The Maitland Mercury and Hunter River General Advertiser, Sat 22 Apr 1871 1
MAITLAND CIRCUIT COURT.
This Court opened at the East Maitland Court-house yesterday, before his Honor Sir Alfred Stephen (Chief Justice). Mr Windeyer (Solicitor-General), instructed by Mr Charles Lett, for the Crown Solicitor, prosecuted for the Crown. Mr James Smith (Police Magistrate) acted as deputy for the Sheriff. The barristers present were Messrs. Darley and Wisdom.
The Court was opened, as usual, by the reading of the proclamation against vice and immorality, by the Judge’s Associate.
~ ~ ~ ~ ~
Evening News, Mon 24 Apr 1871 2
TELEGRAPHIC MESSAGES.
———•———
…
MAITLAND.
Saturday.
At the circuit court to-day, James Monahan, for indecent assault, was sentenced to three years on the roads; Joseph Margin, for indecent assault, two years hard labour, and to find sureties for good behaviour at the end of that time.—Herald.
~ ~ ~ ~ ~
The Maitland Mercury and Hunter River General Advertiser, Tue 25 Apr 1871 3
MAITLAND CIRCUIT COURT.
This Court re-opened on Saturday morning, before his Honor Sir Alfred Stephen.
…
ASSAULT WITH THE INTENT TO COMMIT A RAPE.
Joseph Margin, on bail, was indicted for having, at Wybong Creek, on the 26th October last, assaulted Elizabeth Skay with intent to commit a rape. A second count charged him with indecent assault. Prisoner pleaded not guilty. He was defended by Mr Wisdom, instructed by Mr RW Thompson.
The witnesses for the Crown were Senior-sergeant Oliver Hinde, and Elizabeth Skay.
Sergeant Hinde deposed to having arrested the prisoner at Scone on the 1st November last. Prisoner said “I did nothing but ask her, and I got nothing; I only put my hand upon her shoulder.”
Elizabeth Skay deposed that she was a married woman, and lived with her husband, Thomas Skay, a shepherd, at Wybong Creek, in the employ of Mr MacIntyre; she was the mother of four children. The witness then proceeded to describe the circumstances out of which the present charge arose, as follows: – on the day named in the indictment, about sundown, she was going homewards, along a beaten path in the bush, and had arrived within sight of her hut, which was then about a quarter of a mile distant, when she met the prisoner coming towards her on horseback. She had known prisoner ever since they were children, and he was employed on the neighbouring station, belonging to Mr Bell, where the parents of witness also were employed. Prisoner said to her,“You have dropped your bonnet,” which was the fact, as she had just been running away from some cattle. Prisoner dismounted and brought the bonnet to her, saying “Now you must give me something.” He had on three or four previous occasions made improper overtures to her in the same terms, but had desisted upon being refused by her. Witness again refused, and prisoner said he would compel her. Prisoner then caught hold of her and threw her down; he fell down with her on his elbow, and he held both her hands with his two hands over her head. In falling the clothes of witness were tilted up, as she wore a crinoline; prisoner did not unfasten his dress, but witness saw that he was exposed, as his clothes were torn. Prisoner then released one of her hands and tried to effect his purpose, but as soon as he let go witness commenced to push him off. After a struggle prisoner let go, and they both got up. Prisoner said it was nothing, and he would not have asked her only she had allowed others, and he threatened to tell her husband that she had been improperly intimate with a man named Jack Marsland. Witness replied that she would tell her husband of prisoner’s conduct. He answered that he didn’t care, as he was going up the country. Witness emphatically denied that there was any truth in the accusations made by the prisoner; she told her husband what had occurred on the following day as soon as he came home.
In cross-examination by Mr Wisdom witness said that when the prisoner insulted her before, it was only in words. One occasion was when she was stopping at her mother’s place, when her father and mother were both away. Prisoner then slept in the next room with her brother, aged about thirteen. There was no door to the bed-room where she slept; prisoner asked her for something, and she refused. She told her father when he returned next day, and he said he would speak to prisoner about it, but it passed over; that occurred about two years ago. On other occasions prisoner came to her house when her husband was away and made improper solicitations, but she always refused.
Mr Wisdom, in addressing the jury for the defence, said that before they could find the prisoner guilty of an assault with intent to commit a rape they must be satisfied that he intended to do so at all risks and hazards, and notwithstanding any resistance on the part of the woman. It was evident, even from the prosecutrix herself, that such could not have been the prisoner’s intention, since he desisted as soon as she offered resistance. There was no-one there, and nothing to prevent him, if his intention had been to commit a rape at all risks and hazards, but they were told that he desisted of himself. The principal charge thus fell to the ground, for they were bound to judge of a man’s intentions from his acts. With regard to the second count, no doubt if they believed the woman’s story they must find the prisoner guilty, but they must remember that her story was entirely without corroboration, and the circumstances detailed by the prosecutrix threw great suspicion upon the case. He referred to the previous overtures alleged to be made, and argued that if prosecutrix had been all that she ought to have been, she would have avoided the prisoner; she would not have been content with telling her father, she would have told her natural protector – her husband. And it was a remarkable fact that they should bear in mind, that she never attempted to tell her husband until prisoner threatened he would tell her husband of her conduct; and then, in self-defence, she did tell him, and brought this charge. He thought this was a case in which there was very great doubt, and therefore the prisoner should have the benefit of the doubt.
His Honor, in his charge to the jury, remarked that in his recent journey from Armidale he had met with at least a dozen young women riding in the bush, and he could not help thinking what a very dangerous thing it was. He did not mean to say that this country was worse than any other, for he knew that some very dreadful crimes were committed in the old country; but it was quite plain that acts of very great violence committed on women did exist here. Now, suppose any one of those young women whom he met on his journey were stopped by some fellow in the bush and ravished, what evidence could the woman offer more than her own testimony? Were they to remain unprotected, then, when from the nature of the crime it was almost impossible that the woman could produce any evidence of the fact but her own? The question for the jury, then, was, whether all the evidence had been given that could fairly be given? If the story of the prosecutrix was not true, what could have tempted her to make such a charge? The man himself admitted that he had made her an offer, but he said she refused, and that was all. He showed no reason why she should turn upon him. She said he had made her an offer several times, but as he did not put his hand on her she passed it off. Was her story unlikely? If they did not believe her it would be better to stop young women from riding through the bush alone; if such stories were to be disbelieved then no woman was safe. It was put to them that this occurred on the public road, but there were two remarkably flagrant cases of women being ravished on a public road, one of which had been tried before himself in that very court. If they were of opinion that the prisoner attempted a rape they would find him guilty altogether. With reference to what had been said that it was necessary she should show that she had resisted to the uttermost, he knew that such had been laid down by one eminent English judge; he did not wish to set himself in opposition to such an authority, but he did not believe that it was the law, because in that case unless a woman resisted to the very death a rape could not be committed at all. He was of opinion, and he believed that it had been laid down by the full court here, that it was sufficient for a woman to do her best. He did deny, and he solemnly denied, that it was necessary for her to resist to the death, and to exasperate a man so that he would violate her first and murder her afterwards. They must be of opinion that there was such a degree of resistance that prevented him from effecting his purpose, and they must be of opinion that he intended to force her to submit.
After rather less than half-an-hour’s deliberation the jury found the prisoner guilty on the second count – that of committing an indecent assault.
The prisoner was sentenced to be imprisoned with hard labour for two years, and at the expiration of that time to find sureties to keep the peace for a further period of twelve months, himself in £80, and two sureties of £40 each.
The court then adjourned until Monday morning.
~ ~ ~ ~ ~
Empire, Wed 26 Apr 1871 4
MAITLAND CIRCUIT COURT.
————
(Before his Honor Sir Alfred Stephen.)
…
ASSAULT WITH INTENT TO COMMIT A RAPE.
Joseph Margin, on bail, was indicted for having, at Wybong Creek, on the 26th October last, assaulted Elizabeth Skay, with intent to commit a rape. A second count charged him with indecent assault.
Elizabeth Skay deposed that she was a married woman, and lived with her husband, Thomas Skay, a shepherd, at Wybong Creek, in the employ of Mr McIntyre. She was the mother of four children. On the day named in the indictment, about sundown, she was going homewards, along a beaten path in the bush, and had arrived within sight of her hut, which was then about a quarter of a mile distant, when she met the prisoner coming towards her on horseback. She had known prisoner ever since they were children, and he was employed on the neighbouring station, belonging to Mr Bell, where the parents of witness also were employed. Prisoner said to her, “You have dropped your bonnet,” which was a fact, as she had just been running away from some cattle. Prosecutrix here related the circumstances of the assault, and swore that the prisoner had on previous occasions assaulted her.
His Honor, in his charge to the jury, remarked that in his recent journey from Armidale he had met with at least a dozen young women riding in the bush, and he could not help thinking what a very dangerous thing it was. He did not mean to say that this country was worse than any other, for he knew that some very dreadful crimes were committed in the old country; but it was quite plain that acts of very great violence committed on women did exist here. Now, suppose any one of those young women whom he met on his journey was stopped by some fellow in the bush and ravished, what evidence could the woman offer more than her own testimony? Were they to remain unprotected, then, when from the nature of the crime it was almost impossible that the woman could produce any evidence of the fact but her own? The question for the jury, then, was, whether all the evidence had been given that could fairly be given?
After rather less than half-an-hour’s deliberation the jury found the prisoner guilty on the second count—that of committing an indecent assault.
The prisoner was sentenced to be imprisoned with hard labour for two years, and at the expiration of that time to find sureties to keep the peace for a further period of twelve months, himself in L80, and two sureties of L40 each.
1 The Maitland Mercury and Hunter River General Advertiser, Sat 22 Apr 1871, p. 2.
2 Evening News, (Sydney, NSW), Mon 24 Apr 1871, p. 2. Emphasis added.
3 The Maitland Mercury and Hunter River General Advertiser, Tue 25 Apr 1871, p. 2. Emphasis added.
4 Empire, Wed 26 Apr 1871, p. 3. Emphasis added.