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

R. v. Wholohan and others [1840] NSWSupC 8

conspiracy to pervert justice, rape

Supreme Court of New South Wales

Dowling C.J., 5 February 1840

Source: Sydney Herald, 7 February 1840 [1]

Edward Wholohan, Michael Wholohan, Ann Wholohan, and Francis Darling were indicted for a misdemeanor.

The information recited that heretofore, to wit on the 27th July, at Wollongong, in the Colony of New South Wales, Patrick Plunkett, Esq., being one of the Justices assigned to keep the peace within the said Colony, did in due form make out a warrant of commitment, directing the keeper of Sydney Gaol to detain the body of John Doyle, who stood charged with a rape upon the body of one Mary McMahon, and the Attorney-General informed the Court that the prisoners being wicked and evil disposed persons, knowing the premises and also that the said Mary McMahon was a witness against the said John Doyle, and intended to appear to give evidence against him, but they contriving and intending, as much as in them lay, to obstruct and prevent the due course of justice, and to prevent the said John Doyle from being convicted, and enable him to evade justice and go unpunished, on the 27th of October at Wollongong, aforesaid did conspire combine and confederate together to solicit and persuade the said Mary McMahon to leave the district of Wollongong, and remain in another place during the session of the court in which the said Doyle was to have been tried, and in pursuance thereof did promise the said Mary McMahon that if she would keep out of the way until the trial was over she would be rewarded for it, to the manifest obstruction of public justice in contempt of the laws, to the evil example of all others, &c. &c.  A second count charged that the prisoners in pursuance of the conspiracy, did unlawfully threaten the said Mary McMahon, that if she did not keep out of the way and refrain from giving evidence against th[sic] said John Doyle, she should be abused and ill treated.  The third count charged the prisoners generally with conspiracy to induce the said Mary McMahon to suppress her evidence against Doyle.  The fourth charged the prisoners with knowing that an information for felony was about to be exhibited against John Doyle, and that in order to prevent his conviction they conspired together to prevent the said Mary McMahon from attending as witness against him.

Mary McMahon, a girl about thirteen years of age, (who is twenty in appearance,) was ravished by a man named Doyle, who was committed to take his trial for the offence.  McMahon lived with her uncle and aunt a short distance from Wollongong, and the prisoners lived a few rods[sic] from the house.  After the committal of Doyle the prisoners and others always used to call after McMahon, there goes the prosecutor, and they told her that if she went to prosecute Doyle he would be hanged and his ghost would haunt her.  The prisoners, who all lived together, enticed McMahon into their house, and pursuaded her to go away saying that Darling would marry her.  Mrs. Murphy, McMahon's aunt, who has had charge of her since she was six months old, took an active part in the prosecution, which excited the ire of the Wholohans, who used to call her a prosecutor, with a number of abusive epithets, and the female prisoner accused her of wanting to make a prosecutor of a poor innocent angel, the angel meaning Mary McMahon.  Murphy told Wholohan not to allow McMahon into her house, but the only reply that she got was that she "wanted to pay for Mary's clothes with Doyle's blood money."  After she had been served with a subpoena, Mary McMahon absconded from her aunt's house and went to Campbelltown (the Wholohans accompaning[sic] her a mile or two on the road) with Darling, with whom she lived as his wife for nearly a month, when Darling gave her some money to come to Sydney, but she arrived too late for the criminal session.  When she missed McMahon, Murphy went to the house of the prisoners, when Ann Wholohan abused her very much and told her that she had got the girl a good husband, and that she was planted and could not give evidence against Doyle.

Mr. Purifoy addressed the Jury for the prisoners at considerable length, contending that the only person whose conduct was reprehensible was Darling, in not fulfilling his promise to marry the girl, but the conduct of the other prisoners he argued was commendable, as it was evident their only intention was to get her married to Darling.

The Judge summed up at considerable length, leaving all the Jury to say whether the intention of the prisoners was to seduce the girl, or to prevent her from giving evidence.

The Jury retired for a few minutes, and returned a verdict of guilty against all the prisoners.

The Judge enquired the character of the prisoners.  Dr. Osborne, a Magistrate in the neighbourhood, said that there never had been any charges against them, but they were not persons of good repute.

The prisoners were remanded for sentence.

Dowling C.J., 8 February 1840

Source: Sydney Herald, 10th February 1840 [2]

The Attorney-General prayed the judgment of the Court upon Edward Wholohan, Michael Wholohan, Ann Wholohan, and Francis Darling, convicted of conspiracy.

            The male defendants handed in a petition in which they asserted their innocence, and prayed the judge to consider the case of their mother with mercy on account of her age, and offered to undergo her sentence among them.

            The Chief Justice said that the verdict of a jury having been obtained he was not at liberty to consider them innocent.  Independent of the enormity of the crime in an abstract point of view this offence was attended by so many circumstances of aggravation, that he could not do less than pass the heaviest the law allowed, in order to shew others that they cannot with impunity interfere with the due administration of justice.  With respect to the female prisoner, her age and sex were only aggravations of her offence.  The sentence of the court was that Ann Wholohan be confined in the factory for two years; that Michael and Edward Wholohan be imprisoned for 2 years, and that Francis Darling be worked in irons for two years.

Notes

[1]             See also Australian, 8 February 1840; and see R. v. Doyle, 1841.

[2]             See also Australian, 13 February 1840; Sydney Gazette, 11 February 1840.

Published by the Division of Law, Macquarie University