[rape]

R. v. Owens

Court of Criminal Jurisdiction

Dore J.A.., 31 May 1799

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1798 - 1800, State Records N.S.W, X905 – 221

            [221] At the Court of Criminal Judicature: holden at the Court house Sydney on Friday the 31st day of May 1799

            Present:

The Judge Advocate

Lieutenant William Kent

Lieutenant John Shortland

Lieutenant Matthew Flinders

Captain John McArthur

Lieut James Hunt Lucas

Qual Mshll Thomas Laycock

            In consequence of the indisposition of Lieutenant Kent, Lieutenant Thomas Hobby of the New South Wales Corps was substituted in his stead and took his seat accordingly.

            The Precept being read and the Court duly sworn

            The following Prisoners were placed at the Bar and severally arraigned.

            John Owens to his Indictment for a Rape ….. pleaded “Not Guilty”

            Mary Frost, otherwise Mary Peck being duly sworn Deposeth that last Wednesday week she was going from Toongabbie to the Hawkesbury when the Prisoner overtook her about a mile beyond Toongabbie and asked her if she was going to the Hawkesbury; and on the Road the Prisoner asked her if she would give him a stroke. That she answered him no, whereupon he struck her a Blow on the side of her head with his Fist and knocked her down. That she then got up again when the Prisoner dragged her into the Bushes and on her attempting to call out the Prisoner clapped his Hand over her mouth to prevent her. That the prisoner pulled her Legs from under her. That having an infant child in her arms the Prisoner forced the Child from her and threw it on the ground. That having gotten her on the ground the prisoner put his private parts into her Body by force and against her will did lavish and carnally know her. That she entreated the Prisoner not to use violence with her, but he persisted and gained his Ends. That after he had so done the Prisoner took a Key from his Pocket and wanted her to swear she would never speak of what had passed, where upon she said she would not under the apprehension that if he would ill use her if she did not answer him to that effect. That the Prisoner then parted from her and returned towards Toongabbie, whither she would also have [422] returned, but shewing the Prisoner behind a Tree she was afraid and went on her way to the Hawkesbury when she overtook the Cart of John Stodgell whose two servants she acquainted with her having been ill used by a Soldier on the Road.

            Prisoner had no Questions to put to this witness.

            Charles Windsor, Corporal New South Wales Corps being sworn, Deposeth that he was on duty at Toongabbie on the day above stated and the Prisoner was absent on Wednesday Sennight from his quarters from daylight until the hour of Eleven in the Forenoon. That on Saturday last the Prosecutrix applied to this witness and related to him that the Prisoner had ravaged her on the day he alluded to, who thereupon told the Prisoner that he had done a pretty job. That the Prisoner made no Reply, but looked confused. That the witness ordered the Prisoner to be confined.

            Prisoner had no Questions to put to this Witness.

            Joshua Peck, being duly sworn, Deposeth that the Prosecutrix is his lawful wife and that he was married to her by the Rev Mr Johnson about 8 Years since. On being interrogated as to the Fidelity she had shewn towards his Bed he answers that about two Years ago he had Cause to complain of her Incontinence, but forgave it. That he has five children by her born in wedlock and that they live together on Terms of Conjugal Affection. Being asked if he had any acquaintance with the Prisoner answers that he had been twice at his house with one of his Comrades from Toongabbie who had threshed Corn for the witness, but that his wife was not at home either of the times. Further says he is certain that his wife never spoke to the Prisoner before the fact took place with which he is charged.

            Question proposed by the Prisoner to the witness.

            Has not your wife being on board of the Reliance for the space of nine days within the three weeks passed backwards and forwards.

            Answer: Not to my knowledge, but she has been at Sydney on business with my consent.

            Question: Has not your wife been on board the above ship keeping company with a sailor and said she has been down at Sydney on the present Prosecution.

            Answer: She has never been out of my Company since she came down Wednesday morn, except whilst I was attending the Civil Court on Business which was in the mornings during the sitting of the Court and I always found her, when I returned to my lodgings, there.

            Captain John Thomas Prentice. New South Wales Corps being duly sworn Deposeth that he was President of a Military Court Martial holden at Sydney on the Prisoner the 20th of March last when the Prisoner was found Guilty of unsoldier-like Behaviour when on duty and in which general accusation the charge of having Committed a Rape on the body of one Mary Butler was included. That the Prisoner was sentenced to receive 500 lashes (minutes of the Court Martial referred to and produced).

            There closed the Evidence for the Prosecution.

[223]                                                                Prisoners Defence

            Last Wednesday Sennight about seven or eight o’clock in the morning I was going from Toongabbie to the Hawkesbury and overtook the Prosecutrix. I offered her some Calico to lie with her. She agreed to it, but I refused afterwards to give her the Calico.

            John Carver called by the Prisoner Sworn.

            Question by the Court at the instance of the Prisoner

            Has not John Thistle, Seaman of the Reliance, slept with the wife of Joshua Peck at the house of Griffiths within these three weeks and by the knowledge of her husband.

            Answer: I cannot positively say within these three weeks, but that he has done, I know as to the knowledge of her husband I cannot answer to that.

            John Thistle called and sworn

            Question by the Prisoner

            Have you not slept with Pecks wife in the Course of these three weeks passed at Griffiths’s House on the Rocks.

            Answer: No. At no place whatever.

            Court being cleared after deliberating on the Evidence unanimously acquit the Prisoner from insufficiency of Proof.

            But at the same time observe that nothing could have saved the Prisoner from being adjudged guilty but the want of that corroborative Testimony which the Law requires to balance to the Character of the Prosecution which if it had been declared irreproachable would have inevitably tended to the Conviction of the Prisoner and of course to his Execution. The court hope that this narrow escape may be so far operate upon his mind as to prevent him from a Repetition of those heinous offences which there is too much at Reason to believe him addicted to.