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

R. v. Macarthy and others [1835] NSWSupC 94

married women's legal disabilities, liability for crime - women defendants in crime - approver - stealing from dwelling house - perjury - infanticide

Supreme Court of New South Wales

Burton J., 17 November 1835

Source: Sydney Gazette, 19 November 1835[1 ]

(Before Mr. Justice Dowling and a Civil Jury.)

John Macarthy and Timothy Donovan were indicted for a felony in the dwelling-house of James Duffy, and stealing therefrom sundry articles the property of Abner Brown, at Campbell Town, on the 15th June last; and Brian Macnamara, Dennis Macnamara, and Mary Macnamara, stood charged for receiving the same knowing them to be stolen.

James Duffey is a settler at Campbell Town; some time previous to the robbery Mrs. Celia Brown, the wife of Mr. Abner Brown, of Sydney, was residing with Duffey, but had gone to Sydney accompanied by James Duffey's brother, the day before the robbery; on the evening of the day laid in the information Duffy was sitting in his house, when Macarthy called on him and asked him to go and have something to drink, and a game of cards; Duffey refused to go with him, and Macarthy produced some spirits, and Duffey drank some; Macarthy wanted Duffey to drink more, which the latter refused, but said if Macarthy would leave him some he would drink it afterwards, which Macarthy did; Duffey then locked up his house, and accompanied Macarthy between a quarter and half a mile on the road, where he left him and returned home; on arriving at home, he found the back door of his house open, and the lock of the front door hanging down, it having been forced and afterwards refastened; he missed a feather bed, blankets, and sheets, also a quantity of wearing apparel, which had been abstracted from a chest which appeared to have been wrenched open with an axe, which was lying on the floor; the property stolen belonged to Mrs. Brown; Duffey immediately went to Mr. Bowen's public-house in Campbell-Town, and enquired for Macarthy as he blamed him for the robbery, on account of his having induced him to drink - his having persuaded him to leave the house, and also from his knowledge of the situation of things in the house; Mr. Bowen informed Duffey that the prisoners Macarthy, Donovan, and the approver, Joy, had been drinking at his house; a search was made after them and the approver, Joy, was taken into custody that night, and the prisoners, Donovan and Macarthy, were apprehended on the Monday following, but in the absence of proof they were all released; the approver, Joy, was apprehended a second time, and having remained in custody for a month, effected his escape and went to Maitland, where he was charged with horse stealing, committed, and forwarded to Campbell Town; on his arrival at Campbell Town, he gave information of the robbery, and stated that had been employed by Macarthy and Donovan to carry the stolen property from a place where it had been planted in the stump of a hollow tree, to the prisoner Macnamara's house; Mrs. Macnamara purchased the things for £7; Dennis Macnamara was present when Mary Macnamara bought the stolen property, but it did not appear that he had cognizance of the property being stolen; the proof of the criminal knowledge of Bryan and Mary Macnamara rested on the prisoner Macarthy's having told them to keep the property out of the way for fear there should be a search made for it.

The whole case against the prisoners rested solely on the testimony of the approver, Joy, who gave a contradictory and evasive evidence, which, conjoined with his subsequent committal for horse stealing, and the length of time that elapsed before he gave information of the robbery, rendered his testimony very doubtful.  The only corroborative testimony was that of Duffey who spoke of the persuasion of Macarthy to make him drink and leave his house.

Mrs. Brown identified the property as belonging to her, and as being that left at Duffey's house on her removal to Sydney.

The Jury were absent from Court about an hour and a half, when they returned a verdict of Guilty against John Macarthy, Timothy Donovan, Bryan Macnamara, and Mary Macnamara; and of Not guilty, for Dennis Macnamara.

His Honor stated that he had put the case to the Jury to discover whether they would find Bryan and Mary Macnamara jointly guilty, it was now his duty to direct them to acquit May Macnamara, as, the Jury having found them jointly guilty, she was under the control of the husband, and however cognizant of the offence, was not, acting under his direction, guilty in the eye of the law.  Mary Macnamara was discharged, and removed out of Court.

His Honor directed that the approver, Joy, should be confined and prevented from communicating with any person, and that the witnesses for the defence, John Macnamara and Malachi Daley, should be committed to take their trial for perjury; and Mr. Brown and Mr. Duffey were held to bail to prosecute them.

The prisoner, Bryan Macnamara, having stated in his defence, that he was in Sydney when the robbery was committed, and that he could bring respectable testimony to prove the fact.  His Honor directed that the names of such witnesses should be taken down in order that the Court might ascertain whether it had been imposed on, and also that the prisoner might have the benefit of such testimony, which His Honor said he would lay before the proper authorities.  Mr. Weston took down the names of the witnesses, and the Solicitor General sent immediately to them in order to prevent any tampering between them and the prisoner or his friends.



[1 ] See also Australian, 20 November 1835; and for the notes of the trial judge, see  Burton,Notes of Criminal Cases, State Records of New South Wales, 2/2423, vol. 22, p. 38.  For the criminal liability of women, see also R. v. DebanksSydney Herald, 6 August 1835 (Ann Debanks and Catherine Noah, two women of ``loose character" convicted of larceny and sentenced to two years in the Female Factory); R. v. MickenoeSydney Herald, 23 November 1835; and see Australian, 20 November 1835; Sydney Gazette, 19 November 1835 (arson); R. v. MaherSydney Gazette, 12 November 1836; Sydney Herald, 14 November 1836 (wounding another woman, leading to six months in the Female Factory); R. v. GrahamSydney Herald, 8 August 1836; Sydney Gazette, 9 August 1836 (murder of new born child, though found not guilty for lack of proof that the child had been born alive).

Published by the Division of Law, Macquarie University