Skip to Content

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

Gibbes v. Kentwell [1884] NSWSupC 1

seduction - damages, seduction - onus of proof in civil cases

Supreme Court of New South Wales

Innes J., 27 March 1884

Source: Sydney Morning Herald, 28 March 1884, p. 5

Jury Court. - (Before Mr. Justice Innes and a jury of four.)


Mr. F.C. Rogers, instructed by Messrs. John Dawson and Sons, for the plaintiff; Mr. Teece, instructed by Messrs. Dunn and Lyons, for the defendant.

The jury were: Messrs. J.G. carter, W. Fountain, J.C. Murphy, and Solomon Woolf.

This was an action brought by M. Gibbes, chemist and news agent, of Burwood, against Henry A. Kentwell, iron-monger's assistant, of Parramatta, to recover £1000 damages for the seduction of his step-daughter, Constance Randall. The case for the plaintiff was that Miss Randall, who is now 20 years old, was introduced to defendant at Parramatta a week before Easter, 1882, and that he visited plaintiff's house in July of that year as her accepted lover. In consequence of an insult offered to her in the form of a liberty, a quarrel took place in August, when defendant's letters were returned. The relations between the parties were resumed after a few days, and on November 9 Miss Randall visited the residence of defendant's father at Castle Hill. She deposed that a short time after this, and subsequently, circumstances occurred which formed the ground of the present action. She always considered herself engaged to be married to the defendant, who had given her several presents, and had sat with her to have a photograph taken. In January she was very ill, and one Wednesday night in that month when he told her he had to go to Newcastle, she begged him to stop, as she felt particularly unwell; but he went away, and never came to her again.

The defendant's case was that he had met Miss Randall in Parramatta Park with a lady he knew. He considered the introduction a very loose one. He became slightly fascinated with her, and would have married her had it not been for a scandal which he heard from a young fellow in August. When he told her he had something he wished to ask her about, she said he had been hearing something about her, and admitted knowing the three individuals whose names had been connected with hers in the report he had heard. It was in consequence of this that a coolness sprang up, and he never was the same afterwards. Mrs. Gibbes had come to him at Parramatta, and stated that there was not truth in the reports, which she would show by bringing an action against the informant. He had, however, advised her not to do so, because of the exposure it would entail to her daughter. He denied that he had attempted the liberty stated by Miss Randall to have occurred at this time, and said he had never been guilty of anything improper with her. He was not sure that he had ever kissed her. After the renewal of their relations he was not so warm to her as before, because he was not sure about the scandals he had heard.

The evidence of the father and brother of the defendant was taken to show that the pair were under their observation all the while they were at Castle Hill on Boxing Day, and also that there were 10,000 to 12,000 people, including some of the relatives, at Watson's Day [sic] on New Year's Day. Mr. Kentwell, sen., admitted that he regarded the young couple as engaged at this time. A witness named Collis, aged 21, gave evidence of personal experience which directly affected the chastity of the young woman; but admitted that this referred to five or six years ago. He also stated that he ahd quarrelled with her, and had only given proofs of his evidence to defendant's solicitor ten minutes before he was called.

A number of letters from Miss Randall to an articled clerk named Charles D'Apice with press copies of his letters to her, were put in by the defendant, to show that she had relations with him of an amatory character from some time in 1881 to June 27, 1882, the date of the last letter. D'Apice was not called, though defendant stated he had seen him about on the first day of the trial.

The evidence in reply tended to confirm the relations of Miss Randall and defendant as an engaged pair. The young woman denied in the most unqualified way that any impropriety had ever taken place between her and Collis, and said his evidence was utterly false. She also contradicted the defendant in his statements as to the coolness which took place in August. She said she had been acquainted with D'Apice, but had ceased to be intimate with him for several reasons, one of which was a difference on religion, before she became attached to defendant, or introduced the latter to her "step-father's" house as her accepted suitor. Her further examination broke off at some questions about defendant's conduct after their estrangement, in consequence of a violent attack of hysterics. The young man who was said to have informed defendant of the alleged scandal against Miss Randall was put into the box, in order that he might be cross-examined by the defendant's counsel, but the opportunity was declined.

Counsel then addressed the jury.

His Honor, in summing up, said that if the jury came to the conclusion that the defendant was the father of the child, any previous misconduct which might be proved against Miss Randall could only go in mitigation of damages. It must have struck anyone who had heard the case that not the least said feature of it was the certainty that one side or the other had committed wilful, deliberat, and corrupt perjury. Although the defendant had said that he had never proposed to the young woman he had an idea of ultimately becoming her husband. On the other hand, the young girl had sworn most positively that they were engaged. However, they had the evidence of the father and brother of the defendant that Miss Randall had come to the house of the former as the affianced wife of the defendant at a time which was important to the issue. He directed the jury not to rely upon the presents alone as evidence of an engagement, because by themselves they would only be proofs of an attachment. The jury had to form their own opinions as to the argument that the young woman had prevaricated so much in her evidence as to her relations with D'Apice that she was not to be believed. She had said that she believed D'Apice's intentions were honourable, and that her relations with him were off for two months before she introduced the defendant to her father's house. This statement had been borne out by the date of the last letter. He did not think it by any means to be regretted that plaintiff's counsel had not taken a technical objection to the correspondence between Miss Randall and D'Apice. Although her relations with D'Apice, regarding her as a prudent delicate young woman, were not what they should have been, still she said there was nothing improper in them. There was nothing specially improper in their clandestine correspondence, nor in the interviews with him which were unknown to her father, and only partly known to her mother. His Honor then traversed the correspondence between defendant and Miss Randall, in order that the jury might be guided by its tone as to the relations of the parties at the critical period. He asked the jury to consider whether they believed that the young woman was likely to have submitted herself to any casual individual who had not been married when she had been accepted in the house of her future father-in-law, and could look forward to an advantageous settlement. The learned Judge went on to say there was quite sufficient in a case of this kind to justify the defendant in obtaining every possible piece of evidence to clear himself if he were innocent. He at the same time complimented the counsel who had conducted the defence upon the absence of any desire on his part to inquire into prurient details. If there were any doubt in the minds of the jury on the question they must give it to the defendant, for it was the duty of the plaintiff to make out a preponderance in his favour before he could succeed. If it came to a question of damages they must not employ golden scales, for the person aggrieved was entitled to compensation for the dishonour and disgrace brought upon himself and his family, in addition to the £150 he was out of pocket.

The jury, after a retirement of nearly an hour, returned into court with a verdict for the plaintiff, damages £300.

Published by the Division of Law, Macquarie University