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The Manaro Mercury and Cooma and Bombala Advertiser, Fri 26 Dec 1862 1

COURT PETTY SESSIONS,
NIMITYBELLE [sic]
Saturday, December 20.
(Before R Dawson and D Bell, Esqrs, JP’s.)

INDECENT ASSAULT

    Thomas Bourke appeared on summons to answer the complaint of Ellen Donohue, a rather intelligent looking girl between 10 and 11 years old, by whom he was charged with attempting to commit an indecent assault.

Mr H Rapmund’s Nimmitabel Royal Hotel, Main Street. Image: The Sydney Mail and NSW Advertiser, Sat 2 Oct 1897, p.713. Reproduction: Peter de Waal
Mr H Rapmund’s Nimmitabel Royal Hotel, Main Street. Image:
The Sydney Mail and NSW Advertiser, Sat 2 Oct 1897, p.713.
Reproduction: Peter de Waal

    Ellen Donohue—Live at Nimitybelle with my mother, and am between 10 and 11 years of age. I can say my prayers and understand the nature of an oath. The attempted assault took place on Thursday the 11th last, between 10 and 11 in the forenoon. This was the time Thomas Bourke came to the hut; he was not sober at the time. My step-father or mother were not home. When Bourke came up he was riding, but he dismounted and came into the hut, leaving the horse standing outside. He asked me where my mother was. There was no one in the hut but me. I told that she was gone down to Mrs Johnson’s for milk. He then asked me if I was alone and I said “said.” He then asked me where my step-father was, and I told him he was up at Mr Bells. From the bad words Bourke used I ran outside, he ran after me and fell against the slabs. He said if I did not stand he would run me down with the horse, and that it was not the first girl he had run down with the same horse. He pulled a bottle of oil out of his pocket and made use of other bad words then. He said when he came back from Driscolls he would get me a lot of fine clothes and Johnny Burke’s pie-bold pony and take me to Sydney. He did not go away till step-father came home. I remained outside during this time. I did not go into the hut because I was frightened. After Bourke left I went in but did not tell step-father. At this time I saw mother coming home. I went and met her and told her what had taken place. Bourke was just going out of sight at this time. Bourke tried but could not catch me in the hut. About an hour afterwards McKee came and mother told him all about it.

    By Bourke—You were about an hour at the hut before step-father came, and about half-an-hour after he came I did not mention it while you were there because I did not (? ); I was ashamed. I never accused anyone before of a (similar ?) crime. I was living at Harris’s but I never accused a party named C Addison of a similar crime, or told Mrs Harris he had behaved indecently to me.

    Elizabeth Hill, mother of the previous witness, remember Thursday the 11th Dec. Between 10 and 11 o’clock I returned from Mr Johnson’s, distant from my home about half-a-mile, from milking a cow. Before reaching the hut my daughter met me and told me all she has just stated in Court respecting the accused Thomas Bourke.

    By Bourke—You have been at my place before but I have never heard you use bad or obscene language there.

    Edward Hill, shoemaker, step-father to the complainant—Remember Thursday the 11th Dec. About 10 o’clock that day I had occasion to go to Mr Bells store. I left my daughter in the hut alone washing up the breakfast things. My wife was at Mr Johnson’s milking. I met Bourke about 200 yards from Mr Bells store going in the direction on my hut, which was about 800 yards off the main road, and out of sight of any other residence. When I met Bourke he was going towards the hut. He said “you have not made my boats yet.” I said “No, so you have not got to pay for them.” I might have been a quarter of an hour Mr Bells, and going and coming would occupy about 30 minutes. When I returned to the hut Bourke was sitting on the wood heap and his horse standing by the door. My step-daughter was away sitting on the hill between my hut and the forge, which is the nearest building, with her head down as if something were the matter, Bourke came in and gammoned to be drunk. He said “I have got a great deal drunk since I saw you, will you mind my horse while I have a sleep.” I said “I have other work to mind,” and he became abusive. I threatened to send for the police, and, after some more abuse, he got on his horse and left. He did not then appear very drunk.

    By Bourke—It was inside half-an-hour between my seeing you on the road and then at the hut. There is no regular pathway past my hut to the road, but there is one going towards the township from the hut.

    This was the case for the prosecution.

    Mr Harris gave evidence tending to reflect upon the complainants character in reference to what it was alleged she had told Mrs Harris took place between her and one C Addison, also that she (Mrs Harris) considered the girl untruthful, but as no part of it really affected the case before the Court we omit it entirely.

    John Bourke—I am a relative of the accused. Remember seeing the complainant, Ellen Donohue, last Friday at Hills place. Her little sister was with her. I asked her if Thomas Bourke summoned, she said she thought he was. I then asked her did he touch her, she said “No.” Bourke has been living frequently at my place during the past twelve months and I have never heard him use bad language.

    [Thomas] Bourke stated that he had other two witnesses but as they could speak only in reference to the bad character of the girls parents it was no use calling them. He strongly held that he was innocent of the matter, and that he went to the hut with the intention of speaking to [Edward] Hill about the boats.

    The magistrates thought the evidence was sufficiently strong to warrant them in committing Bourke to the Quarter Sessions. Bourke reserved his defence and was then fully committed to take his trial at the Cooma Quarter Sessions in March next. Bail would be taken, two in £40 and Bourke in £80, but, bail not being forthcoming, Bourke was lock up.

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The Manaro Mercury and Cooma and Bombala Advertiser, Fri 20 Feb 1863 2

MARRIAGE OF MINORS.

    From the Gazette of the 10th inst., we cull the following:—It is hereby notified, for the information of the public, that the undermentioned Justices of the Peace have been and are Commissioned by their Honors the Judges, to give consent to the Marriage of Minors in the District placed opposite their names, under the provisions of the Marriage Act, 19 Victoria, No. 30, section XI: Cooma, Robert Cassells, Francis Smith, and Robert Barriston Dawson. The facts here disclosed are rich; if the Registrar-General can publish no more truthful lists we should strongly advise him to publish nothing. Mr Cassells has unfortunately been dead for the past ten months, and Mr Smith has not been a magistrate for more than twenty.

    Try again.

THE WEATHER.

    During the past week we have had a number of delicious showers, refreshing and renovating gardens, paddocks, and pastures most amazingly. Those showers, following so opportunely on the preceding ones, have almost effaced all traces of the long drought, and have effectually solved the vexed question of good or bad feed for the winter months. There can be no doubt now but that we shall have amply plenty of feed for the numerous herds on Monaro during the winter months. In the luxuriant green, with which the country ii now clothed, it seems barely possible to realise the stunted herbage of a few weeks ago irrespective of the bad commencement things may yet be well on Monaro in 1863.

THE ELECTORAL ROLL FOR MONARO.

    The newly compiled roll for 1863-4 has been appended to the door of the Court-house, for public inspection, in accordance with the Act. We are happy to add that generally the work of complication, so far as we know and have heard, seems to have been well performed. There are though several names of parties on the list who cannot boast of having yet reached the years of manhood.

COOMA QUARTER SESSIONS AND DISTRICT COURT.

    The Quarter Sessions will be opened before Judge [Thomas] Callaghan on Monday the 2nd of Marc.

    The following parties have been committed for trial:—Joseph Bowbear, receiving knowing to have been stolen, and Thomas Bourke, indecent assault on a little girl at Nimitybelle.

    The civil cases are very limited, the following cases only being down for hearing—Nos. 47, 48, and 50, postponed cases from last Court in the insolvent estate of A McDonald, of Nimitybelle; Bobbin v. Smith, pro. note £28; Dixon v. Abbot, work done, £8 19s.; Sherlock v. Ward, breach of contract £50.

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The Manaro Mercury and Cooma and Bombala Advertiser, Fri 6 Mar 1863 3

[COOMA] COURT OF QUARTER SESSIONS.
————

    Shortly after 10 am on Monday last the Court of Quarter Sessions, was opened before Judge Callaghan. 4 There were only three prisoners for trial. There was a large attendance of the public. Attorneys present:—Mr Templeton, Crown Prosecutor; Mr Freestone, Queanbeyan; Mr Gannon, Goulburn. Mr Nathan conducted the business of the Sessions. The usual formalities having been gone through, and a jury having been sworn, the cases were proceeded with as follows:—

INDECENT ASSAULT.

    Thomas Bourke appeared on bail charged with having on or about 11th December last at or near Nimitybelle committed an indecent assault on a little girl named Ellen Donohue; a second count charged prisoner with common assault.

    Mr Gannon appeared for the prisoner.

    Mr Templeton opened the case briefly reviewing the circumstances. A short time ago we published a lengthened report of the case, and as a great portion of it can only be expressed in terms of anything but pleasing to the ear, we now simply append a condensed report of what took place.

    Ellen Donohue, the girl in question, stated on the forenoon of the 11th of December, Bourke came to her step-father’s place where he was alone, her mother having gone to milk some cows at a Mrs Johnston’s, and her step-father being away to Mr Bell’s store to secure some hemp. On Bourke’s arrival he made use of several beastly expressions to the girl expressive of his intentions towards her, when she ran out and he followed, but, being apparently the worse of liquor, did not succeed in his attempt to lay hold of the girl, though he made a “grab” at her, and might have succeeded had he not fallen over a seat use by her step-father as a shoemaker. She got some distance away outside, and could not be induced by Bourke to return. At this stage the girl’s step-father named Hill returned, and him and Bourke having a few words, the later mounted his horse, which had all the time been standing near, and with which he had threatened to run the girl down when making her escape, rode off towards Driscoll’s, at which place he was engaged shearing. Soon after the girl’s mother made her appearance on the return, and the girl went and met her and told all that had just been enacted by the prisoner Bourke, who was not then out of sight.

    Edward and Elizabeth Hill, the step-father and mother of the girl, gave evidence confirming the complainants statement.

    In cross-examination by Mr Gannon several inconsistencies were elicited from the girl and witnesses, it being shown that they had given evidence directly contrary on some points before the magistrates, and varying considerably on others, but nothing could be adduced to show that prisoner was not guilty of one or other of the charges.

    Mr Gannon addressed the jury for the prisoner at length and with considerable force pointing out the discrepancies, and arguing that if they found Bourke guilty at all it could not be on the first count of the indictment as there was no evidence to sustain it.

    Mr Templeton replied freely admitting the discrepancies but pointing out that they were only such as might be expected from a girl of such tender years, especially when giving evidence in a Court of Justice.

Thomas (later Judge) Callaghan, 1847. Image: National Gallery of Australia, NGA 87.1638. Reproduction: Peter de Waal
Thomas (later Judge) Callaghan, 1847.
Image: National Gallery of Australia, NGA
87.1638. Reproduction: Peter de Waal

    His Honor [Judge Callaghan] summed up at great length, pointing out the peculiar hearing of the law in this country as compared with that of England, giving it as his opinion that there was not the least doubt but that Bourke was guilty on an indecent assault so far as the language went, but that they could not find him guilty of such an assault inasmuch as to “grab” at the skirt was not an indecent assault withing the meaning of the law. He did not therefore think that the evidence was such as would sustain a verdict of the first count, but thought that it would justify them on the second count of assault. He explained the evidence to the jury, and then left it to them to say whether prisoner was guilty or not.

    The jury retired to consider their verdict, and returned into Court in a about a quarter of an hour with a verdict of guilty on the second count.

    John Burke of Nimitybelle gave the prisoner a good character, having known him for the past two years, and he having for the past 16 months been living “on and off” at his place at Nimitybelle.

    Prisoner, [Thomas Bourke], in reply to the Judge, pleaded his innocence and that he never met Hill till he saw him at the hut, to which place he went to look after some boots.

    His Honor sentenced him to 12 months in Goulburn Gaol, at the expiration of which period to find two sureties in £10 each and himself £20 for his good behaviour for 12 months, in case of the securities not being forthcoming to be further imprisoned until they were found.

 


1     The Manaro Mercury and Cooma and Bombala Advertiser, (NSW), Fri 26 Dec 1862, p. 2. Emphasis added.

2     The Manaro Mercury and Cooma and Bombala Advertiser, (NSW), Fri 20 Feb 1863, p. 6. Emphasis added.

3     The Manaro Mercury and Cooma and Bombala Advertiser, (NSW), Fri 6 Mar 1863, p. 4.

4     Bell’s Life in Sydney and Sporting Chronicle, (NSW), Sat 5 Dec 1863, p. 3.

DEATH OF JUDGE CALLAGHAN

    We regret to announce the death of Judge Callaghan, [1815-1863], which took place at Braidwood at twenty minutes past two o’clock on Saturday afternoon last, [28 Nov 1863]. The injuries [horse riding accident] he received at the sale yard of Mr Bell, the auctioneer, on that day week were of such a nature as to render recovery almost impossible. Although Dr Beer paid him the most unremitting attention, and the judge’s brother in-law, Dr Milford, was also in attendance on him for a couple of days before his death, their endeavours to preserve his life were fruitless. Concussion of the brain had resulted from the accident, and disease of the heart from which he had previously suffered came off violently and had, as we have stated, a fatal termination. From the first it was known that the injuries were very severe, and his wife immediately started from Sydney, via Goulburn, for Braidwood. She reached her husband on Tuesday evening, having been driven down from Goulburn by Mr Chas H Walsh. She was thus enabled to spend the last few days with him. It appears that after the first two days he grow somewhat better, but on Thursday he got worse, and was seized with fits which continued at intervals until his death.

    The deceased judge, Mr Thomas Callaghan, was an Irishman and a Roman Catholic. He was a Bachelor of Arts of Trinity College, Dublin, and during the period of his university career attained to some honor and distinction. Nearly twenty-four years ago, in February, 1840, he arrived in New South Wales in the ship Arkwright, and having been admitted a barrister in Ireland continued his profession here. Whilst practising he compiled the well-known work known as “Callaghan’s Acts,” a book of high standing in the law courts of this colony. Some years after, he was appointed crown prosecutor, and subsequently chairman of the court of quarter sessions. He was afterwards raised to the dignity of a judge of the district court, which office he held at the time of his decease.

    During his illness the Rev Edward O’Brien, the Catholic priest in Braidwood, was constantly in attendance upon him. The funeral took place at Braidwood on Monday morning, and his remains were followed to the grave by a large portion of the most respectable residents in that town. Previous to the body being taken to the burial-ground, the mass for the dead was celebrated in Saint Bede’s Church. Yesterday, out of respect to his memory, the Supreme Court in Sydney was closed; and this morning a solemn high mass on his behalf is to be celebrated by his Grace the Archbishop in Saint Mary’s Cathedral, and in the evening the usual dirge will be chaunted.

    Judge Callaghan was wall known in this district, and was universally respected. As a judge he was highly esteemed, and was most unbiased and painstaking in his decisions, and possessed the great merit, not too generally to be met with, of being desirous of discouraging litigation. It will be some consolation to his widow and family to know how deeply and generally he is regretted.

    The judge, who was, we believe, in his 47th year, leaves a widow, the daughter of Mr Justice Milford, and three children. The two youngest are at present in the colony, but the eldest is in England, a pupil at Oscot College.—Goulburn Chronicle December 2.”