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

R v Smith [1833] NSWSupC 84

rape - sexual assault on child - capital punishment - jury verdict, judge's doubts about  -  Forbes C.J., on judicial duty - trial by jury, doubtful verdict

Supreme Court of New South Wales

Burton J., 29 August 1833

Source: Sydney Herald, 2 September 1833[1 ]

Thursday. - Before Judge Burton and the usual Commissioner.

Hartley Smith was indicted for ravishing the person of Mary Ryan, an infant under the age of nine years, at Sydney, on the 16th August.

This case exhibited the depravity of human nature in its most appalling form.  It appeared that Mary Ryan, Harriet Morris, and Isabella Smith, a daughter of prisoner, all about the age of nine years, went to the prisoner's house on the afternoon of the day in question to play; while there, prisoner sent his daughter to her grand-mother, who lives at some distance; immediately on her leaving the house he locked the door of the room, and committed the offence on the children Ryan and Morris, and on their going away he offered the children money to say nothing about it, which they refused.  The Jury, after a consultation of about five minutes, returned a verdict of - Guilty.  The prisoner having been called up for judgment, the learned Judge addressed him most impressively, observing, that the offence of which he had been convicted was most dangerous to civilised society, but when committed on the person of a child it was of the worst description; if there was any difference in the commission of the offence upon a child or a full grown woman, it was assuredly greater on the child then on the woman, in consequence of their tender age and their inability to offer resistance: he had poisoned their minds, it was to be feared, for ever, and it would be fortunate for them if they ever forgot the vicious lesson he had taught them; if they did not, the fault would be his.  Public morals must be upheld, and a case like the present must be visited by the utmost penalty of the law, which was, that he should be taken from thence to the place from whence he came, from thence to the place of execution, there to be hanged by his neck until his body be dead.  After the sentence was passed the prisoner fainted away, and was obliged to be led down the streets to the gaol by two constables, amid the execrations of a multitude of persons.


Forbes C.J., Dowling and Burton JJ, 3 September 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266


[p. 150] Proof of extension of the vagina being entered & slight penetration of a child of [p. 151] 9 yrs - sufft to support a capital conviction.  I am of opinion that penetration has not taken place.  2.d Surgeon.

Case for Council.


Forbes C.J. to Burton J., 6 September 1833

Source: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2408, vol. 5, loose letter at beginning of volume


Mrs. Forbes is down stairs today - but looking very pale and feeble - God grant that she may recover with care and time, and be restored to us again.  I have, before now, felt the same painful anxiety that you do - and I look upon the Judge's duty to be clear, to pause in every case, where he has sufficient grounds for doubt - There has been no positive proof of penetration, and the witness was of sufficient age to have been able to describe the fact - the opinion of the Surgeon was founded in inference, the accuracy of which depends upon many concurring circumstances - the skill of the Surgeon - the accuracy of his examination - the justness of his conclusion, and that again depending upon whether such conclusion was an inevitable result, or whether a different conclusion might not be drawn from the same appearances - whether, in short, the conclusion might not be liable to errors.  Dr. Mitchell's evidence, as it is upon your notes, directly negatives the conclusion of Dr. Bloomfield[ 2] - now the act of Parlt. requires proof of penetration - and there must be such proof - has there been such in this case? -

The text books are silent as to the course a Judge is left to pursue, after verdict and judgment, to satisfy his conscience - the subject itself is too delicate and undefinable perhaps - I should therefore consult my judgment, feelings, and sound discretion how to act - and feeling not only a doubt, but thinking that such doubt might be either removed or confirmed by a careful enquiry, I should satisfy my scruples by adopting that course - if I examined the child, perhaps it would be better that both the mother and surgeon should be present, but without interference - and the Surgeon might then answer any further enquiries you might deem proper to make - I have candidly told you, what I would do - fiat justitia - and that at all hazard - I was too late for the post last evening - but I have communicated our sentiments to the Governor touching the subject of yesterday's conference by post today.



[1 ] See also Sydney Gazette, 31 August 1833. The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/24078, vol. 5, p. 87.  Burton's notes often gave the civil condition of the defendant, whether bond (convict) or free.  Smith was a ticket of leave holder.  The judge's notes state that Smith was charged with carnally knowing and abusing a female child under 10 years of age.

For other sexual assault cases heard at this time, see R. v. Black and others, 1833; R. v. Hawley, Coghlan and Brickfield, 28 August 1833 Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2408, vol. 5, p. 41; R. v. Hawley, Brickfield and Coglan, Sydney Herald, 2 September 1833.  In 1834, Paul Gillon was convicted of violating person of a girl under 12: Sydney Gazette, 13 November 1834.

[2 ] The notes of the trial judge show that both Bloomfield and Mitchell gave evidence.

Published by the Division of Law, Macquarie University