The Goulburn Herald and County of Argyle Advertiser, Sat 21 Feb 1857 1
SATURDAY, FEBRUARY 14.
Before the Police Magistrate [Patrick Plunkett] and E Maitland, Esq., JP.
MONDAY, FEBRUARY 10 [sic] 16.
A DISGUSTING CASE. – James Newman was charged with having attempted to commit a capital felony.
Duncan Davison deposed that he is between fourteen and fifteen years of age, and is an apprentice of Mr Musgrave’s to the saddlery business; he had known the defendant for the last three or four months, from his having come to Mr Musgrave’s shop with work from Mr Thorn. On Sunday evening last, between six and seven o’clock, while he (witness) was standing at Mr Musgrave’s corner, the defendant came up, and after talking to witness for a few minutes, asked him to go as far as Woodward’s and have a glass of ginger bear. Witness did so, and after partaking of the treat, and when both he and defendant were outside the house, defendant offered him three shillings to go with him as far as Brigg’s, at the brick kilns, to fetch a hat. Witness, after some solicitation, consented to go, and crossed the creek below “the willows.” (The witness here described the assault, the particulars of which are too disgusting to publish.) After witness had escaped from defendant, he made the best of his way towards house, closely followed by the accused, and when past the Hospital, he heard him call out that he would kill him. Information was given to witness’s brother and uncle, and the accused was apprehended on the same evening, near the creek at the south end of Auburn-street.
The prisoner was committed to take his trial at the next Circuit Court.
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The Goulburn Herald and County of Argyle Advertiser, Sat 21 Mar 1857 2
GOULBURN CIRCUIT COURT.— The Court will open on Monday morning, at 10 o’clock, before his honor Mr Justice Dickinson. The criminal calendar is exceedingly heavy. Besides the prisoners enumerated elsewhere, there will be a case from Albury of embezzlement, William Bird Evans being the name of the accused, and Mr TH Mate the prosecuting witness. We understand the Mr Holroyd has been specially engaged for this case. Some prisoners committed up the country (one from Burrowa for murder) are expected to arrive in the course of to-day. The following barristers will be present during the sittings of the Court:– Mr Faucett, Mr Isaacs, Mr Butler, Mr Blake, Mr Wise, and Mr Holroyd. The following is the civil cause list:– Ward v. Hunt, Hunt v. Gibbs, Lawlor v. Mackay, Riley v. Townsend, Whittaker v. Carroll, Broughton v. Boyd, Levy v. Colverwell, McMahon v. Mandelson, Post v. Osborne, Lodge v. O’Donnell, O’Neill v. Layton, Lynch v. Downey and another, Broughton and another v. Boyd, McKay v. McEachern, Turvey v. Murphy. The high Sheriff John O’Neil Brennan, Esq, will officially visit Goulburn on the occasion of the holding of the present Circuit Court.
CALENDAR FOR THE CIRCUIT COURT.— The following is a list of the prisoners for trial, as far as we have been able to complete it:—
William Gordon, for murder, committed from Yass.
William Smith, obtaining goods and money by false pretences, from Binalong.
Henry Conway, horse-stealing, from Binalong.
William Wilson and William Howard, horse-stealing, from Wagga Wagga.
John Hughes or Page and Henry Sullivan, uttering forged cheques, from Wagga Wagga.
William Taylor, stealing a cheque for £30, from Balranald.
Henry Allen, feloniously breaking into a store and stealing goods, from Deniliquin.
Thomas Smith, horse-stealing, from Albury.
William Edwards, horse-stealing, from Albury.
Thomas Linnane and Martin Rourke, robbery of gold from the person, from Goulburn.
James Kirkland, assault and robbery from person, from Goulburn.
Jas Newman, attempting an unnatural crime, from Goulburn.
John Yan (chinaman) wounding with intent, &c., remanded, from Mulwalla.
OUT ON BAIL.
George Galvin, senior, and George Galvin, jun cattle stealing, from Tumut.
Robert Clarke, horse stealing, from Tumut.
(?) William Poidevin, committed to take his [trial ?] by the bench at Wagga Wagga, has been discharged from custody, the Attorney-General having declined to file an information against him.
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Depositions for James Newman 23 March 1857 Goulburn trial 3
Recognizance to give Evidence.
New South Wales
TO WIT. }
Be it remembered, that on the sixteenth day of February, in the year of Our Lord one thousand eight hundred and fifty seven James Fisken, of Goulburn, shoemaker, personally came before me the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony and acknowledged himself to owe our Sovereign Lady the Queen the sum of thirty pounds in his own behalf – and the further sum of thirty pounds in behalf of Duncan Davidson the younger of good and lawful money of Great Britain, to be made and levied of his, and James Fisken’s goods and chattels, lands and tenements, to the use of our said Lady the Queen, her Heirs and Successors, if they the said James Fisken and Duncan Davidson shall fail in the condition indorsed.
Taken and acknowledged the day and year first above mentioned, at Goulburn in the said Colony, before me,
[Signed] P Plunkett, PM.
The condition of the within written Recognizance is such that whereas one James Newman was this day charged before me ----- Justice of the Peace within mentioned, with assault with intent to commit felony. If therefore they the said James Fisken and Duncan Davidson shall appear at the next Circuit Court to be holden at Goulburn in and for the Colony of New South Wales, on Monday the twenty third day of march next and give such evidence as they know upon an information to be then and there preferred against the said James Newman for the offence aforesaid, to the jurors who shall pass upon the trial of the said James Newman then the said Recognizance to be void, or else to stand in full force and virtue.
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(M. 11 & 12 Vic., Cap. 42).
Depositions of Witnesses.
New South Wales
TO WIT. }
The examination of Duncan Davidson Junior of Goulburn in the Colony of New South Wales, apprentice and James Fisken of Goulburn in the said Colony, shoemaker taken on oath this sixteenth day of February in the year of Our Lord one thousand eight hundred and fifty seven, at Goulburn in the Colony aforesaid, before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony in the presence and hearing of James Newman who is charged this day before me for that he the said James Newman on the fifteenth day of February Instant at Towrang, in the said Colony, in and upon Duncan Davidson Junior, unlawfully did make an assault with intent then and there to commit the crime of buggery.
This deponent Duncan Davidson on oath saith as follows: I live in Goulburn – am an apprentice in Mr Musgrave’s employment – am between 14 and 15 years of age. On the afternoon of yesterday, Sunday, I was standing outside Mr Musgrave’s shop the accused came up to me, bade me “Good evening” and asked me to go down to Woodward’s and have a glass of ginger beer. I went with him to Woodward’s and had some ginger beer. When we came out, he put three shillings into my hand and asked me to come over to Brigg’s with him for a hat. I had previously refused to go with him, as I thought I would not be home in time. He then gave me three shillings to go with him to Brigg’s. I received the money and went along with him. Brigg’s is about half a mile from the town,
across the creek, and some paddocks. It was between 7 and 8 o’clock in the evening. We crossed the creek, below the willow trees opposite the Presbyterian Church. There is a hedge of briars there – a person from the side we came from could not see us for the hedge. He caught me round the waist, said I should lay down. He loosened my belt. My trousers fell down. The loosened the fore-part of his trousers, and said “Take this between your thighs.” He exposed his person. I said I would not. He said “You must.” Then I said “Let me do a job for myself.” I stooped. He had hold of my hand, but let it go. I started up and ran, he after me for about ten yards. I got through the fence, and ran home. He pursued me as far as the hospital corner. He sang out something, in an angry voice. I
don’t know what. I ran home. I went down and told my brother and my uncle. When the accused exposed his person it was erect. My brother and my uncle and another man, with me, went about the town looking for the accused. I saw him standing at Cohen’s corner. I pointed him out. They caught hold of him. He made a couple of kicks at them and tried to get away. My brother asked what he was doing to his brother – that is, to me. He said “Joking, no harm.” I have known accused for three or four months. He is in the habit of bringing harness to the shop to be repaired. I have talked to him a little. When he loosened my belt and his own trousers and exposed
his person, he held me round my waist with one hand. He was not drunk. He could walk as well as I could. I now produce the money he gave me.
[Signed] Duncan Davidson
The witness, being recalled, further saith in reply to a question by the accused, a boy, Thomas Musgrave was standing outside at Woodward’s door when we came out.
[Signed] Duncan Davidson.
This deponent James Fisken maketh oath and saith: The last witness is my nephew. He came to me and his brother last night between 8 and 9 o’clock, I think. He was crying. He said a man had got him to go with him for the purpose of getting a hat from Brigg’s – that the man had decoyed him across the creek, and had there attempted to do that which is stated in my nephew’s evidence. We went to look for the man. The accused was pointed out to us by my nephew. We arrested him. He got away and ran some distance. We recaptured him. We told him we took him for sodomy. He said
he wanted to get home – to let him go.
[Signed] James Fisken.
The above depositions of Duncan Davidson and James Fisken were taken and sworn before me at Goulburn on the day and year first above written.
[Signed] P Plunkett, JP.
(N. 11 & 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales
TO WIT. }
James Newman stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this sixteenth day of February in the year of Our Lord one thousand eight hundred and fifty seven for that he the said James Newman on the fifteenth day of February Instant at Towrang in the said Colony, unlawfully did make and assault upon Duncan Davidson, with intent to commit the crime of buggery and the said charge being read to the said James Newman and the witnesses for the prosecution, Duncan Davidson and James Fisken being severally examined in his presence, the said James Newman is now addressed by me as follows:– “Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial;” whereupon the said James Newman saith as follows:– “I asked him to go and have a glass of
ginger beer – of me knowing of him, going backwards and forwards to the shop. He had a glass of ginger beer – I had a glass of rum. We came out – he went one way with a little boy. I went up to Ross’s public house.
[Signed] James (his X mark) Newman. Witness: (?)
Taken before me at Goulburn the day and year first above written.
[Signed] P Plunkett, JP.
The accused is committed for trial at next Circuit Court for assault with intent to commit a felony.
[Signed] P Plunkett, JP.
Will be allowed bail – himself in £100 two sureties in £50 each.
16 February 1857. [Signed] P Plunkett, JP.
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[On the depositions’ cover sheet is the following]
Goulburn Circuit Court
Goulburn No. 10
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16th February 1857
Assault with intent to commit an unnatural crime
Goulburn Gaol Delivery
[Initialled] WMM AG
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Assault on Duncan Davidson the younger, with intent to commit sodomy at Towrang on 15 February 1857
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Justice JN Dickinson’s Notebook 4
[Goulburn, Monday March 23rd 1857]
Queen v James Newman – Assault on Duncan Davidson with intent to commit on him the crime of -----. 5
“Duncan Davidson” is my name. I know prisoner 3 or 4 months. He spoke to me on evening of 17th February at corner of Musgrove’s. 6 He asked me “to go to Woodward’s to take ginger beer.” I said “yes.” I went – he gave me ginger beer. At coming out he said “come to Briggs for a hat” – Briggs mile from Goulburn. I said “too late.” It was 7 pm for past dark. Prisoner said “I’ll give you 3s. if you will come.” I said “I’ll go if you do not stay long.” He gave me 3s. & I went with him. In a paddock (no one near us) he caught hold of me & said “you must lie down” – He had his trowsers down & said, you must take this 7 between your thighs. He loosened my trowsers – he took belt off, my trowsers fell down. I said “let me do a job for myself.” He held me all the time. I ran away – he after me throwing stones.
I sa ran home to Musgrove’s – I made to my uncle a complaint – he & another went out, I pointed out prisoner – he was taken.
James Fisky. 8 Uncle to Duncan Davidson. I had prisoner apprehended; nephew told me something. He found me between 8 & 9 pm, he was crying – shirt torn.
2 years with hard labour in Darlinghurst Gaol.
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The Sydney Morning Herald, Thu 26 Mar 1857 9
GOULBURN CIRCUIT COURT.
(From Our Correspondent.)
MONDAY, 23rd MARCH, 1857.
His Honor Mr Justice Dickinson did not arrive in Goulburn until a late hour yesterday, in consequence of the very bad state of the roads. His Honor attended evening service at the Rev Mr Sowerby’s church.
This morning, with his accustomed punctuality, the learned Judge opened the Circuit Court at 10 o’clock precisely, and the Royal Proclamation was read by Mr Sempill, clerk of Assize. John O’Neil Brenan, Esq, the High Sheriff, was in attendance on the Court; and the members of the bar on the Circuit were the Hon John Bayley Darvall, Her Majesty’s Solicitor-General, AT Holroy, Esq, the Hon JP Lutwyche, Isidore Blake, Esq, the Hon R Isaacs, Peter Faucett, Esq, E Butler, Esq, and W Carey, Esq. The attorneys of the Court present were J Moore Dillon, Esq, Criminal Crown Solicitor, DH Deniehy, Esq, W Young, Esq, WH Walsh, Esq, and GC Allman, Esq, of Yass.
John Newman, was indicted for an assault with intent.
The jury found the prisoner guilty. Sentenced, two years’ imprisonment, with hard labour.
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The Goulburn Herald and County of Argyle Advertiser, Sat 28 Mar 1857 10
GOULBURN CIRCUIT COURT.
MONDAY, MAR 23.
The Court opened this morning before his
Honor Mr Justice Dickinson.
The following barristers were present– Mr Darvall, Solicitor General, prosecuting for the Crown; Mr Holroyd, Mr Lutwyche, Mr Isaacs, Mr Blake, Mr Faucett, Mr Butler, and Mr Carey. Attornies– [sic] Messrs Walsh, Blackmore, Deniehy, and Allman.
The clerk of arraigns having read the usual proclamation, the cases were proceeded with.
James Newman was arraigned on an information which charged him with having, on the 15th of February, assaulted Duncan Davidson, with intent to commit an unnatural crime.
The prisoner pleaded not guilty, and was undefended.
The particulars are unfit for publication.
The jury, after a long absence, returned into court, with a verdict of—Guilty.
The prisoner was sentenced to be imprisoned in Darlinghurst gaol for two years, with hard labour, his Honor regretting that the law did not permit him to visit such offences with a heavier punishment.
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The Goulburn Herald and County of Argyle Advertiser, Sat 28 Mar 1857 11
The Goulburn Herald
SATURDAY, MARCH 28, 1857
The sittings of our Criminal Court present many materials for thoughtful reflection. We regret the large number of cases, both on the criminal and civil side. The one would seem to indicate an increase of crime, the other an increase of litigation. As usual, horse and cattle stealing have been among the principal cases. The great case of embezzlement is proceeding while we write, with no chance of any speedy conclusion, and some aggravated assaults (one most disgusting, of which we shall have something to say presently) have been disposed of. This painful, and must distress every one who earnestly wishes the good of his fellow-man. With all the means to instruct the masses, and indoctrinate them in right morals and virtuous principles, how much is yet to be done! What a mass of evil must yet be removed!
The large number of civil cases, a number we believe unprecedented in any previous assizes, is a matter to be much regretted. By mutual concession many of these cases might have been settled; a wise and just arbitration would have saved the expenditure of hundreds of pounds, and prevented the rankling of these ill feelings which these squabbles almost inevitable induce.—We are not depreciating the value and the dignity of British law,—in fact, it is because we venerate that dignity that we object to its being degraded so far as to be made to minister to personal bickerings and unseemly dissensions.
Before our next assizes we hope the good people of Albury will have their cause of complaint removed, and that justice will be brought nearer to their own doors. The accounts we have heard of expenses that have been incurred make us all the more ready to believe that criminals have often been allowed to escape, and a premium has thus been indirectly given to moral delinquency, by the difficulty of pursuing the offenders with the deserved terrors of the law. Among the many sins of omission with which our ministry are justly chargeable, not the least is their neglecting to provide for this pressing exigence in the remote districts of the colony. Will the neglect ever receive its righteous retribution? We think it not likely.
One decision of our jury has caused considerable surprise, we know not but we might add, dissatisfaction. The circumstances are well known to most of our readers: for many reasons we forbear to particularise, but may refer to the matter on a future occasion. Trial by jury is one of the Englishman’s glories. Is it not sometimes shorn of its purity and robbed of its special value?
We have one word to say in reference to the sentences awarded. We think they are sometimes unequal, and in some cases inadequate. We will not extenuate any crime, but there are gradations and varieties in guilt. For instance which is the graver crime, that is, which inflicts the greater moral mischief on society, the stealing [of] a horse, a ballock, or a cow, or the perpetration, or even the attempt at perpetration of the unnatural offence of which it is a shame even to speak. And yet the culprit [James Newman] of the latter offence receives a punishment of two years, while the other is awarded six. We do not say the one is too severe, but we do say the other is too light. It will, we hope, scarcely be necessary to say that we are not in these statements in the least degree reflecting on the character of the learned Judge who presides over our court. We would not desire to award any fulsome compliments, which would be as disgraceful to ourselves as offensive to His Honor, but we are sure all will agree with us, that a more exponent of the law it would be difficult to find, and where discretionary power is allowed, he were a caviller indeed who would complain of the manner in which it is exercised. We complain of the law which needs amending. Look at the cases in its moral bearings on society. If impunity is allowed here, where will be mischief end? If such ruffians lightly escape, what safeguard have we to prevent any one similarly inclined becoming rampant in evil? For obvious reasons we cannot dwell on the disgusting subject, but we do emphatically protest against the system which awards three times the measure of punishment to him who steals a beast as that which is assigned to another who violates all laws of purity human and Divine, and does what in him lies to poison a youthful mind, and thus prepares his unhappy victim for every extreme of vice and enormity.
1 The Goulburn Herald and County of Argyle Advertiser, Sat 21 Feb 1857, p. 4. Emphasis added.
2 The Goulburn Herald and County of Argyle Advertiser, Sat 21 Mar 1857, p. 4. Emphasis added.
3 SRNSW: NRS880, [9/6410], Supreme Court, Papers and depositions, Goulburn, 1857, No. 10. Emphasis added.
4 SRNSW: NRS5864, [2/3155], Judiciary, JN Dickinson, J. Notebooks Circuit Courts, 1845-60, pp. 81a-82a. Emphasis added.
5 Crime unnamed.
6 Mr Musgrave’s in transcript of Depositions.
7 Insert:– private parts
8 Fisken in transcript of Depositions.
9 The Sydney Morning Herald, Thu 26 Mar 1857, pp. 2, 3.
10 The Goulburn Herald and County of Argyle Advertiser, Sat 28 Mar 1857, p. 6.
11 The Goulburn Herald and County of Argyle Advertiser, Sat 28 Mar 1857, p. 4. Emphasis added.