before the magistrates on a charge of assault: Sydney Gazette, 11 February 1826.  On 11 September 1826, Richard Day was charged before the magistrates with an assault on seven year old Sarah Biggs, "under circumstances which manifested a design on the part of the prisoner to commit a most serious outrage on the child, if she had not got away from him."  He was ordered to keep the peace for 12 months, in a competent recognizance: Sydney Gazette, 16 September 1826. 

Again, in R. v. Brown, Australian, 3 June 1831, a capital prosecution for a sexual assault on a six year old child led to acquittal.  Justice Dowling said that the applicable Act, 9 Geo. 4 c. 31, required less proof than had been necessary in the past, but it was essential to prove some personal injury.  The child had appeared in court "but was so intimidated by the array of the Court, and of such tender years, that nothing definitive could be collected from what she could be got to say."

Published by the Division of Law, Macquarie University