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

R. v. Gallagher and Quigley [1834] NSWSupC 4

rape - sentencing discretion

Supreme Court of New South Wales

Forbes C.J., 6 January 1833

Source: Sydney Gazette, 7 January 1834[1 ]

Patrick Gallagher was put to the bar, charged with a rape on the person of Ellen Walsh, at Sydney, on the 1st December last, to which he pleaded not guilty.

The Jury being sworn, the Attorney General called Ellen Walsh; I am an assigned servant to Captain Perry, who lives at Darlinghurst; on the 1st December last, I came into town, to go to evening prayers; it was on a Sunday; I was accompanied by a fellow servant, a female, named Ann, I do not know her other name; after service we proceeded home by a path behind the Catholic Chapel; some men followed us, saying we were Captain Perry's servants; we asked them what they wanted to know; they passed on; when we arrived at the bottom of the hill, the men were again there; my fellow servant was three times knoced [sic] down; the prisoner followed me; it was about half-past seven o'clock; seeing the follow me I returned to where I had left my fellow servant; the prisoner caught hold of me, and after I had struggled with him some time he got me down; he then called out to some one saying, ``Jack, come and hold her b--y legs"; a man then came up, and assisted the prisoner in holding me down; I scratched his face, and screamed out; the prisoner got the upper hand of me; I fainted away; when I came to myself, the prisoner exclaimed, ``there, you b--y Irish b--h, there is a blaze in your forehead now": (the witness described how the prisoner completed the offence); when he went away, he asked if I knew him; I said I did not then, but perhaps I might know him next day; he said he had a good mind not to leave it in my power to know him; when I got up, I was scarcely able to stand, I called out to my fellow servant; she was looking for her shawl, which the men had taken away; I went home, and told my mistress what had happened; she told my master; in the course of the week, my master asked me if I could describe his height, colour of his hair, &c.; the first time I saw the prisoner afterwards, was at Mr. McLeay's, where I went with my master; I went to identify the prisoner; nobody pointed him out to me; I immediately identified him; the prisoner was at work picking up stones; I told him he was the man that had ill-used me; he said he, was not; I swear positively to the prisoner being the man who violated my person; I picked out another man at Mr. Hallen's, for the person whom the prisoner called Jack, and who assisted to keep me down; but I could not say positively he was the man.

By the Jury - It was light when we met the men; but not so when we got home; the prisoner was dressed in a white shirt and trowsers, grey waistcoat, and black hat; he had on no coat or jacket.

(At the suggestion of the Jury, who expressed themselves dissatisfied at the nature of the evidence respecting the completion of the offence, the witness again stated the circumstances attending its accomplishment.)

The prisoner declined cross-examining the evidence.

By the Jury - When I saw the prisoner at Mr. McLeay's, the scratches I had made on his face were observable; I knew them again, and showed them to my master.

Thomas Jones being sworn, said, I am a constable in the Sydney Police; I live on the Surry Hills; I took the prisoner into custody on Saturday the 7th December, at Mr. McLeay's residence at Elizabeth Bay; he had a check shirt on him, a Scotch cap, a pair of white duck trowsers, a dark coloured waistcoat and a straw hat; his beard was of about a week's growth; I had him shaved; after he was shaved, I saw some marks on his face; I took him to Captain Perry's; a female servant there identified him as the man who had assaulted her; before she saw him, she told me of the scratches on his face; I asked the prisoner how his face got scratched, and he told me it was in consequence of a fall; on the previous Monday, the girl had picked out four or five men from Mr. Hallen's, who she said were with the prisoner when she first met him; but she stated they were not with him when he committed the offence; I had received a note from the chief constable to apprehend the prisoner; the girl might have seen the prisoner at Mr. McLeay's before I took him to Captain Perry's.

By the Jury - I enquired of the Superintendent at Mr. McLeay's for a white shirt, and black hat belonging to the prisoner, but they were not forthcoming.

The prisoner declined to cross-examine the witness.

Samuel Aug. Perry, Esq., being sworn, said - I reside at Darlinghurst; I had an assigned servant on 1st December last, named Ellen Walsh; I remember on that Sunday afternoon, she, with a fellow servant obtained permission to go to religious worship; they not returning in proper time, I proceeded towards the town, and met Ellen Walsh, about 200 yards from my residence; she seemed nearly frantic; I sent her home; she told her mistress that evening, that she had been violated; she gave a description of the man; she also said that she had scratched the man's face and bit his chin; she said she had made all the resistance in her power; she said he was dressed in a white shirt and trowsers, dark waistcoat, black hat, and heavily nailed shoes; in consequence of my own idea, I took Ellen Walsh to Mr. McLeay's, without giving her any previous notice; it was early in the morning; on walking though Mr. McLeay's garden, she saw three men working there; she fixed her eye on the centre man, and appeared immediately struck with him; she said, if that man was not so old, I should think he was the man who violated me, but he was younger and smoother faced; in the evening, the same man was brought to my premises, and Ellen Walsh on again seeing him, immediately exclaimed that is the man; I saw a mark on his chin, which appeared like a bite; he said he had had this a long time; there were two other marks, apparently of recent make on his face; he said one was made by a fall, and the other, by his razor when shaving; they seemed like scratches.

The prisoner declined cross-examining the witness.

Robert Henderson being sworn, said - I superintend Mr. McLeay's Estate at Elizabeth Bay; the prisoner is an assigned servant of Mr. McLeay's; on Sunday the 1st December, the prisoner went into town; he did not return until Monday morning, between six and seven o'clock; I saw him at that time; his face was scratched and broken in several places; I know the prisoner had a white shirt, but I do not know whether he wore it on that occasion; he had also a black hat; I afterwards searched for the shirt but could not find it; the prisoner, and the rest of the men on the ground said it had been tore up for above a month; I do not know whether this is true or false; I found the hat; the prisoner wore it on his return on Monday morning.

The prisoner did not cross-examine the witness.

Charles Appleby being sworn said, I live at Dr. Bowman's gate behind the Catholic Chapel; I am a free man; I remember a Sunday evening in the beginning of December; I was returning home; I saw two women, and seven or eight men near a back gate; I made way to let them pass; after I went home I heard female screams; my wife heard them also; I went out and heard another scream; I did not perceive from whence it came; it seemed to be distant; I did not go towards it; many persons pass by that way.

The prisoner did not cross-examine the witness.

Mary Ann-Arnold being sworn said, I am an assigned servant to Captain Perry at Darlinghurst; on Sunday afternoon the 1st December, I accompanied Ellen Walsh to chapel; we left it between 7 and 8 o'clock; we went home by the way of Dr. Bowman's; we met several men; I was knocked down by some one; I heard Ellen Walsh screaming, but I could not go to her assistance; I screamed out also; I do not know any of the men; I asked Ellen Walsh why she did not come to my assistance; she said she could not take care of herself; she did not tell me what had happened; we were not apart many minutes; I was looking for my shawl which I had lost; it was brought home on Monday morning; Ellen Walsh did not tell me that night what had happened to her; my mistress told me of it next day; Ellen Walsh then told me of it herself; I asked her why she did not tell me of it when we were walking home together; she said she did not like to mention it to me, she thought it would be best to tell it to her mistress herself.

By the Jury - I was about 8 o'clock when we got home; I do not think I went away from Ellen Walsh more than five minutes; I was insensible myself for a short time in consequence of a blow I received; we were both perfectly sober; we so[?] met Captain Perry; I had not much time to speak to Ellen Walsh before we met him I did not see the prisoner at the bar; have only been a short time in service of Captain Perry's, and did not know much of Ellen Walsh.

The prisoner declined to cross-examine the witness.

At the request of one of the Jury, Capt. Perry was called, and spoke highly of the character of the prosecutrix during the time she had been in his service, which was more than six months.

This was the case for the prosecution.

For the defence the prisoner called upon

George Massey, who, being sworn, said, I am an assigned servant of Mr. McLeay's, I was in company with the prisoner on a Sunday morning, from 9 to 10 o'clock, about five weeks ago; I did not see the prisoner again until the following morning, at 7 o'clock; I do not know any thing about the prisoner in the intermediate time; the prisoner had on when with me a coloured shirt, light waistcoat, black hat, and white duck trowsers; when I saw the prisoner at breakfast, at 8 o'clock on Monday morning, he had on the same dress as when I parted with him on Sunday.

By the Jury - I do not recollect seeing any marks on the prisoners face on the Monday morning; I did not take particular notice; I am positive that when I parted with the prisoner on Sunday morning, he had on a dark striped shirt, such a one as he now wears.

The prisoner had subpoenaed two females now in the Parramatta Factory on his behalf.  Mr. Moore, the Crown Solicitor stated, that a subpoena had been forwarded to them on the 28th December, but they were not now in attendance.

The prisoner declined making any defence.

The Chief Justice proceeded to sum up the evidence.  His Honor drew the attention of the Jury to the law as now standing with respect to the proof of the offence, of which the prisoner was charged.  Formerly it was necessary to establish in evidence an actual emission; whereas by a recent Act of Parliament, passed in the last year of the reign of his late Majesty King George the Fourth, the fact of penetration only, was deemed a sufficient proof of the completion of the offence.

His Honor made these observations, in consequence of the questions which had just been put to the witness, Ellen Walsh, by some of the Jury, and which as the law now stood, was not necessary on the present information.  The learned Judge then commented upon the evidence at length, leaving it to the Jury to decide, as regarded the guilt, or innocence on the prisoner at the bar.

The Jury retired for a few minutes, and pronounced the prisoner guilty,

The prisoner was remanded.


Forbes C.J., 13 January 1834

Source: Sydney Herald, 16 January 1834[2 ]


Monday. - His Honor the Chief Justice, having taken his seat, the following prisoners convicted during the past week, were brought up for sentence.

Patrick Gallogher, convicted of a rape on the person of Ellen Walsh, being put to the bar,  His Honor addressed him in an impressive manner to the following effect - Patrick Gallogher, you have been brought before the Court in order to receive that sentence which the law has assigned to your offence.  You have been convicted by a Jury of your countrymen, of one of the basest offences which degrade the character of man.  I do not feel it necessary, indeed it could answer no useful purpose, to advert to the particulars of your offence; the Jury, after the most patient attention, returned their opinion that you were Guilty.  It has come to the knowledge of this Court, although it was not taken into consideration at the time of your trial, that the scene of your outrage[ 3] is a notorious resort of persons disposed like yourself, so much so, that it has become unsafe for decent females to walk in its neighbourhood without protection, even in day time; and it therefore becomes quite time by a visitation of the penalties of the law, in order that by your example others may be deterred from the commission of a similar offence, to put a stop to the vile practice which has long prevailed, even at the short distance of one mile from the abodes of men.  I find with deep regret, that you complain of the absence of witnesses, who could have served you for your defence at the time of your trial; I can only say that I would have been most happy to go into their evidence in your behalf, in order that you might have had the full benefit of it, because I felt that your case was one, which in case of your conviction, would call for the awful visitation of the extreme punishment of the law.  I have subsequently attended to the testimonials of two persons, whom you have named as evidences in your favour, one of whom I find was not near the scene of action at the time; and the other, a female, was by her own confession, in such a state of intoxication, as to be incapable of knowing any thing that might have taken place.  She admits having gone with you in that direction, and having fallen asleep for some time, when on awaking, she found you at her side; her evidence therefore, unfortunately, avails you nothing; but it brings you within the neighbourhood of the scene of your offence, thereby strengthening the evidence against you.  Of your guilt there can be no moral doubt; the marks on your face, as sworn to by the prosecutrix - the appearance of a recent infliction of the wounds which caused them - the unhesitating and decisive manner in which the prosecutrix identified you amongst others, can leave no doubt of your identity.  It therefore now only remains for me to pass upon you the sentence of that punishment which the law has contemplated for the offence.

His Honor then passed sentence of death upon the prisoner, to be carried into execution at such time as His Excellency the Governor may appoint.


Forbes C.J., 13 January 1834

Source: Sydney Herald, 16 January 1834[4 ]


Michael Quigley, convicted of a rape with violence, on the person of Mary Ann Stafford, at Torbay Point, on the Parramatta River, was then put to the bar.  His Honor observed that with regard to this case, a difference would be made in the punishment between it and that of Patrick Gallogher [sic].  In making this difference, he would observe that there were circumstances connected with it, that induced the Court to abate the rigor of the law; the prosecutrix was living at the time in a state of shameless prostitution with a man in the house in which the offence was committed, holding out temptations, which such men as the prisoner made no scruple of yielding to.  The law could not be expected to throw that protection around persons so circumstanced, who had retired as it were, to the most remote placed for the purposes of prostitution, as it did to decent and virtuous females, engaged in the ordinary duties of life.  His Honor then directed that the sentence of death be recorded against him.



[ 1] See also Sydney Herald, 9 January 1833.  John Elliott was also found guilty of rape and sentenced to death on 3 February 1834: Sydney Herald, 6 February 1834; Sydney Gazette, 6 February 1834. He was executed: Australian, 15 March 1834.

See also Sydney Gazette, 13 February 1834; Australian, 14 February 1834 (acquittal of George Foster for rape).

[2 ] See also Australian, 15 January 1834; Sydney Gazette, 14 January 1834.

[3 ] The Sydney Gazette, 14 January 1834, said that this was the road from Sydney to Darlinghurst.

[4 ] See also Sydney Gazette, 7, 11 and 14 January 1834; Australian, 15 January 1834.

Published by the Division of Law, Macquarie University