Thursday, July 25, 2013

A Capital Offence or Not

In early 1849, the Moreton Bay Courier reported that a local woman had told the police that she had been robbed and assaulted by a German man.

Robbery and Violence - On Saturday evening last, an elderly woman, named Mary Evans, made an application to the police authorities under the following circumstances:- It appeared from her statement that, on that afternoon, a man named Charles Bittner, a German, and who was formerly in the employment of Mr. Coutts, asked her if she wished for an engagement as a servant; she replied in the affirmative; and it was arranged that she should go out with Bittner at once to the German's village, near Eagle Farm, where he told her she was to live.

The woman accompanied him for about five miles out of town, when she told him that he must be going the wrong way. Thereupon he stopped her and demanded her money and a watch that she had upon her person. She gave him the watch, and £2 in cash; and he then assaulted he, and committed a capital offence.[1]

Buildings on the banks of the Brisbane River ca. 1840s
State Library of Queensland

At the time, the term “capital offence” was used as a euphemism for rape. A warrant was duly issue for Bittner’s arrest but the police were unable to locate the alleged offender and the reporter for the Moreton Bay Courier had little confidence in the constables.

These statements having been sworn to, a warrant, under the hand of Dr. Ballow, was issued for the apprehension of Bittner; but at present the constables have not been able to effect its execution. The officers, however, have traced the offender, as they believe, for a part of the route taken by him, and it is to be hoped that he will shortly be taken. It appears that, on the same evening, the vagabond attempted to commit a similar offence at South Brisbane.

If this fellow is not in the lockup within a fortnight, the police of the district is not worth much.[2]

South Brisbane  ca. 1870
State Library of Queensland
It was later reported that Bittner had stolen a horse and left town.  It would be another month before he would be heard of again.

ROBBERY AND VIOLENCE -The man Bittner, named in. our paragraph under the above head last week, is believed to have robbed Mr. John Orr, of South Brisbane, of a horse, before he left the town. From the description given of a horse and rider seen on the road, there is but little doubt of the justice of this suspicion.

Warrants have been despatched to the various police benches in the supposed line of his route, and it is much to be hoped that some constable will prove the value of the police corps, by handing this offender over to justice.[3]

News finally reached Brisbane that Bittner had managed to make it as far south at the Clarence River before he was detained.

Police.-The man "Bittner," against whom warrants are out for highway robbery, horse stealing, and rape, has been taken on the Clarence River[4], and forwarded to Sydney, whence he was remanded to the Brisbane Bench. He has not yet been received into custody here.[5]

Queen Street, Brisbane, ca. 1859
State Library of Queensland
Returned to Brisbane and placed in the police lock-up, the prisoner began to suffer a series of epileptic fits. Brought before the Bench, Bittner denied the charge suggesting that Mary Evans was a “woman of bad character”,a euphemism for a prostitute.

It was during the delivery of this evidence that the prisoner was seized with the fit. He had previously stated, in defence, that the prosecutrix is a woman of bad character, and had consented. He altogether denied the robbery. Upon inquiry at the Hospital we learn that the epileptic attacks continued to be experienced by the prisoner yesterday.[6]

The prisoner was ordered to face trial in Sydney as cases involving capital crimes could not heard in Brisbane. The report in the Moreton Bay Courier made particular mention of the complainant’s lack of sobriety and questionable character which would be an issue in the coming trial.

THE PRISONER BITTNER - This man was brought up, according to remand, on Saturday last. The prosecutrix was re-examined more particularly as to the charge of rape, which she most distinctly swore to. The prisoner was then committed to take his trial, and was forwarded to Sydney in the Swift. The prosecutrix was seen drunk in the streets upon several occasions during the progress of the inquiry, and she certainly did not seem to be sober when she gave her additional evidence on Saturday last.[7]

Corner of George and Hunter Streets, Sydney ca. 1849  by Andrew Torning
State Library of New South Wales
The case was finally heard in the Central Criminal Court in Sydney on June 5, 1849. Little was heard about the character and background of Bittner other than that he was a German and had turned up at the German Settlement[8] in Brisbane looking for work. He must have come from Sydney because there was no direct immigration from Germany to Moreton Bay until 1955. The Reverend Haussman gave evidence of the arrival of the mysterious Bittner.

John Godfreyd Haussman deposed hat he resided at the German settlement, about seven miles from Moreton Bay; the prisoner came to him in January last, and wanted employment; he suffered him to remain at his station until he got an engagement; about a fortnight afterwards, he said he had entered into an agreement with his former master, but would not go for a fortnight.

On a Wednesday or Thursday about the middle of February, and before the expiration of the second fortnight, he went away early in the morning, without saying anything, and about ten at night of the same day, some constables came in search of him; witness did not know of prisoner having a wife and family; he had told him that he had neither.[9]

The defence relied on questioning the reliability of the complainant, Mary Evans and as was the practice of the time, raised the issue of her moral reputation.

The prosecutrix was cross-examined at considerable length by Mr. Holroyd, but she adhered strictly to her statements as to the circumstances of violence in the prisoner's conduct; she admitted that she had lived for a short time in a house of ill fame, at Brisbane, but declared that she had left it the moment she had ascertained its character; had never, she said, been married, and the wedding ring which she wore was given to her by a female.[10]

James Meadows, in whose house Mary Evans was staying in Brisbane, was called to confirm her evidence, which he did. But under cross-examination he admitted that Evans “had the character of a prostitute” leaving the question of whether she worked as a prostitute unanswered.

James Meadows confirmed the testimony of the prosecutrix as to her hiring with the prisoner, and the false representation of the latter; witness heard of the circumstances of prosecutrix's complaint from his wife during the same evening, and saw her next day at Bruce's; prosecutrix was then much bruised and injured.

On cross-examination by Mr. HOLROYD, the witness said the prosecutrix had been a teetotaller until she went to Bruce's; that she there conducted herself respectably in her service; since the present transaction had seen her twice or thrice in a state of intoxication; she had the character of a prostitute.[11]

Central Criminal Court, Sydney 1888
State Library of Victoria
The defence summed up the case as expected, highlighting the unreliability of the complainant evidence and of her questionable character. The jury were quick to deliver their verdict.

Mr. Holroyd addressed the Jury for the defence, commenting at considerable length upon the contradiction in the evidence as given by tho prosecutrix at the Police Office, and as given here to-day, and upon the extreme improbability of certain circumstances which she had detailed, as those under which   the offence was alleged to have been committed; from which he was sure they would be convinced in their consciences that the charge was nothing better than a trumped up affair.

Taking these circumstances, to which he had drawn their attention, and the character of the woman into consideration, he was sure the Jury would not place so much confidence in her statement as to commit the prisoner.

His Honour having briefly summed up, the Jury retired for about a quarter of an hour, when they returned with a verdict of not guilty.[12]

His Honour expressed his acquiescence with the finding of the Jury, but should hold the prisoner to bail, on his own recognisance, to appear on Saturday next. He should be put on his trial for the alleged robbery; if acquitted on that charge, public justice would demand the prosecution of this prosecutrix for wilful and corrupt perjury.

The verdict reflects the mores of the times and the way in which the “reputation” of a woman would overtly dictate the manner in which she was treated by the legal system.

The judge’s threat that Mary Evans would face a charge of perjury if Bittner was also acquitted of the robbery charge, might be the reason that there were no reports in the press of that trial. Perhaps she decided to drop the charges given her experience in the rape trial.

© K. C. Sbeghen, 2013.

[1] The Moreton Bay Courier Saturday 10 February 1849
[2] The Moreton Bay Courier Saturday 10 February 1849
[3] The Moreton Bay Courier Saturday 17 February 1849
[4] Near the present town of Grafton in northern New South Wales, about 300 km from Brisbane.
[5] The Moreton Bay Courier Saturday 17 March 1849
[6] The Moreton Bay Courier Saturday 31 March 1849
[7] The Moreton Bay Courier Saturday 7 April 1849
[8] Originally a German mission station and now the northern Brisbane suburb of Nundah.
[9] The Sydney Morning Herald Wednesday 6 June 1849
[10] The Sydney Morning Herald Wednesday 6 June 1849
[11] The Sydney Morning Herald Wednesday 6 June 1849
[12] The Sydney Morning Herald Wednesday 6 June 1849