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

R. v. Tougher [1839] NSWSupC 84

assault, sexual - rape, attempted - religious controversy - Parramatta - judges, criticism of - Attorney General, criticism of - religious bigotry - trial by jury, military juries

Supreme Court of New South Wales

Dowling C.J., 6 November 1839

Source: Sydney Herald, 8 November 1839[1]

Wednesday, November 6. -- Before the Chief Justice.

Stephen Tougher, convict, was indicted for assaulting Agnes Catherine Byrne, at Parramatta, on the 22nd September, with intent to ravish her, and Peter Kelly was indicted for being present, aiding, and assisting; a second count charged the intent to be to commit a robbery; a third count was for a common assault.  Tougher pleaded guilty to the common assault.

The Attorney-General, after stating the facts of the case as afterwards proved in evidence, said that if convicts are allowed to prowl about the country and commit outrages of this kind there will be no existing in the Colony; whatever motive the prisoners had for committing the assault, they were punishable for it.  A short time before the assault was committed, the young lady was before the public, having taken a part in a religious controversy.  (His Honor said, is it necessary to go into that? -- I shall allow no religious controversy here.)  The Attorney-General said only to caution the Jury.  The circumstance of this young lady having done what every one has an undoubted right to do, given publicity to her opinions, had made her familiar to the minds of the public; but he cautioned the Jury against suffering their minds to be carried away by what they had heard out of doors; whatever unholy feelings might be raised by the storm of public controversy in the public press, [h]e trusted the temple of justice would never be polluted by them.

The following witnesses were then called:--

Miss Agnes Catherine Byrne -- I reside at Captain Benson's, whose house is about two miles from Parramatta, on the Kissing Point road; I recollect Sunday, September 22nd; I left Captain Benson's in the morning to go to church; after church I went to the Tract Repository, and remained there about half an hour; I was unwell and left it between three and four; a daughter of the person who keeps the Repository accompanied me as far as the houses on the Kissing Point Road; she left me at the last house at the extreme end of the town; there are two houses near Captain Benson's; there is an entrance to Mr. Brown's house, and another to the Orphan School; at the entrance to Mr. Brown's I passed an old man who was going towards Parramatta; I had not proceeded far when I saw two men near Mr. Brown's gate; this was before I saw the old man; they were looking down the road in the Parramatta direction; they turned round and gave a shout, and I thought they were drunk and exulting about something; I became alarmed, and in a few minutes they disappeared on the right hand side of the road; I walked on quicker; in sight of Mr. Brown's entrance I saw th[o]se two men crouch down inside the posts of that entrance; seeing me they rose up, and at that moment this old man passed me as I passed them; two or three minutes afterwards I heard a footstep coming after me quickly; one man came alongside me and the other stood opposite me; Kelly is the man who stood by my side, and Tougher stood opposite to me; the man by my side asked me where I was going; I was so frightened I could hardly reply, but I asked him if he had seen a gig on the road, that he might think protection was near; one said no, and the other yes; they again asked me, and I said I was a member of Captain Benson's family; he immediately gripped me and said I was the one he wanted; I screamed aloud, and tried to extricate myself; he dragged me on by this cape; one man looked at the other and a word passed between them, but I was so frightened I did not know what it was; one man pointed to the other and said that is the way, pointing to the bush; I still tried to get away, and cried murder; he threw me on my face, and partly on my side, and dragged me by the cape; he dragged me to the best of my belief between thirty and forty yards; I heard a footstep of a horse, and still cried aloud murder; they had not come completely to the end of the fence at the side of the road; there was a place where the fence was broken, and that was where the man pointed to; there was no other place to get into the bush; the[y] fled at hearing the sound of the horse, leaving me lying in the road; they said nothing to me more than I have already said, only ``I was just the one they wanted;" I got up as quick as possible and ran towards the horse, and be[g]ged of the man on the horse not to leave me, as two men had attacked me on the road; the man said he would go after them, and at that moment the old man I had passed returned to my assistance; the cape was fastened with a common brass pin; the cape was dragged off by them and remained in the road; I do not know how they dragged me after the ca[p]e came off; it was not by the hand, bu[t] some grip they had hold of my shoulders I think; I got very faint and weak, and sat alongside the road after I got under the protection of the old man; the man on the horse went to Captain Benson's groom, and went in pursuit; a little boy came up at the time and stopped with me; I remained a little while sitting by the road side; I then proceeded home in care of Captain Benson's groom; I am quite sure the prisoners are the men; I saw Kelly that night in Captain Benson's parlour; he was brought in that I might identify him, and I knew him at once; one of the men had white clothes -- white trousers, and a coat with skirts to it; the other had a blue jacket and straw hat on, and some sort of white trousers; Tougher was dressed in white clothes; on the Tuesday following I saw Tougher in the Court-house; the little boy said he was a servant to some one at Kissing Point.

Cross-examined by Tougher -- You took no more unbecoming liberty with me than knocking me down and taking me by the tippet.

By  Kelly. -- Tougher caught hold of me; the other man did not touch me until the word passed between them; I did not hear Kelly tell him to lay hold of me, but he did not touch me until the word passed between them.

By the Court. -- I never saw these men before to my knowledge: I do not know of my own knowledge that they knew me, unless I had been pointed out to them.  Captain Benson's is about two miles from the Repository; I had about a mile to go by myself; I had often been alone; there was bush on either side of the road.  Captain Benson's groom walked in to church with me in the morning; Mrs. Benson begged of me not to go alone, but I thought the walk would do be good.

Private William Stone, 28th regiment: in September I was groom to Colonel French; I was out on the Pennant Hills exercising a horse on the 22nd September, I went into a cartpath that led into the bush, and was returning, when I heard a female screeching; I stopped my horse and heard the scream repeated, and rode to see what it was; when I got into the road I saw a young lady standing, I rode up to her; she came and took me by the arm, and begged me not to leave her, and I said I would not; she appeared very much fatigued and frightened, and in a great perspiration from fright; she said that two fellows had been dragging her on the road, and gave her a deal of ill usage; she said that one had on a blue jacket, straw hat, and fustian trowsers, the other a white jacket, black hat, and rather light-colored trowsers; an old man and a boy came up, and I told them to stop with her, and I rode on the road and overtook Peter Kelly; I passed him by, pretending to take no notice, and rode on to Captain Benson's; Captain Benson's servant and I went on the road and took Kelly; he made no resistance; he was rather intoxicated; had been drinking; I left him in charge of the servant and went back to fetch my horse, I returned and Kelly asked me if I knew where the magistrate lived at Parramatta and I said I did; he said he had a pass until four o'clock, and if I detained him I must get his pass renewed; we took him to the spot where it happened, but the young lady was gone; I rode after her and overtook her, leaving Kelly in charge of the servant.  I explained Kelly's dress, and she said it was one of the men, I told her to return and see the man, but when I got back to the servant, Kelly was gone; I told Kelly that I took him for being one of the men that interrupted Miss Byrne on the road; he said that he had not, that he was a married man.  I took Kelly the same evening by Mr. Byrne's hut; Captain Moffitt's nephew called us and asked us if we knew the man, the constables did not, but I recognised him, and told the constables to handcuff him: Capt. Benson offered £5 reward to any one who would apprehend the prisoners.  It is a lonely place where the transaction happened, and is not much frequented; it is the road to Kissing Point.

Cross-examined by Kelly. -- You did not tell me you was [sic] assigned to Patrick Neville, of Kissing Point, I do not recollect any such thing.

Charles Langridge, assigned to Captain Benson: I recollect the soldier coming to my master's place; we went up the road and met the prisoner Kelly at the bottom of the hill; he was walking alone, and was rather in liquor; Stone left him in my charge while he returned for his horse; Kelly stopped with me very quiet until Stone returned, and we all went to the place where the young lady was ill-used; she was not there, and Stone rode after her; as soon as Stone was out of sight, Kelly said the devil a yard will I go further with you; he put his hand into his pocket and drew a knife, and said I never shed blood yet, but if you offer to make any resistance I will rip your guts out; I had not hold of him, and he ran into the bush and escaped; I went on the road and met Stone, and we searched but could not find him. 

Cross-examined. -- Kelly told me he belonged to somebody, but it was not the right party; I never saw him before in my life; he told me that he came down the country with a team from Goulburn, and that he was employed by Mr. Small, but was not his servant.

George Carter, laborer, residing at Parramatta -- I have had a ticket-of-leave about 3 years; I was on the road on the 22nd September, I met a young lady as you turn off to go to Pemberton Grange; I saw two men in the road a little before I came to it, they were five or six rods from the main road; they came out on the main road, and Kelly asked me the road to Kissing Point; at this moment a young lady passed by; I proceeded on the road, and the men went after the young lady, I walked towards Parramatta, and Tougher said, oh come along, that old fellow ain't good for nothing, I am sure that's she; I walked very slow, as I was almost afraid something might happen; after we had parted I heard somebody cry out murder, and I was just the same as if I had been struck, I heard them cry out two or three times; I ran back as hard as I could, and saw the young lady coming along, she had dropped some part of her dress, and she asked me to fetch it; she was just ready to drop down.  I saw Colonel French's servant coming: some of the rails of the fence were down, the bush was very near to the fence, quite handy.

Cross-examined -- Tougher had a sort of light frock on, [Kelly had on a jacket; I am not sure that I] could pick the prisoners out, but I believe they are the two men.

Constable Thomas Armstrong -- I went to apprehend the prisoners on Sunday night; I took Kelly on Captain Moffitt's nephew's farm, I clapped a pistol to his breast, he said he would'nt [sic] be taken by any constable, he resisted, and said if he had known what he knew then, he would'nt have been taken.  Colonel French's servant identified the man; Kelly had a knife in his pocket, he told me he was assigned servant to Mr. Devlin, of Kissing Point; both the prisoners got passes to come to divine service at the Church of Rome; I took Tougher in his master's hut, he was smoking; when I put the handcuffs on him, one of the convicts in the hut said that if they were men he would be d--- if I should take him, he was punished for it in Parramatta; I took him to Captain Benson's, and then I asked him if he was not in Parramatta on Sunday, he said he was; I asked him if he saw a young lady on the road, he said he did not; Miss Byrne identified him as the man who had dragged her into the bush.

Cross-examined -- Mr. Devlin told me that Tougher was out on Sunday night; I made Kelly a prisoner.

Thomas Smith, laborer, living at Mr. T. Small's, Kissing Point -- I recollect master giving the prisoners a pass to go to Parramatta to prayers; they went away between nine and ten o'clock, Tougher returned about half-past five, and appeared to have had some drink; I have known him about eleven months, he has borne a good character.  Kelly had only come from the Murrumbidgee about ten or twelve days.

This was the case for the prosecution.

Tougher said nothing in his defence.  Kelly said he was a stranger in that part of the country, having been a month from Murrumbidgee; he had never had a pass to go to Parramatta before, and did not intend to do any one any injury.

The Chief Justice said that he could not see why this case had not been tried in the Court of Quarter Sessions, it being a misdemeanour that could very well have been disposed of in that Court.  The Attorney-General in opening the case, had cautioned the Jury against suffering their minds to be influenced by anything that had been said out of doors; had he not done s[o], he (the Judge) would not have alluded to any publications that had taken place, but he was sure the Jury would do the prisoners the same impartial justice that they would anybody else.  It was for the Jury to say with what intent the prisoners committed the assault, whether it was with intent to ravish her, to rob her, or merely to frighten her.  There was nothing to shew that either of the prisoners knew Miss Byrne, but was it not probable that being influenced by liquor, and seeing a female alone on the road, they were prompted by their own brutal passions to assault her.  In no country could a young female go along a private road without being subject to insult.  There was nothing before the Court to shew that the prisoners had been incited by any one to assault the young lady, on the contrary it appeared to be the mere ordinary transaction of two men assaulting a young woman whom they met on a lone road.  Had any other young lady gone by they would probably have insulted her in the same way.  It was for the Jury to judge with what intention the assault was committed.

The Jury retired about an hour, and returned a verdict of guilty of a common assault.

The Chief Justice said that he must own that, after hearing the facts of the case, he was somewhat surprised at the array that had been made in trying the prisoners in the Supreme Court, for from what he knew of the Parramatta Magistracy, he was sure that justice would have been done to the prisoners had they been tried at the Court of Quarter Sessions, but from some local excitement, raised in a most extraordinary manner, the Attorney-General instead of having them tried in a summary manner, sent them to the Supreme Court, where they had the advantage of being tried by a Jury.  By their verdict the Jury had negatived the intent of the prisoners to commit either rape or robbery, and from the evidence it did not appear that they had been incited by any one, or acted upon any other motive than those furnished by their brutal passions -- the ordinary motives of drunken ruffians meeting an unprotected female in a lonely place.  He lamented that a case of this kind should have caused so much excitement, which he was afraid might have influenced the Jury in their verdict, but as they had thought fit to acquit the prisoners on the two first counts, he could only deal with it as a case of common assault.  The case was one which called for a severe sentence; in his own mind he was convinced that had not assistance providentially arrived, they intended to have carried their violence still further, but the Jury had taken a more merciful view of their case. -- To be worked in irons for twelve months.  [The case appeared to excite considerable interest, the Court was thronged while it last.]



[1]  See also Australian, 7 November 1839 (which includes a list of the jurors); Sydney Gazette, 7 November 1839.  The Sydney Gazette, 9 November 1839, published a highly critical editorial on the conduct of Dowling C.J. in this case.  It argued that he had acted not as neutral judge, but as counsel for the prisoners.  See also Sydney Herald, 11 and 13 November 1839 making a similar general criticism of Dowling C.J., and claiming that Willis J. invariably delivered judgment in equity cases before hearing argument on the point at issue. The attacks were continued in the Legislative Council, by H.H. Macarthur: Sydney Herald, 18 November 1839 (the Herald arguing that colonial judges ``are the creatures, the mere stipendiary dependents of the Crown, and can be removed at pleasure by the principal Secretary of State for the Colonies"). These were the strongest criticisms of the judiciary since the Herald's relentless attacks on Forbes C.J. a few years earlier.

See also Sydney Herald, 27 November 1839, in which it extended the attack to the ``Roman Catholic Attorney-General," (John Plunkett) who should have included the ``Popish priest" as an accessory before the fact.  Miss Byrne had been denounced by the priest, which drew the ruffians' attention to her.  She had ceased to be a member of that church.

Chief Justice Dowling had a very different view of the proceedings.  When the session finished, he noted that it had been very satisfactory and there had been little delay.  The Attorney General attributed the lack of delay to the abolition of military juries: Sydney Herald, 18 November 1839.

Published by the Division of Law, Macquarie University