RESIDENT MAGISTRATE'S COURT.

New Zealand Mail, Issue 106, 15 February 1873, Page 4

RESIDENT MAGISTRATE'S COURT.

Friday, February 7th. (Before J. C. Crawford, Esq., R.M.) RAPE ON A LUNATIC.

William Stewart appeared on remand on the charge of having committed a rape upon the person of Rebecca Parnell, in the Lunatic Asylum at Karori. Mr Izard prosecuted, and Mr J. G. Allan appeared for the defence. The following evidence was taken :

Charles France, medical attendant to the Karori Asylum, deposed : I have been attending on the asylum upwards of ten years. At the beginning of last year the only male persons officially employed at the asylum Avere —William Sutherland (master), two assistants, William Sewell and William Stewart (the prisoner), and a cook named Michael O'Leary. All remained up till the 14th May, when Mr Sutherland left. Rebecca Parnell was then an inmate of the asylum, and had been so for sixteen years. She has always been in a state of unconscious lunacy or intermittent mania. She was liable to violent paroxysms at short intervals ; and I can't say that I ever found her lucid. She appears to be about forty-three years of age. She was kept locked up in one particular room, except occasionally when she was removed to a small room ; but she was always locked up. Whenever I visited the patient Sutherland accompanied me, and after he left, Mrs Seager did so. I always found the patient locked up except tinder the present management, which allows the patients as much liberty as possible ; but even now she is always under surveillance. About November my attention was called to the state of the patient by the present matron, but I could not approach her for the purpose of examination for several visits. The patient was too violent. I succeeded at length in making a partial examination, but could get no evidence of her pregnancy on account of her restlessness. On the 17th of last month I was summoned to the asylum. I found Rebecca Parnell in bed ill, and saw indications of recent delivery. Mrs Seager showed me the child (a male) in the presence of her husband. The child weiged 91b. The usual weight of a newly born child is 6Jibs. The child showed every signs of being a nine months' child. The period is generally laid down at between 266 and 268 days. As far as I know, Mr Sutherland usually kept the key of the room in which Parnell was confined. I attended I recollect an investigation made on the 25th April, when Sutherland, Sewell and O'Leary attended at the Resident Magistrates' Court. The prisoner was not here on that occasion. Rebecca Parnell is not in a state of mind to give rational evidence. By Mr Allan : I generally visit the Asylum three or four days a week. This patient is very clean. Water is given to her, and the matron tells me she is very particular in washing herself. I have reason to believe this as the patient is not a dirty woman. The sexual passions are generally much developed in flunatics ; both male and female are very erotic. They show a strong tendency to gratify their passions. Re-examined by Mr Pharazyn : Since the advent of the present master and matron, I have"seen Parnell in the general sitting room for the patients, but she may be considered constantly violent. Three days before her confinement she tore off every shred of clothing, and three days after delivery she was dancing and jumping about in violent paroxyisms. By the Court : The patients make use of very abusive and violent language at times. She is in factthe most dangerous lunatic in the Asylum. She suffers from delusions.

Henry Fowles Seager deposed : I am master of the Karori Lunatic Asylum, and have been since the 13th May, 1872. The staff when I went to the Asylum was composed of Miss Macdonald, Steward, Sewell, and O'Leary the cook. Stewart left the Asylum the latter end of August. He was an attendant up to that time. His duties were to attend chiefly upon the male patients ; but when the female patients were violent he was sometimes employed to attend upon them. When I went to the Asylum Parnell was kept in a back room, but we removed her into a front room with the view of improving her position. During her lucid intervals we allowed her out into the dayroom, but always under strict watch. For three weeks after I first Went to the Asylum Parnell was kept in strict seclusion. The matron and Miss Macdonald had free access to her, and sometimes Stewart and myself attended on her with her meals. The keys were always in charge of a female attendant during the daytime. I kept them at night. Rebecca Parnell was confined on the morning of the 17th January at about half-past seven o'clock. I saw the child in the bed and other indications to satisfy me that the patient had been delivered that morning. I had previously noticed the increase in her size. She was very violent the day before her confinement and almost immediately afterwards. Shortly after I went to the Asylum (I cannot specify the I stood upon the verandah with Stewart. Parnell's cell had a window

opening upon the verandah. [At this stage of the proceedings Mr Izard proceeded to elicit a remark made by Parnell to witness in the presence of prisoner, but Mr Allan objected to such a statement being admissable. A long argument ensued in the course of which several authorities were cited ; but the objections raised by Mr" Allan were overruled by the Resident Magistrate.] It was in the latter end of June. Parnell looked at Stewart very angrily and said to me, "If you think you are coming in to*do what that ■■ did, you ai*e mistaken." She then accused Stewart, in the coarsest terms, of having violated her person. I said to Stewart, " She gives you a good character, at all events." He turned very red in the face and walked away. By Mr Allen : During the first three weeks I was at the Asylum no man could have access to Rebecca Parnell without the connivance of the female attendants. During the first month two idiot men occupied a portion of the women's department, both being locked up. in one room at night. When Parnell accused Stewart, I did not report the circumstance because I thought it scarcely right to attach much importance to the remarks of a confirmed lunatic. From what the medical attendant had told us, we were in hopes that the patient was not pregnant. By Mr Izard : The idiots referred to were confined in a separate place altogether, though belonging to the women's department. There is a gate between the male and female patients, and there could be no intercourse between them unless the gate was opened. A short adjournment having taken place after the examination of the last witness, Mr Allan asked, upon the Court resuming, how for his learned friend intended to take the case ; then

Mr Izard detailed how he proposed to establish his case. Although he could adduce no direct proof,'he proposed to so exhaust the possibility of Seager, Sutherland, Sewell, or any other person at the Asylum except the prisoner having committed the crime, and to demonstrate inferentially that he alone must be the guilty person. Mr Izard then admitted that the ground work upon which the prosecution had to proceed was not so firm as he had at first thought. He had discovered two cases somewhat similar to the one before the Court, and he thought the judgments conclusive, until he had been made acquainted with a still later case, which led to an entirely opposite conclusion. The earlier cases he referred to were the case Regina v Fletcher (Bell's Crown Cases), and Regina v. Camplin. In these cases it was maintained that the guilty person could not be absolved on the plea of the other being a consenting party, or at least offering no resistance, so long as that person was incapable of giving consent through idiot 3y or lunacy, or rendered insensible from any cause. In the third case, however, which was tried in 1866, in which a rape had been committed upon an idiot girl, the prisoner pleaded that the girl gave consent, and a full bench of judges held that no rape had been committed. However, in a doubtful case like this, wh re the man might or might not be guilty, he thought the case ought to be referred to a higher tribunal. His Worship said the present case and the last one differed in this respect, that the offence was against a lunatic in one case and an idiot in the other. The great principle of the law of rape, however, was embraced in the idea that it must be against a woman's wishes or without her consent ; and the great difficulty in the present case was that they were precluded from taking necessary evidence, that of the woman Parnell being out of the question. The law, however, eviddently did not seem to provide for the case of lunatics in cases of rape, though a special statute existed which made it penal to have connexion with a child under ten years of age. As there was no evidence before the Court upon which Stewart could be charged with rape, he would dismiss the case. The prisoner was then discharged.