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

R. v. Kane [1840] NSWSupC 16

children, neglect of, women defendants in crime

Supreme Court of New South Wales

Dowling C.J., 2 May 1840

Source: Sydney Herald, 6 May 1840 [1]

Patrick and Bridget Kane were indicted for a misdemeanor in having on the 25th day of December last, while in liquor, neglected their son James Kane, an infant of eight months old, and incapable to take care of himself, in consequence of which neglect the clothes of the said James Kane caught fire and he was so seriously burned that he died in the course of the day.

            The prisoners pleaded not guilty; and His Honor requested Mr. Callighan to undertake their defence.

            In opening the case the Attorney-General stated that the present was another instance of the awful evils which intemperance is inflicting on this otherwise blessed country.  Were the importers of these spirits to attend the Supreme Court and hear the history of every gallon they had imported, as revealed in the crimes that came before the Court in charges of murder, of parracide, matricide, and all the crimes that can be conceived, not to mention the robberies it led to, and the number of lashes which it inflicted on the backs of the criminals already under sentence, he was sure they would to a man renounce the trade.

            Benjamin Sparke, assigned to Jenry Shadforth, J.P., being sworn, deposed, that the prisoners lived on Mr. Shadforth's property; they had a boy about eight or nine months old; it was a fine healthy child names James.  He was passing their residence about ten a.m. on Christmas and heard the child crying, which was quite unusual.  He heard the cries one hundred yards off; went up and saw the child lying on the sill of the door; all its clothes were burnt off but a sleeve of a frock which was on fire.  He tore it off and burnt his fingers in so doing; the child was in great agonies.  He took it up and went into the first room, and saw no one it; he went into the next room and saw the prisoners lying on the ground; there was no bed in the second room, but there was in the first.  They were asleep; he had considerable trouble to awaken Kane, and when he was awakened witness told him his child was burned Kane woke his wife, and went immediately up to Mr. Shadforth's.  There was a log on the fire burning, and the fire appeared to have been raked; there was no fender.   Both of them appeared a little in liquor; after she rose she put a cloth round the child, and appeared very sorry; he and the woman immediately went towards Mr. Shadforth's with the child to see the doctor, and saw Mr. Shadforth and the doctor coming.  The doctor told the woman to take the child home - it was then alive.  The next time he saw the child it was dead.  In cross-examination witness stated that the child could crawl about; the fire was very dim; never heard the child cry mamma, mamma.  The mother appeared very sorry indeed, and was anxious to get the child conveyed to the doctor, and when she saw the state of the child the sorrow and fright made her sober.  The child was outside on the sill lying on its back.  The cries of the child were loud enough to have awakened any person that was not drunk.

            Mr. Shadforth, - I employed the husband as a labourer; he had served his time in the Colony; they brought but one child; from eight to ten years old, with them; Kane told me he had another son at school at Penrith.  On Christmas day, about ten a.m. the prisoner Kane came crying to my house, and told me his child was burned to death; he was not sober; I thought it was grief; after gong to the hut the doctor desired a fire to be made to get some warm water, when Kane refused, saying it was of no use, as his child was dead.  The doctor and me got wood and made a fire; the prisoner was very noisy all the time the doctor was examining the child, and in my opinion the riotous conduct of the prisoner was caused partly by grief, and partly by drink.  The wife was sober, and held the child while the doctor was dressing it.  She had been drinking apparently by her dress; he husband challenged her with being drunk, and she did not deny it; I challenged the husband with [being] drunk, and he replied that he was not, all he had drunk that morning was a glass of wine, which McEwen, a neighbour, had given him.  On searching the hut a bottle with about half a glass of rum was found, and a two-gallon keg, empty, which smelled of rum.  On the next day Kane acknowledged that on the day before Christmas he had got a gallon of rum from Penrith, and that he and his neighbours drank it; they always appeared very fond of the child, and both were very sorry at its being so severely burned; my men were getting ready at the time of the accident to hear prayers on Christmas day; the Catholics do not attend these prayers, but I take care that they are clean, and those who wish to go are sent to prayers.  Cross-examined by the prisoner - I have never seen the husband in liquor, but believe he has been so during the four months he has been in my employ; the wife was drunk one Sunday, she got intoxicated by some relations visiting them; they are not habitual drunkards.

            The medical attendant proved that the child was so burned across the chest and bowels, that there was no chance of its surviving; it was dead about two hours after witness first saw it; the husband was in a state of intoxication, the woman was perfectly sober and collected.  Witness would know if a person was in liquor.  Spirituous liquors predispose a person to heavy sleep; rum would strengthen a woman while nursing if given in the quantity of a wine glass full per day, diluted with water; porter would be better; all stimulants increase the quantity of lacteal fluid, but do not improve the quality.  If the mother was in health he would not give her any rum, and if ill, he would prefer other stimulants to rum.  The husband was very loud and abusive, saying he had no luck on it.  The female is hard of hearing, and the witness had prescribed for her repeatedly, but she might have heard her child cry, even if asleep, provided the sound ear was not next the pillow.

            The prisoners stated in their defence that it was Christmas time, and the husband had gone for a drop of rum on the previous evening, which they partook of too freely, and the husband being weakly lay down in the back room, as the heat was very intense owing to their bed standing close to the fire after she had cooked some victuals she went and lay down in the cool room with her child in her arms, gave it the breast, and spoke for a little while to her husband, after which she fell asleep, and did not know how her child left her, but no doubt it had crawled along the floor till it came to the fire, when its clothes had caught the flames.

            Mr. Callighan submitted to His Honor whether the precedent on which the indictment had been framed could apply to the case, seeing in that one the parties were indicted for deserting, refusing to clothe and nourish their child, whereas in the present case it appeared in evidence that the parents were very fond of their infant, and had done all the things alleged in the precedent, and the indictment ought to have charged them with an accident occurring through their own neglect, rather than with neglecting the child.

            His Honor over-ruled the objection, and in summing up stated, that any neglect or breach of a moral duty which is an outrage on society, was an indictable offence; as it was, should a conviction take place, the objection raised by Mr. Callighan would be brought before the Court.  The Jury found a verdict of Not Guilty.

            His Honor advised the prisoners to fall down on their knees and thank God for the narrow escape they had had, by the merciful view which the Jury had taken of their case, and who had satisfied there consciences by returning a verdict of Not Guilty.  Had a verdict of guilty been returned, added His Honor, he would have felt it his duty to have sent the husband to an ironed-gang for two years, and the wife for the same time to the 3rd class of the Factory.  He counselled them in future never to drink anything stronger than water.  They were then discharged.


[1]              See also Sydney Gazette, 5 and 7 May 1840, calling the defendants Keane.

Published by the Division of Law, Macquarie University