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

R. v. Flanaghan [1827] NSWSupC 49

rape, Richmond

Supreme Court of New South Wales

Forbes C.J., 14 August 1827

Source: Monitor, 16 August 1827

Jeremiah alias Timothy Flanaghan, of Richmond, free labourer, stood charged with committing a rape on Mary Ann Silk, on the 2nd of July last.[1 ]

The Attorney General (Mr. Baxter) having presented the information, called Mary Ann Silk, who stated, that she is a married woman, and on the day laid in the indictment, lived with her husband on a small farm at Richmond, as did also the prisoner.  On the 2nd of July he (the prisoner) left the house in company with her husband, whom she did not expect to return.  In the course of the evening the former returned, making some trifling excuse for doing so.  At her usual hour she retired to rest in her own apartment, fastening her chamber door with a leathern strap and button.  The prisoner slept in an adjoining room; about 11 or 12 o'clock he forced open her door, and coming to her bed side, he threatened if she resisted to take her life.  She did so for half-an-hour, when he took from the foot of the bed a cloak, and muffled her head in it.  She did not communicate what had passed on the following day to any of her female friends.  Her husband returned at night; she told him he was angry with the prisoner, but went quietly to work in a field with him.  Accounts for his inactivity in seeking satisfaction, being a smaller man, and consequently deterred by fear.  On the third day after, however, she went to Mr. Bell, the Police Magistrate, and communicated the circumstance, whereupon a warrant was issued and the prisoner apprehended.  She exhibited to Mr. Bell a mark of violence.  The prisoner cross-examined this witness with shrewdness and ingenuity.  It did not appear, however, that even though she had called for assistance, she would have been heard.  The woman (who appeared to be about 25 years of age) gave her evidence with consistency and promptitude, but with a total absence of delicacy.  John James, a constable, was called by the prisoner, and deposed, that on apprehending him, he immediately informed him of some stolen property being concealed in the prosecutrix's house, and found it; it had been stolen six months previously.  the prosecutrix he had known for a number of years, she was a very bad character - bush-rangers had been harboured in her house - her husband is now suffering imprisonment for having stolen property found on him; he would not believe her on her oath.  The prisoner put in a written defence, wherein he stated, that he had been on terms of criminal intimacy with the prosecutrix for a long time past; that on obtaining his freedom he entered into partnership with her husband in a small way of farming, and the latter being very poor, he stocked the ground with seed, and improved it with his labour; that now the fruits of his labour were forthcoming, this plot had been made to deprive him of them, that Silk and his wife might obtain them wholly.

The Chief Justice recapitulated the evidence, and minutely pointed out the peculiarities of the law in such cases as the present, observing , that if the testimony of the prosecutrix was considered worthy of credit, the case had been proved in all its points - her credebility, therefore, it was the province of the Jury to decide on.  After retiring a few minutes a verdict of Not Guilty was returned.

Notes

[1 ] See also Sydney Gazette, 15 August 1827; Australian, 17 August 1827.

Published by the Division of Law, Macquarie University