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

R. v. Mackenzie [1841] NSWSupC 71

infanticide - women defendants in crime - concealing birth of child

Supreme Court of New South Wales

Dowling C.J., 12 July 1841

Source: Australian, 15 July 1841[1]

            TUESDAY, JULY 13 - Before Chief Justice Sir James Dowling.

            Isabella McKenzie, convicted on Monday for concealing the birth of her child, was brought up, and sentenced to be imprisoned for twelve months in the Sydneygaol.

            Mark Day, was arraigned on a charge of murder; the indictment charged him with having pushed one Amelia Cook on a fire, on the 26th of May last, and thereby caused her death.

            The Attorney-General opened the case, and after drawing the Jury's attention to various points which would be brought before them in the evidence on the part of the Crown, and stating that the case mainly rested on the evidence of the medical gentleman who attended the deceased, and the deceased's deposition before her death, proceeded to call the first witness.

            Maria Bruce, deposed that she lived in Clarence-street, near the house occupied by the prisoner and deceased in May last. One night, about the end of May, she heard groans in Day's house, and went in; the deceased opened the door. The deceased shewed witness her arm which was burned, and at her request, went for Doctor Dorset. Deceased had burns on her neck and breast also; she said she had been burnt as she was lighting her pipe, and Day said he was in bed at the time, but that he had put out the fire with water; deceased's clothes were wet at the time. Witness was of opinion at the time that the deceased would have got over the burns and recovered.

The witness was cross-examined by Mr. Foster for the prisoner, and still maintained that deceased has always attributed the burns to her lighting her pipe, and had not in her presence, given any other account of it. Deceased's daughter, who was anxious to get her away from the prisoner, always said that Day had burned her mother, and that he should hang for it.

William McTaggait Dorset, Surgeon, practising in Sydney, deposed that the death of deceased was caused by exhaustion consequent on the extent of injury created by theburns. The deceased was an old woman; deceased at first told him that she had been burnt while lighting the fire; again that the prisoner had struck her, and that he had pushed her so that she was burned. The prisoner shewed his hands which were slightly burned; deceased said she wished the prisoner to be punished, but not to be hanged; deceased died about forty-eight hours after her deposition was taken; witness once entertained slight hopes of her recovery, but was apprehensive on account of her age, and informed her of her danger, of which she appeared perfectly sensible.

John Long Innis, Superintendent of Sydney Police, deposed that he had attended the deceased one evening in June last, and had taken her deposition; she appeared dangerously ill and seemed to beware of the danger she was in; the prisoner was in custody, and witness sent for him; he declined putting any questions to the deceased, but said her statement was altogether untrue; the deposition was taken on the 4th June, and deceased expired on the 8th.

Cross-examined - Witness did not know the prisoner personally, but had heard that he bore a most excellent character; had he been a bad character witness would have known him.

Other witnesses were called, but did not add any thing material to the evidence for the prosecution.

The deceased's position was to the effect that prisoner struck her a violent blow on the right side, which caused her to fall into the fire, from which she rose with difficulty, and that she had been ill ever since in consequence.

Mr. Forster addressed the Jury for the prisoner and called Mr. A. B. Smith who gave the prisoner a most excellent character.

The Attorney General replied, and afterwards his Honor the Judge went over the evidence at length.

The jury without leaving the box acquitted the prisoner.

Elizabeth Patterson, arrained on Monday, was put on her trial for the murder of her child, aged five months; one count in the information charged the prisoner with starving the child, and another with administering improper and poisonous food.

After addressing a few observations to the Jury the Attorney General called the witness for the prosecution.

Sophia Buckley deposed that the prisoner and herself were brought up together; that prisoner had had two children, one of which, five months old, was dead; prisoner was given to drinking and to bad company, and frequently neglected the child; she often wished it dead; and on one occasion witness saw the prisoner while drunk carrying it with its head downwards; about three weeks before the child's death, prisoner was from it almost all day; the child was always very thin and would not eat well.

The witness was cross-examined by Mr. Purefoy, but nothing was elicited to shake her evidence.

George Buckley deposed that he had known the prisoner many years; he also knew the child; prisoner was much given to drinking and bad company, and often neglected the child day and night; witness had often seen her drunk and asked her if the child was dead; she had replied no, but that it soon would be.

This witness was also cross-examined, but without effect.

Mary Buckley, being examined, corroborated the evidence of the previous witness.

Mary Griffiths, deposed that she saw the prisoner drunk, about a fortnight before the child died; prisoner said she would poison it.

Cross-examined - The prisoner was drunk at the time, and witness was not aware how she treated the child in general.

Gordon Gwynne, Surgeon, described the appearance of the child after death, and gave it as his opinion, that the child died from starvation; the witness also deposed that the excessive use of ardent spirits, would materially injure a woman's milk, both in quantity and quality.

This was the case for the prosecution.

Mr. Purefoy submitted that there was no evidence to support the charge of manslaughter, but his honor the Judge was of opinion that there was evidence sufficient to send the case to a jury.

Mr. Purefoy then commented at some length upon the evidence, and called Dr. Hill, Colonial Surgeon, at Parramatta.

Dr. Hill, deposed that the prisoner was under his care for two months in the factory with the child, and during that time, the child was properly attended to; this was all he knew of the matter.

William Coston, deposed that he knew the prisoner, and had seen her always give the child what she had to give it.

The Judge then summed up the case to the jury, who found the prisoner guilty of manslaughter on the first count.

The prisoner was sentenced to be imprisoned for two years in H. M. gaol, Sydney, his Honor remarking that the present state of the law did not allow him to transport her, notwithstanding the enormity of the crime she had been convicted of.


[1]              See also Sydney Gazette, 15 June 1841.  On 13 July 1841, she was sentenced to imprisonment for 12 months in the Sydney Gaol: Sydney Gazette, 15 July 1841.

Published by the Division of Law, Macquarie University