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

R. v. Brady and Nutter [1837] NSWSupC 20

rape, character of woman - Sutton Forest - death recorded, meaning of

Supreme Court of New South Wales

Dowling A.C.J., 10 February 1837

Source: Sydney Gazette, 11 February 1837[1 ]

RAPE.

Before Acting Chief Justice Dowling and a Military

Jury.

 

Patrick Brady, stood indicted for a rape on the body of Martha Emily Cadman, at Sutton Forest on August 20 1836, and George Nutter for aiding and assisting thereat.

Martha Emily Cadman Examined; I am 16 years of age, I was brought up in the Orphan School.  Mr Crawford of Prospect took me out about two years ago, to act as nursery maid in his family, I remained in his family about 12 months, I then went to Mr. Grays in York Street, and was there employed at needlework when his daughter was married, I went with her, and her husband to the New Country about 200 miles from Sydney; I remained there for six months, and in consequence of my masters, ill treatment of me, I left my service, for which he brought me before the magistrate Major Elrington, who sentenced me to the house of correction for three months and forwarded me on foot with a constable of his, named McCarshy, who accompanyed [sic] me 30 miles, and then gave me over to constable Nutter, the Elder prisoner; he conducted me to Sutton Forest and we stopped at Gray's public house, where as bed was prepared for me, Nutter said, I should go down to Brady's hut, although I requested that I might be allowed to remain at Mr. Gray's, he Nutter said that if I did not go down Brady would report him; I had to comply, on my arrival I found 3 or 4 male persons there; there was a second room in the hut, which was filled with potatoes, and other things; I lay down in my cloths, on the sofa, the men lay on the floor; Brady asked me several times to lie down on the bed beside him; I refused, observing that it was not a proper place for me, after being on the sofa about half an hour Brady dragged me off the sofa, and pulled me on to his bed; I was full dressed at the time, Nutter was on the same bed; I screamed out (here the poor girl described the nature of the assault, her appearance is mild and unobtrusive, and she appeared much affected during the painful recital) next morning I proceeded in company with Nutter on the road to Bong Bong; A man named Scholefield, who slept in Brady's hut, that night said that he would have come to my assistance, only that Brady was a constable; on the road down from there to Liverpool, I did not mention the circumstance, having heard that I would only subject myself to ill usage from the constables had I mentioned it; there were two women in the goal at Campbell Town where I was put, and I was afraid to mention it to them, as they were going to the Factory; in consequence of an illness originating from the assault I had to be put into Liverpool Hospital, from whence I was conveyed to Sydney in a cart; on my arrival at Sydney Goal I communicated the circumstance to my mother; and in less than a quarter of an hour after Doctor Moncrieff and another gentleman visited me; I reside at present at Mr. Walker's, wheelwright, near Burwood, on the Liverpool Road; I slept at Mrs. Bigge's last night.

The witness then went through a long cross-examination by Brady, in which she had to repeat the Lord's prayer; to tell the number of lock ups she was in; and the time that was occupied in her removal after the committal by Major Elrington, until she arrived at Sydney.  She also declared firmly, that previous to, or subsequent to the outrages perpetrated on her, by Brady, she never had improper connections with any person.

Nutter also cross-examined her at considerable length, on various topics unconnected with the matter at issue; the poor creature from the length of time they had her in their power, called them by name occasionally, and even that circumstance was commented on; she went through a painful unassisted cross examination; and further stated when she left her master's she went to reside at a carpenter's; there was a second man residing in the house; she slept in a bed separated from the men's by bark; there was a married woman lived close at hand, with whom she resided, but they had not the second bed; another constable named Johnston attempted to take liberties with her at Campbell Town, for which he offered her 4s. but she rejected his proposal.

Jane Brian examined - I am the mother of Martha Cadman, by my first husband; I reside in Philip-street; I obtain my living as a char-woman, and by washing and ironing; my present husband is a fencer; I was in the Sydney Gaol at the time of my daughter's arrival; she communicated the circumstance to me as soon as she saw me; she was then unwell; she said there were three invalids in the room when she was injured, beside Brady and another; she also said that she was afraid to tell what happened to her con consequence of a female having told her that she would be murdered on the road did she mention it; she said the reason she left her service up the country was, that he master placed her in a chair, and compelled her mistress to hold her hands while he cut her hair off; in answer to a question by Nutter, she stated that her daughter was born at Woolwich, that her former husband belonged to the Artillery, and that she had seven children in that garrison.

Henry Madden, medical attendant at the Sydney Gaol, proved that on his examination of the prosecutrix he found her labouring under a loathsome disease.  In answer to a question by the Judge, the witness said that the prosecutrix made a charge against him of making an attempt on her virtue; her conduct while in Gaol way highly unbecoming; she wished at one time that he was in bed with her.

The Attorney General - Pray, sir, why did you not tell that at the Police when you were there?  I was not asked.  You are a prisoner of the Crown?  I am until Monday next.  I have given her a few shillings occasionally in consequence of her poverty.

His Honor - have you made any improper overtures to her?  No, I have not.  Where did you get the money?  I had remittances from home.

The Attorney General - Pray, sir, why did you not tell the Governor of the Gaol that she was the lewd character you represent?  She was not when she came first, but she may be corrupted by the women of the Gaol.

Dr. Moncrief stated, that he examined the girl, and found her ill; her conduct from his observation was that of a quiet, well behaved girl; she was for some weeks in the gaol, during which time she had to associate with the most abandoned characters.

Mr. Weston - I am Governor of the Sydney Gaol; I know the prosecutrix; she has been some weeks under my charge; I considered her a very mild, inoffensive girl; I never saw any thing loose either in her conversation or habits; I never heard that she was so disposed; she was very ill while under my charge.

This closed the case for the prosecution.

For the defence, Thomas Scholfield, a prisoner of the crown, was called, whose testimony in favour of the prisoners was of the most doubtful description, according to his own account of himself, elicited by the Attorney General; he went through the different ordeals of his class, iron gangs, &c. &c.; he had known the prisoners previously, and they him, and under different circumstances.

Another prisoner of the crown named Williams was also examined his testimony went to prove any thing, or nothing, he unfortunately for himself being troubled with fits; he stated, that in consequence of the disease under which he laboured, he had a bad memory.

Mr. Gray publican at Sutton Forest, proved the arrival of the prosecutrix at his house on the day laid in the indictment, she appeared much fatigued, and in consequence he said that she might remain at his house during the night, and sleep with his female servant, to this constable Nutter objected, without he Mr. Gray would be accountable for her appearance next morning, this witness declined doing, and she proceeded in company with Nutter to Brady's hut, heard no complaints next morning on the subject now before the Court, as she passed next morning, she spoke to a female servant of mine, a native, and shook hands with her at parting.

Martha Cadman was again put in the box; and examined by the Attorney General and cross-examined by the prisoner Brady; her testimony, was straightforward, as in the early part of the trial there was no prevarication, nor yet the most remote appearance of disposition on her part to withhold information, or to evade answering the numerous questions put to her.

His Honor, in addressing the Jury, repudiated in the strongest terms, the treatment which young free females, who may have erred in service, or otherwise, are subjected to, on their commitment to Sydney Goal; or in fact, to any other goal in the colony.  ``They are," says Mr. Justice Dowling, ``compelled to associate with the most depraved and abandoned of their sex, whereby they are hurled into a vortex of misery on their departure from prison."

The Jury, after being out of Court a short time, returned with a verdict of Guilty against both prisoners.  Remanded.

 

Dowling A.C.J., and Burton and Kinchela JJ, 31 March 1837

Source: Sydney Herald, 3 April, 1837[2 ]

 

Friday - In Banco - Before the three judges.

At the opening of the Court, Patrick Brady and George Nutter, convicted, the former of rape, and the second for being accessary thereto, were placed at the bar.  The Attorney-General having prayed the judgment of the Court, the prisoners were called on to shew cause why judgment of death should not be recorded against them.

Brady said that within the last few days, the master of the girl had come to Sydney, and had promised to communicate with the judges on the subject; if his witnesses had been down at the time of trial he would not have been convicted.

The Acting Chief Justice said that in consequence of the circumstances which had transpired at the trial, he had thought it his duty to enquire into the character, manner of life, and conversation of the girl, and the result had been, that he felt himself justified in telling the prisoners that their lives would be spared, but still their conduct had been such as rendered an exemplary punishment necessary.  Judgment of death was then recorded against both prisoners.[3 ]

 

 

Notes

[1 ] See also Sydney Herald, 13 February 1837; See also Dowling, Proceedings of the Supreme Court, Vol. 131, State Records of New South Wales, 2/3315, p. 152, (continuing at Vol. 132, 2/3316, p. 1).

For another rape case which raised the character of the woman, see Australian, 10 August 1838; Sydney Gazette, 11 August 1838; Sydney Herald. 10 August 1838.

[2 ] See also Sydney Gazette, 1 April 1837; Australian, 4 April 1837.

[ 3] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Justices Burton and Kinchela wrote to the Colonial Secretary on 22 May 1837 in response to an inquiry concerning the practice of sentencing prisoners to death recorded rather than pronouncing the sentence of death.  They said that they agreed with the Attorney General that in legal construction there is no difference between the two, but that did not require death recorded cases to be placed before the Executive Council for consideration of mercy.  The governor's instructions required a written report when prisoners were ``condemned to suffer death".  Under the statute (4 Geo. 4 c. 48), they said, judges were granted power to refrain from pronouncing judgment of death in capital cases whenever they were of opinion that the offender was a fit and proper subject for a recommendation of Royal mercy.  In such cases, death was to be recorded and not pronounced.  Justice Burton and Kinchela argued that such cases were not within the spirit or terms of the King's Instructions.  (Source: Chief Justice's Letter Book 1836-1843, State Records of New South Wales, 4/6652, p. 37.)

On this interpretation, the judge's power to sentence prisoners to death recorded mitigated the harshness of capital punishment by extending the power of mercy to the judges as well as to the crown via the governors.  The judges' decisions to pronounce the sentence of death recorded could not be reviewed.

The Sydney Herald, 6 February 1837 claimed that the judges of the Supreme Court were now commuting sentences illegally: they may order death recorded, it said, but they commuted it to punishment for a brief period in an iron gang.  The Herald appears to have misunderstood the legislation.  See for instance R v. Halligan, Australian, 7 February 1837.

See also Execution of Criminals Act, which received royal assent 14 July 1836 and was in force from that day: it enabled judges to extend a term of life to criminals convicted of murder as well as other crimes: Australian, 13 December 1836.

 

Published by the Division of Law, Macquarie University