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

R v Cartwright [1833] NSWSupC 102

perjury - women defendants in crime - Port Macquarie - pillory

Supreme Court of New South Wales

Dowling J., 15 November 1833

Source: Sydney Herald, 21 November 1833[1 ]

Mary Cartwright alias Mary Burns, stood indicted for wilful and corrupt perjury, on the 11th day of November instant, in the Supreme Court of Sydney, on a trial of eleven convicts, for assaulting and wounding their Overseer, Thomas Milbourne, with intent to kill him, at Port Macquarie, on the 23d of August last; seven of whom have since received sentence of the law.  Mary Cartwright had been called by the prisoners as a witness on that trial.

George James Rogers, clerk of the Supreme Court, deposed to having been present on occasion of that trial, which took place before Judge Burton and a Jury of Civilians; he produced the Record, and read notes which he had at the time taken of Mary Cartwright's evidence.

His Honor. - Was she sworn on that occasion?

Witness. - Yes, in the usual way.

His Honor. - Did she kiss the book?  Because there are some person who might kiss their thumb, or touch the book with their lips, and foolishly or wickedly try to adjust in this way, the matter with their conscience.  But I wish to inform such persons, that they cannot by any wicked evasion abrogate the solemn oath they take in the presence of God and of this Court; and that all persons convicted of perjury would be visited with the severest penalties of the law.

Witness. - She took the oath in the usual way, and deposed as follows on that trial - ``I was going down to the camp to the house of a man named Curtis, on Friday, the day that Milbourne was beaten; I passed by where the men were at work; I saw the Overseer Milbourne strike McLaughlin (one of the prisoner in that trial) across the shoulder several times with a cutlass, which he had in his left hand, and the last blow knocked MacLaughlin down; the gang then all came up to protect to McLaughlin; I saw all that took place; Milbourne had a pistol which fell from his hand, and it was taken up and fired by some person; I waited and saw all this; I went to Mr. Curtis' house after this had taken place."  This was her own voluntary statement, and not the result of any questions put to her; some of the prisoners were defended by Counsel that day; Harrison was not; she appeared to state what she did deliberately; I believe she was cautioned, but not cross-examined on that day; I think not; it may not be all she said, as I could not write as fast as she spoke; what I have taken down was her statement; she used no qualification, all she stated was as from her own knowledge; the Judge on that trial had put one question to her, and she said she was present; she had spoken audibly so that the Jury heard her; she used no qualified expression; she was about ten minutes under examination; she spoke rather slowly; I believe I have omitted nothing material; this statement I took down on the spot, on the trial; she was called by Harrison, one of the prisoners on that trial, to state what she knew, and what she saw.

Thomas Milbourne, constable of an Iron-gang, at Port Macquarie, deposed that he was attacked there by eleven men of the gang, on the 23d of August last; that he had not a cutlass with him at all on that day; that he had a pistol in his left hand which was taken from him by force, when the men attacked him; that he did not strike McLaughlin with a cutlass, he could not, because he had not any cutlass then with him; that Mary Cartwright was not present at all, or he must have seen her; that no persons, male or female, was allowed to come there when the gang was at work; Wisall, my assistant constable was present when I was attacked, and knows all about what took place; if I had a cutlass he must have seen it; I had no such instrument; I know the young woman at the bar, she was not on the ground at all; there was no person in sight when I was first attacked; she belonged to the Factory at that time, which is in part of the Gaol; I saw her in the evening after I returned from the Magistrates, before my wounds were dressed, and she asked me what was the matter with me, as she had known nothing of the matter before, and expressed herself surprised at the occurrence; she appeared from her manner to be quite ignorant of the matter; she did not say a word about striking McLaughlan with a cutlass; she did not say she had been there; the pistol was taken from me by force, and fired off by one of the party who attacked me.  (The prisoner examined this witness at some length in a pert and bold manner, but she could not in the least shake his testimony.)

Robert Wisall, assistant overseer, who was present on the 23d of August, confirmed fully the deposition of former witness, and was positive that the prisoner Mary Cartwright, was not present at all on that occasion.  (This witness asked His Honor for protection, as he was sure his life would be in danger on his return.  His Honor replied, that it was not in his power to protect him, but if he would send a memorial to the Governor, it would, no doubt, meet with attention by His Excellency.)

Christopher Doyle, shop-keeper and dealer at Port Macquarie, deposed that he went to the assistance of the overseers on the 23d of August, when they gave an alarm, and that he saw nothing of the prisoner Mary Cartwright in the neighbourhood.

His Honor then summed up with great perspicuity, and the Jury after retiring a short time, returned and pronounced the prisoner Guilty.

On the Attorney General praying sentence of the Court, His Honor address the prisoner, and expressed his horror and regret that a young female could be guilty of such deliberate wickedness.  The sentence of the Court is, that you Mary Cartwright be confined in His Majesty's gaol of Sydney, for the space of one month; that you be placed in the pillory in the public market on Thursday next, from the hours of twelve to two o'clock, and again on Thursday the 12th day of December following, at the same place, and during the same hours of the day; and that you afterward be transported to a penal settlement for the term of seven years.[2 ]

[This system should have been pursued by the Judges of this Colony for years past.]



[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 91, State Records of New South Wales, 2/3274, p. 188.

See also R. v. Mary Ann Cummings, reported in Sydney Herald, 2 December 1833; Sydney Gazette, 28 November 1833 (found not guilty of perjury, after fight in a shop).

[2 ] On 21 November 1833, the prisoner stood in the pillory for two hours in the public market place.  This unusual spectacle attracted crowds of spectators.  See Australian, 22 November 1833, noting that it was opposed to such outmoded forms of punishment, and that most of the crowd sympathised with her.  Some respectable people there made a collection of money for her, apparently in the belief that she was innocent.  Women were not placed in a pillory in England, the newspaper thought.

See also Australian, 29 November 1833, claiming that several people were arrested for expressing sympathy for Cartwright; and see its issues of 6 and 16 December 1833.  The latter referred to the second time Cartwright was in the pillory, and to its use against three men.

Published by the Division of Law, Macquarie University