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

R. v. Merchant [1838] NSWSupC 53

sexual assault on child, sentence - Berrima - sentencing discretion, uncertainty about guilt

Supreme Court of New South Wales

Burton J., 2 May 1838

Source: Sydney Herald, 7 May, 1838[ 1]

John Merchant was indicted for violating the person of Emily Nye, an infant aged eight years, at Berrima, on the 13th November.  Guilty.  Remanded.


Dowling C.J., Burton and Willis JJ, 23 May 1838

Source: Sydney Herald, 24 May, 1838[2]


John Merchant, convicted of carnally knowing an infant under the age of ten years.  Mr. Justice Burton said that as there was some doubt on his mind whether the prisoner had actually committed the offence, the unfortunate victim of his lust, not being able to speak positively, and the medical gentleman rather wavering in his evidence he had been induced to spare his life, but as a Jury had found him guilty he must send him to spend the remainder of his days at Norfolk Island, with a recommendation that he never be allowed to return.



[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 122, Burton noting that the defendant was ``bond", i.e. a convict, at the time of the trial.  At the same place, there is a loose piece of paper with the defendant's criminal record.  He had been convicted of 7 minor offences, receiving sentences of 50 and 100 lashes, periods in the iron gang, and three days on the treadmill.

 See also Australian, 25 May 1838.

For a Report on Moreton Bay and Norfolk Island, see Historical Records of Australia, Series 1, Vol. 19, p. 150.

Published by the Division of Law, Macquarie University