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

R. v. Wild [1852] NSWSupCMB 20

rape - sexual assault on child - capital punishment

Supreme Court of New South Wales, Moreton Bay

Stephen C.J., 18 May 1852

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

William Wild, late of Maryborough, labourer, was indicted for violating the person of Mary Ann Foster, an infant under the age of ten years, at Maryborough, on the 10th of August, 1851. The case had been stood over from the last Assizes, in consequence of the absence of the principal witnesses.

The ATTORNEY-GENERAL stated the case, and called

Ann Foster, the mother of the child named in the indictment. This witness was at first so overcome as to be unable to stand in the box and give her evidence, and his Honour allowed her a chair until, being refreshed with a glass of water, she was enabled to proceed with her statement. She deposed, in substance, that about three months before last Assizes she was living at Maryborough, and on an evening, the date of which she did not remember, had occasion to go from her own house to the house of a Mr. Surplice, about twenty or thirty yards away, top speak to a Mr. Ricketts who was there. She had scarcely reached the door when she heard a scream from her own house, and thinking that the child might have fallen into the fire, asked Mr. Surplice to run down and see, which he did; she followed, and on entering her house saw a man sitting on the sofa. Two candles which she had left burning were extinguished, and she could smell something like the smoke of one having just been put out. When she had left home her daughter Mary Ann, who was about nine years old, and another child about five, were there. Witness procured a light from the kitchen, and on her return, saw the man still sitting on the sofa. It was the prisoner at the bar. She had known him before. Had been the ferryman there. She had left a black gin in the house, about eight or nine years old, and she now asked this gin what was the matter. The gin replied that the prisoner had "mumculled" (beaten) the prosecutrix. Prisoner made no reply to this. Witness then went into the bed room, where she saw her daughter Mary Ann.

[The appearances described were of a shocking nature, and unfit for publication. The child said that "some one" had injured her, but did not state that it was in the manner laid in the indictment, nor did she then mention the prisoner's name.]

The prisoner said "well, well, what's the matter?" She got him then to go away from the house. About five minutes after the prisoner left the child mentioned a name.

[His HONOUR ruled that, under the circumstances, evidence of the name mentioned could not be given.]

Mr. Surplice and witness went for Dr. Palmer, who examined the child. Prisoner resided about twenty yards from witness, and, from his house could have seen her going out. He had been speaking to her some time before. Prisoner was a little intoxicated when she found him in her house.

[By the court.] Had no previous ill will against the prisoner. About three months before the occurrence prisoner had a quarrel with her little girl about a cat, and he said that he would be revenged on the girl. When he was intoxicated he used frequently to run after the child and catch her by the hand, but did not hurt her. Prisoner was unmarried. There were two other men---married persons---living at some greater distance from her house.

[Prisoner, in reply to the court, said that he had no questions to ask.]

Mary Ann Foster, an interesting and intelligent child in appearance, was then called, and underwent a long and searching examination from the Chief Justice with reference to her fitness to take an oath. The replies were given in a very satisfactory manner, and the witness was then sworn. It appeared from her evidence that on the night alluded to her mother went out, telling her to say her prayers and go to bed, which she did. Her little brother was asleep in the bed, and the young gin was in the next room. She had fallen asleep herself, when she was awakened.

[The witness proceeded to detail circumstances unfit for publication. From the position in which she found herself an inference might be drawn that a capital offence had been perpetrated. As regarded the question of identity her evidence was to the following purport]. The man by the bedside was the prisoner. She saw his face. He had on a pair of cord trousers and a blue shirt. She screamed, and he went away and sat on the sofa in next room. Had seen Wild that day dressed in cord trousers and blue shirt. The night was a little moonlight. Could see the man sitting on the sofa from the bed, and it was the prisoner. The black gin had heard him break open the door and come in.

[This last was not taken as evidence. The prisoner said that witness had stated to the magistrates that he had a white shirt on. The depositions were referred to, and no mention of the shirt was found. Witness continued.]

Did not remember saying that prisoner had a white shirt on.

Mrs. Foster being recalled stated that the night was a moonlight one. There were two windows in the bed room. Could not say whether there was light enough in the room to distinguish colours. A person on the bed could not see one on the sofa in the next room, without inclining the head. The bed hangings were white. Last witness had stated to the magistrates that prisoner had a white shirt on. It was sufficiently moonlight for witness to have seen any person running away from her house after she heard the scream. Did not see any person.

Mary Ann Foster recalled; Saw the prisoner through a wide crack in the slabs when he was sitting on the sofa.

William Henry Surplice, who had lived in Maryborough last August, corroborated Mrs. Foster's statement concerning the scream, and his hastening at her request to ascertain the cause. Found the candles out on his arrival, and saw a man sitting on the sofa. Went into the bed room, and prosecutrix took hold of him and begged him not to leave her as a man had been in the room. She did not then mention his name. When Mrs. Foster arrived and a light was procured, he saw that the man sitting on the sofa was the prisoner. He had on a blue shirt and white cord trousers. Asked the prisoner what he was doing there. He did not give an answer to that, but got up, and afterwards said "what's the matter." Mrs. Foster went into the bed room, and returned saying "Wild, you have ruined my child." Prisoner said very little, but denied that he had done anything of the kind. He walked away and witness followed him to his own house, where he asked if anybody else had been in the hut with him, and he said no. The reason witness did not go for the constables was that he thought it would be best to leave the matter to the girls mother and the surgeon.

Edward C. Palmer, surgeon, deposed to the injuries received by the prosecutrix, which were such as would have arisen from the commission of a capital offence. But the injuries might have been inflicted otherwise. Did not examine prisoner until next night, when nothing suspicious was discovered.

The prisoner declined making any defence, and his Honour proceeded to charge the jury, urging them to dismiss all consideration of consequences to the prisoner, and decide according to the evidence. After dwelling rather strongly upon the possibility that an attempt might have been made without a capital offence being committed, his Honour left the case to the jury, who, after retiring for deliberation, brought in a verdict of guilty. The prisoner here mentioned the names of two men who, he said, could give evidence in his favour.

The learned CHIEF JUSTICE, in proceeding to pass sentence, referred to the patient investigation which this case had received, and his own satisfaction with the result of the jury's deliberation. His Honour then referred to the penalty incurred, and expressed his concurrence in the opinion of the legislature which had retained the punishment of death for that crime, since it had increased threefold in England since the capital penalty was abolished there, where vigilant police and the absence of a criminal population made the chances of such crimes the less. He therefore was determined to carry out the law, when it fell to his painful task to do so. The prisoner had mentioned two names, and inquiry should be made. If by that means such evidence---good and creditable evidence---could be procured, as would change the strong bearing of the present evidence against the prisoner, it might be that some hope might exist of an alleviation of the penalty. But the prisoner himself must know whether such evidence was to be had, and, seeing that after this long time had elapsed it had not been brought forward, he solemnly warned him to prepare for another world, for beyond any hope that he might gather from a circumstance of that kind, there was not the slightest reason to anticipate that his life would be spared. His Honour then passed sentence of death in the usual form, to be carried into execution on such day as his Excellency should appoint. The prisoner, who only seemed to show any anxiety towards the conclusion of the trial, was then removed.

Note

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

Published by the Division of Law, Macquarie University