The pretense of a prosecution?

Research Brief 28

In 1900, Mary Ryan was living at North Pine, near Brisbane, with her five children. Her husband had not lived at home with the family for some four or five years. Early on the morning of 4 February 1900, Mary gave birth to her sixth child, a boy. On 17th February 1900, she was charged with the baby’s murder. The evidence of the children – the only witnesses – allowed what was otherwise a strong case for infanticide to go unpunished.

Upon attending the family home, Acting Sergeant Alexander Leslie talked to Mary and her three daughters, Bridget (13), Margaret (10) and Mary Jnr (8). There was evidence that Mary had said that the baby had been still born. Initially, at least, this was also the story that her three daughters told the Sergeant. They said that they had not seen or heard a baby. By the end of his interviews with the girls, however, all three had told him that they had in fact seen and heard a baby crying on the morning in question. With such statements in hand the police charged Mary with murder.

At Mary’s committal hearing, held in Brisbane on 23 and 24 February 1900, the girls gave the same accounts as they had previously given to the police. Bridget and Margaret told of having seen their mother carrying a crying baby wrapped in rags outside, where she had put it near a log in the backyard.

Mary Jnr gave further evidence. After seeing her mother leave the baby next to the log, the young girl had followed her mother to ask if she should bring the baby inside. But Mary Snr didn’t want the baby inside. Instead Mary had asked her daughter to get her a cup of tea. When Mary Jnr returned with the tea, her mother told her to get a fire stick from the kitchen fire and set fire to the rags outside.

Young Mary did as her mother instructed, thus starting the fire that would ultimately claim the life of her baby brother. After starting the fire she had gone back inside to again ask if she should bring the baby in. “No” said her mother. “Let it burn.” Based on their evidence of having heard and seen a live baby, Mary Snr was committed to stand trial for the baby’s murder.

The trial took place at Brisbane Supreme Court in early June 1900 before Justice Cooper. This time Bridget and Margaret both testified that they had not seen or heard a baby on the day in question, nor had they seen anyone put a baby on the log nor had they heard their mother say anything to Mary other than to ask for a cup of tea.

They both confirmed that since the committal they had been taken back to the house and had been shown that they could not possibly have seen what they said they had seen at the committal. In court, Margaret explained “it was storytelling…I was afraid I would go to gaol if I didn’t say it. Mother has always been good and kind to me.”

Having observed Margaret give her evidence, Justice Cooper said “all this really went to show that the evidence of the child was unreliable. Some children have fertile imaginations and imagine all kinds of things and then forget what they had said.”

In his notebook Justice Cooper noted that the child Mary ‘does not understand the nature of the oath and has not been taught about God or heaven or hell.’ He went on: ‘I am satisfied that the taking of an oath would have no binding effect on the conscience of the witness. Witness does not understand her liability to any punishment for untruthfulness.’ He refused to hear her testimony.

The prosecutor conceded that Mary’s testimony was ‘the last fragment of the evidence for the prosecution’ and he could take the case no further. Defence counsel, Mr Lukin, asked Justice Cooper to direct the jury that there was no evidence to convict the defendant. Mr Kingsbury agreed with his colleague’s request.

Justice Cooper turned to the jury and directed them to find the defendant not guilty on the basis that absolutely no evidence had been given that she had murdered her baby. Mary was acquitted and presumably went home with her children.

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Article from Queensland Figaro, 17 December 1903, 53.

As tragic – and horrific – as this case is, it tells us a lot about how children gave evidence in court in the early twentieth century and how their evidence was received. Reading between the lines, it appears that the trial was conducted with a very clear plan for achieving the outcome that it did.

On its own, Mary’s case raises serious questions about life and law at the turn of the twentieth century. Did the court or the crown want to avoid the risk of five children, one of whom had a disability, becoming a burden on the Salvation Army Home or other similar organisations? Were they cognisant of – and sympathetic to – the pressure Mary had been under to support the five children she had, let alone a sixth. Did they surmise that such pressure might drive a woman in that position to do what Mary had done?

There is a wealth of research on infanticide and cases like Mary’s certainly were not rare. On the Prosecution Project database there are already records of 127 cases of women being charged with murder in Queensland between 1863 and 1951. Many of these cases involved infanticide. Of this 127, only eight women were found guilty. The great majority of those charged with murder (99 of the 127 cases) were found not guilty or had their charges dismissed before going to trial or during the trial.

The shifts in the girls’ testimonies, and the way in which Mary Jnr’s testimony was not received suggest that Mary Snr’s trial was conducted with a view to obtaining an acquittal. It appears to have been a mere pretense of a prosecution. Were other cases against women or otherwise sympathetic defendants designed to provide a mere spectacle of justice? Perhaps in time, the collection and analysis of cases like Mary’s will help provide an answer.

Author: Robyn Blewer

To cite this research brief: Robyn Blewer, ‘The pretense of a prosecution?’ The Prosecution Project, Research Brief 28, (6 Apr 2017, viewed 7 April 2017).