[rape – jury, disagreement – jury, discharge of]

R. v. Butterfield

Supreme Court of Van Diemen's Land

Montagu J., 21, 23 October 1843

Source: Hobart Town Advertiser, 24 October 1843[1]

            James Butterfield was indicted for having committed a rape on the person of Sarah McHugh, on the 15th September last, near the Woolpack Inn, district of Hamilton.

            The trial occupied nearly the whole day; but the details are unfit for publication. The husband of the prosecutrix had left home to attend a ticket-of-leave muster; and, in his absence, the prisoner, and a man of the name of Ball, went to the hut, taking with them some rum, of which the woman partook. Ball soon after went away, when the prisoner completed the offence, inflicting several wounds, and otherwise using personal violence.

            The husband of the woman stated that on his return from muster at Hamilton, he found his wife lying on the bed, covered with blood. She was sober both when he went out, and when he returned. She stated to him the particulars of the outrage.

            Dr. Sharland, who had previously given his testimony, on being recalled by the judge, stated there were abrasures of the skin, but no wounds sufficient to cause a flow of blood from the face; one blow might have caused all the bruises on the face.

His Honor, in summing up, remarked upon the discrepancies in the evidence, and observed that the woman’s testimony was consistent in itself, if that of Ball was omitted. She had, however, not told her husband when he first came home, but at four o’clock in the morning.

The jury, after being locked up until about nine o’clock in the evening, informed the court that they were not likely to agree. They were then, with the usual restrictions, except “necessary refreshment,” accompanied by the proper officers of the court to the Macquarie, where they remained until yesterday morning, without agreeing on their verdict.

Monday, October 23

            The jurors who had been confined in Butterfield’s case since Saturday evening, were accompanied to the court, and on taking their places in the jury box, answered to their names as follows:

            Mr. Davis, foreman; and Messrs. E. Bailey, D. Lord, Salmon, Tilley, Wilson, Turner, Dowson, Seal, Dixon, Hodgson, and James Priest.

            The foreman, in reply to a question, informed his Honor that they could not agree. His Honor said he did not feel authorised to discharge them; and must direct them to retire again, and come to some conclusion. They were then locked up in the jury room.

            About twelve o’clock they returned into court, when the foreman inquired of his Honor whether they could find a verdict if they left entirely out of consideration the evidence of the witness Ball.

            His Honor said, in some cases, such as high treason, it was necessary to have the evidence of two or more witnesses, but in the present case, which had engaged their anxious consideration for so long a time, they might find a verdict on any testimony which had been adduced, provided they were all satisfied, and agreed to come to one conclusion.

DISCHARGE OF THE JURY

            At nearly six o’clock in the evening, when the business of the day had closed, his Honor sent for the jury, and requested to know whether they had agreed upon their verdict. The foreman informed the Court that there was no possibility of their coming to an unanimous conclusion. One gentleman (we believe Mr. Priest) observed that he, for one, would much rather remain in the jury room of the court, than be sent back to the Macquarie, where some could be accommodated with good beds, while he had slept for two nights on hard boards. Two or three other gentlemen coincided; but the opinion on this point did not seem to be unanimous. The jury then retired, to decide by vote, whether they would spend the night in the jury room (where all would be treated alike), or be once more conducted to the Macquarie. On their return the learned judge (after a discussion on the subject with the Solicitor General) said, he had not the power of discharging them, unless they came to a verdict, without the consent of the prisoner. He certainly had no right to inquire of the jury respecting the grounds of difference of opinion; nor, if he did so inquire, were the jury bound to answer him.

His Honor was then informed that eleven were unanimous in returning a verdict of acquittal; but that Mr. Hodgson (who had expressed a wish to return to the Macquarie) stood out.

His Honor then informed the prisoner that if he consented to discharge the jury, he would be remanded to the gaol, and might be again put upon his trial; but, if he did so consent, himself and the Solicitor General would recommend a free pardon.

This was cheerfully acceded to by the prisoner.