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

R v Cunningham [1833] NSWSupC 2

rape - drunk witness

Supreme Court of New South Wales

Dowling J., 7 February 1833

Source: Sydney Gazette, 9 February 1833[ 1]

Phillip Cunningham stood indicted for committing a rape on the person of Eliza Besford, at Lower Minto, on the 25th December last.  The prosecutrix, on being called to give evidence, was found to be in such a state of intoxication as to render her evidence inadmissible.  The prisoner was accordingly acquitted of the capital charge, but remanded to take his trial for the assault.

Phillip Cunningham was again indicted for committing an aggravated assault on the person of Emily Besford, at Lower Minto, on the 25th December last.

William Crisp, is constable at Lower Minto; remembered going along the Campbell-town Road on the day laid in the indictment, when within about quarter of a mile from the public house, bearing the sign of the Robin Hood, his attention was attracted by the cry of murder in the bush; the voice was that of a female; witness then proceeded to where the sound came from; it might be about one hundred yards from the turnpike gate; saw the prisoner in the act of rising from a female who was lying on the ground, she appeared to have been maltreated and scratched, as with thorns; she appeared to be very much intoxicated; witness asked prisoner how he could use a female in such a manner; he said, any female whom he caught on his master's premises he would serve the same way; prisoner he believes to be an assigned servant to Edward Moore, settler; does not know of any intimacy between the prisoner and prosecutrix; a person named Richard Carr was in company with witness at the time; on reaching the place woman exclaimed. ``Oh Crisp I'm very glad you are come, or he would have murdered me."

By the prisoner - Prosecutrix was much intoxicated, saw her in the company of her husband in the public house, some time previous; prisoner told witness he had been stooping down to ask her what ailed her, when she shrieked out; prisoner in looking for his master's cows, must cross the paddock where the prosecutrix was found.

Richard Carr is a constable at Campbelltown; was in company with the last witness, Crisp, on the day laid in the indictment; heard a cry of murder in the bush; found prisoner and prosecutrix in the state described by last witnesses; does not know her name positively, but believes she answers to the name of Emily Besford.

By the Prisoner - Prosecutrix told us to take the prisoner into custody; does not remember her asking who we were; saw prisoner buttoning up his small clothes; cannot say that he had ill-treated the prosecutrix in any manner; told us he had come after his master's cattle; the place might be 140 yards from the road; did not see any man running away; was a short distance behind Crisp; after taking prisoner, went to Robin Hood; believes the husband of prosecutrix was there, but did not see her.

The case for the prosecution closed here. 

In behalf of the prisoners, several witnesses were called, the object of whose testimony was to show that the prosecutrix was a depraved, worthless person, and was in a state of intoxication on the night in question.

The learned Jury summed up, and left the case to Jury as one of evidence, solely for their consideration.  If they believed the witnesses on the part of the crown, that the conduct of the prisoner had been such as had been described by them, and that he had assaulted the prosecutrix, intending to violate her person without her consent, then the defence set up by him could not avail him in law.  The jury, after retiring for a few moments, returned a verdict of guilty.  The learned Judge, after a most impressive admonition to the prisoner on the enormity and inhumanity of his offence, in taking advantage of the imbecile and helpless state of the prosecutrix, and his total disregard of that respect for the female sex which should be the characteristic of every man, sentenced the prisoner to two years' hard labour, in irons, on the public roads.



[1 ] See also Sydney Herald, 11 February 1833.

Published by the Division of Law, Macquarie University