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

R. v. Ellis [1852] NSWSupCMB 8

women defendants in crime - assault - children, assault of - children, neglect of

Supreme Court of New South Wales, Moreton Bay

Stephen C.J., 20 May 1852

Source: Moreton Bay Courier, 22 May 1852, p. 2[1]

Jane Ellis, on bail, stood indicted for having unlawfully and maliciously committed a series of assaults upon Jane M'Evoy, an infant of tender years, and with having compelled the said Jane M'Evoy, to eat human excrement, and with having tied the said Jane M'Evoy up by her arms to a beam of wood. These acts were laid as having extended over a period from 1845 to the date of filing the information. A second count charged the said Jane Ellis with having committed a specific assault on one Jane M'Evoy, on a day named.

The following jury were sworn to try the case:---Darby M'Grath, A. M'Intyre, J. M'Gillivray, M. M'Lean, L. M'Lean, J. Markwell, I. Markwell, R. Lovell, T. Moore, J. M'Grath, Mellville, and C.Peacock.

The ATTORNEY-GENERAL stated the case, explaining the nature of the counts of the information, and referring to the case of the Sloanes in England as the only parallel one he had heard of, if the averments in this information should be substantiated. At the same time the ATTORNEY-GENERAL stated that in this case there was nothing to implicate the husband of the prisoner in the charges of cruelty made against herself.

Mr. PUREFOY appeared for the defence, and submitted that his Honour should call upon the Attorney-General to elect one of the two counts to proceed on, as there was in one a charge of a particular assault, and in the other a series of charges, extending over a period of six years, to answer which would be so extremely difficult on the part of any person, that, in justice to his client, he must object to that count. The learned counsel cited cases in which it had been ruled that other instances of delinquency could not be taken in support of a charge for a specific offence.

HIS HONOUR: In the first count there is a charge of continued ill treatment. Each act might not amount, in itself, to a breach of the law, but the prolongation of the acts constitute the offence charged in the indictment. Thus a person might deprive a child of one meal one day, two the next, and so forth, and although no one of these acts might be indictable, a continuation of them might amount to the starvation of the child. But it might be that the continuation of the charge would embarrass the defence.

Mr. PUREFOY submitted that it did so. The charge of continuous ill treatment had not been brought until just before the last Circuit Court, and as some of the acts referred to in the Attorney-General's opening address were alleged to have occurred at a time when the defendant was living about six hundred miles away from here---to the southward of Sydney, it might be difficult to answer them now. Almost any person would find embarrassment in answering charges extending over so long a period, and which must in some instances have occurred at so great a distance.

The ATTORNEY-GENERAL felt the force of Mr. Purefoy's remarks, and would endeavour to confine his evidence to events in this part of the country.

The evidence for the crown was then proceeded with. Our report will be confined to the leading facts, as the statements of the witnesses were fully reported in this journal before the committal.

Isabella M'Evoy deposed that she did not know her age. Mrs. Ellis told her she was five years old when she went to live with her, and she had lived with her eleven years. Went to Mrs. Ellis from her aunt, whose name was Hayes. Did not know who her parents were, but Mrs. Ellis had often told her that her mother was -----------------------and that witness would be the same. Before coming to Brisbane Mrs. Ellis induced her to sign an agreement for five years, as her aunt wanted to place her in the orphan School; and Mrs. Ellis said that she would rather sell her chemise than allow that.

Witness was compelled to rise from her bed every morning at about half past three or four, clean and dust the glasses and pewter, and, if she did not give satisfaction, was stripped naked, and beaten with a ruler, about as thick as the large end of the tipstaffs road. She had also been beaten with a green hide whip, which prisoner told her she had bought for the purpose. Sometimes she was beaten for an hour. The green hide whip was about a yard and a half long. She was tied up with a clothes line. The ruler was about eighteen inches long. When tied up her feet were about six inches from the ground. The green hide whop was burned by Mrs. Ellis because, as she said, she was sorry top have hurt her so much, and afterwards she beat her with a strap, sewed in three parts, which she said she had ordered to be made for the purpose. At last witness ran away. She had ran away before and gone back. This time she hid herself in an oven for twenty-four hours, and, leaving that place, hid herself under a house for another twenty-four hours, having nothing to eat all that time. When she came from under the house she saw Mrs. Hardgrave, and afterwards the chief constable. When witness was tied up her feet did not rest on the ground. Had only once complained of her ill treatment before she ran away, and that was to Ann Feeny, now Mrs. Cosgrove. She was afraid to complain, because of Mrs. Ellis, who had told her frequently that she would "swing" for her.

[The witness, who gave her evidence in rather a forward and eager manner, underwent a long cross-examination from Mr. Purefoy. In one part of the examination the defendants counsel wished to have a part of witness's statement before the Magistrates read, but the Attorney-General refused to allow this unless the whole statement was put in, which Mr. Purefoy declined doing.]

Ann Cosgrove deposed that, having occasion to go to Mrs. Ellis' house, about nine months ago, when Mrs. Ellis was not at home, the last witness complained to her, and showed her some marks like cuts from a knife, across her stomach. They were very many. The girl said they had been done with a whip, and begged witness not to tell Mrs. Ellis, as she was afraid of her. Saw the girl afterwards at the Chief Constable's; she had a number of marks like bruises across her back and bosom. When she saw the marks on her stomach at Mrs. Ellis', there were rags on them steeped in oil.

Elizabeth Hardgrave deposed to having met Isabella M'Evoy when she came from under Feeney's house. She gave her some food, and sent for the Chief Constable.

Thos. Wm. Hardgrave had been passing Mrs. Ellis' house about eighteen months ago, and hearing cries, went in and saw the complainant tied up, her arms over her head, and stripped to the loins. Her toes were resting on the ground, and the prisoner was beating her with the end of the line she was tied with. She had the end doubled in her hand. There were many red marks on the girl's back. She cried to witness to intercede for her, and he did. Prisoner said the girl had the d---l in her and she would beat it out. At length she promised to forgive her, and witness left; the girl being still tied up. He told a younger brother to inform the Chief Constable, but it appeared he did not do so.

William Andrew had on one occasion heard a scuffling noise when he called at the house; and Henry Rosata had seen the girl tied up about twelve months ago, when he went there on business. Prisoner told him she was beating her for stealing. The girl's back was uncovered, but he had not an opportunity of seeing any marks.

Matilda Wright deposed that when complainant was brought to the Chief Constable's witness twice saw her person examined. On the first occasion, witness saw that from her loins to the back of her knees was one mass of sires and congealed blood. Afterwards saw that she was covered with scars all over. She had a long scar under the breast, two on her knees, and a number of welts on her body beyond counting. The marks looked as if cut with a knife. They might have been done with a clothes line.

Kearsey Cannan, surgeon, deposed that he examined complainant at the Chief Constable's. From her neck to her knees was a mass of welts, or contused wounds. These injuries might have been inflicted with a rope, whip, or other pliant instrument. They were of recent date, and appeared to have been inflicted at the same time. As a surgeon, he could say that the punishment thus inflicted was such as, from her frame, she most decidedly ought not to have suffered for any offence. The girl appeared about 14 or 15 years old. There were other scars on her body, of old date. Witness did not make a minute examination.

This being the case for the Crown, Mr. PUREFOY addressed the jury for the defence, and called the following witnesses, who spoke favourably of the prisoner's character. Rev. H.O. Irwin, Messrs. H. Atkins, G.F. Poole, W.A. Brown, J.S. Beach , and G. Edmondston.

The learned JUDGE then charged the jury, pointing out the charges which appeared to be unsupported by evidence. After retiring for some time the jury returned, and said that they found a verdict of guilty on the second and not guilty on the first count. His Honour said that they did not appear to have understood his charge, and he would therefore put in writing the questions for them to consider. He was ready to receive any verdict, but wished to be sure that the jury understood him, and he them. The jury again retired, and, after long deliberation, returned with an amended verdict, stating that their first verdict was given through misunderstanding. The verdict now was---guilty on the second count,---and on the first count guilty, but not that Isabella M'Evoy was compelled to eat human excrement, and not that she was an infant of tender years.

Mr. PUREFOY objected, first, that the information was bad and informal in law; second, that it was invalid, because it had been filed last Assizes by the Crown prosecutor, whose right to file informations had now ceased; and thirdly, that his Honour's second instructions to the Jury, and the consequent amendment of the verdict, were wrong. His Honour overruled the objections, which it was understood would be argued before the full Court.

The learned Chief Justice then proceeded to pass sentence on the prisoner, for each count separately, commenting on the barbarous and cruel torture which, without doubt, had been inflicted on this young girl, notwithstanding that, from her manner in giving evidence she might have exaggerated in some particulars. The learned counsel for the defence had raised an objection, which might possibly set aside judgment on the first count, but he would take care that she should not thereby escape punishment for the cruelty of which she had been found guilty on the second count. On this latter count the sentence of the Court was that she be imprisoned for ten months, and on the first count that she be imprisoned for two years, to commence on the same date. The effect would be two years' imprisonment in all, but if the first count should be set aside, fourteen months would be taken off. The prisoner was committed to the custody of the Sheriff, and it would be recommended that she be sent to Parramatta Gaol.

Stephen C.J., 24 May 1852

Source: Moreton Bay Courier, 29 May 1852, p. 4

Jane Ellis, convicted of assault, was brought up, and it was explained that her sentence was ten months' imprisonment on the second count of the indictment, and fourteen months on the first.



[1] Commenced as R. v. Ellis, 1851.

Published by the Division of Law, Macquarie University