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

R v Martin [1830] NSWSupC 33

rape, penetration, sexual assault on child, capital punishment, children, evidence by

Supreme Court of New South Wales

Dowling J., 24 May 1830

Source: Australian, 25 May 1830[1 ]



Before Mr. Justice Dowling.

John Martin was indicted for a capital assault, on the person of Eliza Deering, a child not 8 years of age; and on the clearest evidence found guilty, immediately upon which, he was sentenced to Death; at the conclusion of the Judge's address, Martin, who has been well know about town, under the designation of ``Jack the Drummer," said with an affected air of simplicity, ``so I am to be hanged; am I?  Oh! Then I'll take care to visit Mrs. Ball the very night after, that I will."  He took up his drum sticks, and walked composedly out of the dock.  It was in the yard, at the back of Mrs. Ball's house, in George-street, that the wretch perpetrated this diabolical outrage.



Execution, 7 June 1830

Source: Australian, 11 June 1830[2 ]


EXECUTION. - Martin, nicknamed Jack the Drummer, whom we lately described as having been found guilty of a capital assault upon a child scarcely eight years of age, was hanged on Monday from off the drop in rear of the jail in George-street, with two others, Michael Toole,[3 ] for a burglary at Pitt Water, and Daniel Curwen, for shooting a constable through the back, on the Windsor-road.  Martin said if he had committed the base act alleged against him, he must have been drunk, for he remembered nothing of it.  The other two confessed their guilt.



[1 ] Justice Dowling recorded this case in his notebook (Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 307) with the following statement of the legal principle involved:  "Where the hymen of a child under ten years was ruptured by the penis of a man, with proof of emissio seminis, though no proof of penetration beyond the hymen.  Held that if the jury thought upon the evidence that there was the least degree of penetration, that would be sufficient to constitute the crime of rape."  His record of the case said that the child was seven years old, and that he allowed her to give evidence because she " said she knew her prayers and that she believed naughty people who told lies would go to hell."

[2 ] See also Sydney Gazette, 12 June 1830.

[3 ] See R. v. Toole, 1830.

Published by the Division of Law, Macquarie University