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

R. v. Kennedy [1828] NSWSupC 30

rape, sexual assault on child, Parramatta

Supreme Court of New South Wales

Trial, 7 May 1828

Source: Australian, 9 May 1828

Thomas Kennedy, an aged man, was indicted for an assault upon a female child, not more than six years of age, a child named Ellen McPeak, the daughter of a settler living at Parramatta, with the intent to commit a rape.[1 ]  The prisoner, on being asked in the usual way to hold up his hand in pleading to the indictment, began to mutter some words unintelligible to the Court, in his native tongue  in Irish; but making no answer more intelligible to the repeated questions put to him by the Clerk, an intimation was given to the Court by the Crown Officer that the prisoner acted thus through wilfulness, and that by calling a witness he would be enabled to prove his assertion.  The Court in consequence directed such a witness to be called as would establish the fact.

John McPeak, father to the child in question, was then put into the witness box and sworn.  In reply to some questions put both by the Crown Officer and the Court, he said that he had frequently conversed with the prisoner, who on all such occasions spoke the English language in a way sufficiently intelligible to most persons  and the witness also felt confident that the prisoner perfectly well understands the meaning of any plain question put to him.

The Court upon this ordered a plea of not guilty to be recorded, and for the trial to be proceeded with.

We will not so far outrage decency as to enter into details of the conduct sworn to have been exercised by this hoary Satyr.  He was finally found guilty, and remanded for sentence.


[1 ] See also Sydney Gazette, 9 May 1828.

Rape was a capital offence and difficult to prove.  Defendants were often convicted of assault instead.  In R. v. Cutter, 3 March 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 7, George Cutter was charged with assault with intent to commit a rape on a 13 year old girl, but was only convicted of common assault.  In his affidavit in support of mitigation of sentence, he denied his guilt, but the Court held that he could not do so after the verdict.   He was released on bail between the verdict and the sentencing: see Sydney Gazette, 27 February 1828.  (See, similarly, R. v. CurtainSydney Herald, 5 March 1832.)

On 3 May 1828, James Deegan was convicted of assault with intent to commit rape on a girl under four years of age.  He was sentenced to work in irons on the public roads for two years: see Sydney Gazette, 7 May 1828.  See also Australian, 16 May 1828 (Henry Breeden sentenced to two years in iron-gang for assault with intent to commit rape on six year old girl).

Some were executed for rape of children however, such as Thomas Ashton: Sydney Gazette, 17 November, 8 December 1829.  See also R. v. SmithSydney Gazette, 12 January 1830, where the defendant was sentenced to death for the rape of his seven year old daughter.

Published by the Division of Law, Macquarie University