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

R. v. Russel [1828] NSWSupC 1

attempted murder, domestic violence, married women's legal disabilities, evidence, spouse against spouse

Supreme Court of New South Wales

Stephen J., 4 February 1828

Source: Australian, 8 February 1828

The first trial called on was that of James Russel, who stood charged with violently assaulting Mary-  his wife, with intent to kill and murder her.[1 ]

The prisoner's wife was called to give evidence, but neglecting to appear, it was intimated in Court, that she was purposely keeping out of the way.

Joseph Smith was then sworn - Is a blacksmith by trade, and in the prisoner's service; recollects on the evening of the 10th of January last, his mistress leaving home, and staying out a considerable time; on her return the prisoner reproved her for going out without previously acquainting him with her intention; heard prisoner tell her. If she wanted to go out at any time, it should be with his knowledge, and then he would stay within to mind the house; prisoner said, if she (his wife) went out in future, without first acquainting him, it would cause a quarrel between them; saw mistress upon this, take her cap off her head, and throw it in a violent manner upon a side board, saying, "I have but one life to lose, and I don't care how soon that is gone."  Prisoner was eating his supper at the time; he had a large carving knife in his hand; witness during the whole of this conversation was sitting in the same room with them nursing a child; mistress ran against him, and witness being apprehensive that the child would be hurt, left that room, and went into the adjoining one; had his back towards the prisoner on leaving the room; did not see prisoner at all strike his wife; did not over-hear any conversation between them whilst in the other room; is conscious of being now on oath; never swore at the Police-office, that he saw mistress laying down, and prisoner standing by her; was a good deal alarmed in consequence of the child becoming hurt from mistress running against him; at that moment had seen prisoner running towards mistress with knife in his hand, but did not see him strike her with it; did not apprehend any violence from the prisoner's conduct just then.

Here the Attorney-General repeated several questions to the witness, and took down his answers in writing - having previously cautioned him to be careful of his words, as was it to be apprehended they would hereafter have to form the ground-work of a prosecution against him for perjury.

Examination continued - Swears that from the prisoner's manner, at the time, he did not appear to be violent.  Did not see the prisoner after his wife pushed witness down.  Was not alarmed at the prisoner's behaviour.  Did not swear this at the Police office.  Saw the prisoner advancing towards his wife, with the knife, in a pointed direction towards her, in his hand; and shortly after saw her laying on the bed.  Did not hear her speak to any one.  Did not hear her groan; but saw some stains of blood about the upper part of her dress.  Was told by Sutland (a constable), that he wanted to speak with the prisoner - and brought them together.  In about an hour and a half, from the period of the prisoner's wife's return home, saw a wound in her back.  She asked witness to put a blister on it.  She did not bleed at that time.  Does not know what occasioned the wound, or how it was done.  Mistress did not tell witness how she came by it.  Swears he did not see the wound inflicted.

Frances Sutland - I was a wardsman in the Sydney police in the middle of January last.  I recollect on or about the 18th of the month, some time in the evening part, Mrs. Russel (prisoner's wife) running into my house, which is convenient to her's, and, throwing herself into a chair, saying she had been hurt, or cut, or some such expression - cannot say which.  She appeared to be excessively faint.  It was some minutes before she was sufficiently recovered as to speak again.  She could not explain how the injury had been done.  Mrs. R at last said her husband and she had had some words together - but did not say he had stabbed her.  She was then cut in the back.

Dr. Bland stated, that he examined the prisoner's wife on the evening of the day laid in the indictment, and found a wound in the back of between three and four inches deep.  It was in an oblique direction, towards the left shoulder, near the shoulder-blade.  Thinks it was probable that the injury was occasioned by a large knife, and was done by a plunge.  If the knife had been sharp, it would not have required much force to do the injury.  The woman said it was done by her husband.  The prisoner, however, was not present when this statement was made by his wife.

The learned Judge summed up the case, putting it to the Jury as one, for which there was no sufficient evidence to warrant the them [sic] in finding a conviction.  There had been no evidence whatever to prove that the prisoner was the person who committed the assault, the subject of this prosecution, although there was strong presumption that he was the guilty one.  The most material evidence in the case, was that of the servant, who stated he only heard a quarrel, and had sworn most positively, that he did not see the commission of the injury complained of.  There was one person - that was the wife of the prisoner - whom the law shut out from giving evidence against her husband - and under such circumstances, the Jury would have to acquit him.  Not Guilty.

Before being discharged, by proclamation, the Judge admonished the prisoner, recommending him to be more circumspect in future.[2 ]


[1 ] See also Sydney Gazette, 8 February 1828.

[2 ] See also R. v. Chamberlain, reported in Sydney Gazette, 4 February 1832 and Australian, 10 February 1832, another unsuccessful prosecution for assault with intent to murder.  Justice Stephen directed the jury that if death had ensued, it would not have been murder.  As a result, the prosecution had to fail.  See also R. v. Yates and Jones, reported in the same newspapers on the same day.

Published by the Division of Law, Macquarie University