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

R v Foley (1831) NSW Sel Cas (Dowling) 303; [1831] NSWSupC 75

rape - contempt of court, by woman alleging rape - contempt of court, refusal to give evidence

Supreme Court of New South Wales

Dowling J., 4 November 1831

Source: Sydney Herald, 7 November 1831[1 ]

Friday, November 4. - Before Judge Dowling, and the usual Commission.

Timothy Foley was indicted for violating the person of Sarah Holding, at Maitland, on 15th August.  On the prosecutrix being placed in the box, she refused to be sworn, and declared that she would have nothing more to do with it, having forgiven the prisoner for what he had done to her.  A witness was then placed in the box, who swore that prosecutrix was sworn at Maitland, her deposition taken and read over to her, on which prisoner was committed.  The learned Judge then put it to her distinctly, to say whether she would be sworn, and state the circumstances of the case, or be committed to gaol; she preferred the latter, and was accordingly committed for the contempt.  The prisoner was found not guilty, and discharged.


Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 89] [Where a prisoner had been committed for trial on the oath of a female charging him with rape & when she came into Court refused to be sworn the Court committed her for a contempt.]

Friday 4th November 1831

Rex v Foley

Coram Dowling J

Indicted for ravishing on 15th August 1831 at Maitland Sarah Holdern.


Sarah Holdern refused to be sworn.

William Ledgerwood

I am a waterman living on the Farm of Mr Francis Mitchell.  I was examined on the 18 August before Captain Anley at Wallis Plains.  I saw Sarah Holdern examined on oath the deposition was read over to her and signed it [p. 90]  I believe the prisoner was under examination before.  Her statement did not appear to come from her voluntarily.  She appeared reluctant.  She came down with another man off the Farm, and I overtook them.  He was a new hand not a constable.  She charged him with having his will of her with violence.  She came in the vessel.  She was in Mr Cobbs service.  He was in Mr Francis Mitchells service.  He was at the Bank of the River three days before the man was committed nearly two months.

Let her stand committed for her contempt in refusing to be sworn she having been warned twice or three times.

Not Guilty


[1 ] See also Sydney Gazette, 8 November 1831.

Published by the Division of Law, Macquarie University