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1869, John McNab - Unfit For Publication
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Empire, Fri 9 Apr 1869 1

WATER POLICE COURT.
THURSDAY.
(Before the Water Police Magistrate, and Mr R Hunt.)


    John McNab was charged with attempting the committal of an unnatural offence. Prisoner was second officer of the ship Lady Bowen and the offence was committed upon one of the ship’s boys on Wednesday last, who having laid an information, detective Bowden arrested prisoner. The evidence was unfit for publication. The Bench committed prisoner for trial at the ensuing Criminal Sittings.

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The Sydney Morning Herald, Fri 9 Apr 1869 2

WATER POLICE COURT.
THURSDAY.

    BEFORE the Water Police Magistrate [Peter Lawrence Cloete] with Mr R Hunt.

    John McNab, second officer of the ship Lady Bowen, was committed to take his trial at the next sittings of the Criminal Court, for assaulting Thomas McDonald, an apprentice on board, with intent to commit an unnatural offence.

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Depositions for John McNab 19 May 1869 Sydney trial 3

To the Honorable Attorney General

Sydney 1st May 1869

    Having been taken out of the ship Lady Bowen the day before she sailed on the 8th of April last as the principal witness against John McNab, for sodomy.

    I wish to know if my evidence can be dispensed with, as I can leave in another ship in a few days, and the case not coming on till the 17th of this month, I am not able to pay my expenses till then.

I am your obedient servant.
[Signed] George Willock.
My address is care of Mr John Jenkins, [Forth and Clyde Hotel 93 and] 95 Princes Street, Sydney.

69:708 

4th May.
Sydney, 1st May.

    George Willock, principal witness against one John McNab (attempt to commit sodomy) – inquiring if his attendance at next Central Criminal Court, can be dispensed with.

(Depositions No. 332, with Crown Solicitors)
Depositions (?) [initialled] W[illiam] M[ontagu] M[anning], AG., May 4/69
See fold [initialled] WMM, AG., May 5/69

~ ~ ~ ~ ~

    This witness’s attendance cannot be dispensed with.
[Initialled] WMM [William Montagu Manning], AG May 5/69.

Mr Willock apprised – 7:5:’69

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Information – (General purposes.)

New South Wales, City of Sydney 
TO WIT.                                       }
Be it remembered, that on this 7th day of April in the year of Our Lord one thousand eight hundred and sixty nine at Sydney in the Colony of New South Wales, Thomas McDonald apprentice belonging to the ship Lady Bowen of Sydney appears before me, the undersigned, one of Her Majesty’s Justices duly assigned to keep the Peace of our Lady the Queen in and for the Colony of New South Wales, and on oath informs me, that on the fifth day of April in the year of Our Lord one thousand eight hundred and sixty nine at Port Jackson in the said Colony, one John McNab in and upon the said Thomas McDonald did make an assault and him the said Thomas McDonald did then beat wound and ill treat with intent that detestable and abominable crime called buggery with the said Thomas McDonald feloniously wickedly and against the order of nature to commit and perpetrate contrary to the Act in such case made and provided; whereupon the said Thomas McDonald prays that I, the said Justice, will proceed in the premises according to law.
[Signed] T MacDonald.

Sworn at Sydney, in the said Colony, on the day first above written, before me.
[Signed] PL Cloete, WPM.

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(B.)

Warrant to Apprehend a Person Charged with an Indictable Offence.

To the Sub Inspector of the Metropolitan Police Force of the City of Sydney and to his assistants in the Colony of New South Wales, and to all other Police Officers in the said State.

Whereas John McNab of the City of Sydney in the said Colony, ----- hath this day been charged upon oath before the undersigned, one of Her Majesty’s Justices of the Peace in and for the said City and Colony, for that he on the 5th day of April Instant at Port Jackson in the said Colony, he and upon one Thomas McDonald did make an assault and him the said Thomas McDonald did then beat wound and ill treat with intent that detestable and abominable crime called buggery with the said Thomas McDonald feloniously wickedly and against the order of nature to commit and perpetrate.

These are therefore to command you in Her Majesty’s name, forthwith to apprehend the said John McNab and to being him before me or some other of Her Majesty’s Justices of the Peace in and for the said City and Colony, to answer unto the said charge, and to be further dealt with according to law.

Given under my hand and seal, this 7th day of April, in the year of Our Lord one thousand eight hundred and sixty nine at the City of Sydney, in the Colony aforesaid.
[Signed] PL Cloete, WPM.

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(M., 11 & 12 Vic., Cap. 42.)
Depositions of Witnesses.

New South Wales, City of Sydney 
TO WIT.                                       }
The examination of Joseph Bowden a Detective Constable of the Police Force, in the Colony of New South Wales, Thomas McDonald an apprentice of the ship Lady Bowen and George Willock a seaman of the Lady Bowen, in the said Colony, taken on oath this 8th day of April in the year of Our Lord one thousand eight hundred and sixty nine, at Sydney 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 John McNab who is charged this day before me, for that he the said John McNab, on the fifth day of April Instant at Port Jackson, in the said Colony, in and upon one Thomas McDonald did make and assault and him the said Thomas McDonald did then beat and wound and ill treat with intent that detestable and abominable crime called buggery with the said Thomas McDonald feloniously wickedly and against the order of nature to commit and perpetrate.

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John McNab

    Detective Constable [Joseph] Bowden on oath states:– About 12 o’clock yesterday I arrested the prisoner on board the Lady Bowen lying in this port by virtue of the warrant produced wherein he is charged with having on the fifth day of April Instant made an assault on one Thomas McDonald and him the said Thomas McDonald then beaten and wounded and ill treated with intent that detestable and abominable crime called buggery with the said Thomas McDonald feloniously wickedly and against the order of nature to commit and perpetrate. I read the warrant to prisoner and he replied “It’s all false.”
[Signed] Joseph Bowden.

Sworn at Sydney this 8th April 1869.
[Signed] PL Cloete, WPM.

2

    Thomas McDonald on oath states:– Prisoner is the person I alluded to in my information. On Monday night last prisoner came on board the Lady Bowen of which he is Second Mate and I am an apprentice. He said to me “I’m going to have a wash down in the big tub. I suppose you’ll come and give me a rub down.” I said “Yes.” I rubbed him down. He got out of the tub. I wiped him down and he asked me to come into the room. I went into the room. I was there a bit when he told me to take off my trousers. I asked him what for. He replied “Never mind.” I took off my trousers and he made me get into bed. As soon as I got into bed prisoner got on top of me and would not let me up. He said he would not let me let me go out till the steward went to bed. I was lying on my belly in the bed. Prisoner was on top of me. Prisoner’s person

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was exposed, he attempted to enter me with his person. He did not enter me. He gave me no pain. He was on the top of me about a quarter of an hour. He was moving when upon me. He asked me if it hurt me. He did not say anything when he left off. When he left off he kept me in the bed about an hour. I could not get away. He had me squeezed into the side of the bed. I was afraid to call out. This was in prisoner’s cabin, a poop cabin. I don’t know whether the steward could have heard if I had called out. When the steward put out the lamp prisoner unlocked the door and let me out. When I was going out prisoner told me not to tell anyone and the next morning prisoner came to and told me not for God’s sake to tell anyone, saying “You’ll ruin me for life.” The steward asked me what I was doing in the cabin. I did not like to tell him and he said he would tell the Captain. I told the Mate of the occurrence in the morning. I am sure he was trying to enter me with his private parts. I felt them. I made as much resistance as I could.

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Prisoner never spoke to me on the subject before. He has been in the ship about a fortnight. I told the Captain too.

    Mr Greer: It was about ten o’clock in the evening when I rubbed him down. It was after nine because I heard the gun. The tub was on deck in front of the poop. It was in an open place. When I was rubbing him down he asked me to go into the cabin. I did not rub him down after I went into the cabin. I had not finished rubbing him down when I went into the cabin. I was afraid to call out. I did not attempt to do so. I had no idea what prisoner was going to do to me when he told me to take off my trousers. The steward’s cabin is next to prisoner’s. The steward was on the poop. I saw him going up when I went into the prisoner’s cabin. If the steward had been in his cabin and I had knocked he could have heard me. I was not talking all the time. I was in the berth. Prisoner went into the berth first and I followed him. Where I say the berth I mean the cabin. There’s only one bed in prisoner’s cabin. It is not a very wide one. About 4 feet wide. It is pretty high up. About four feet high. I got

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into the bunk first and was hardly in before prisoner came on top of me. The Lady Bowen was lying in the stream in this port. I asked prisoner once or twice to let me out and he said he would not till the steward who went to bed. I did not say anything when prisoner got into the bunk with me. Prisoner was trying to enter me the whole time he was on me.
[Signed] Thomas MacDonald.

Being sworn at Sydney this eighth day of April 1869.
[Signed] PL Cloete, WPM.

6

    George Willock on oath states:– I was Acting Steward on board the vessel Lady Bowen. Prisoner was Second Mate and last witness was apprentice of her. On Monday night last a little after 10 o’clock prisoner came on board. He came down into the cabin and told me that he was going to have a wash in the deck tub. He went into his cabin and I went on to the poop. After I had been there some time the first and third mate came on board and about half an hour afterwards I was just about to prepare to turn in when the watchman asked me if I knew where the boy Tom was and I said he was not in his house. I replied I did not know and the watchman said he thought that he was in the Second Mate’s cabin. I went down to see and found the door locked. I put down the lights in the saloon and bed down on a setee opposite the door. Whilst lying there I heard some voices in the Second Mate’s cabin but could not make out what they said. I then told the watchman to watch the fore cabin whilst I watched the prisoner’s. a little after 12 o’clock prisoner opened the door and looked

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out and walked as far as the companion stairs, looked around and then returned to his cabin and let out the boy Tom. Thomas McDonald (last witness) is the person I refer to as the boy Tom. The prisoner did not see me. The boy Tom came out and went up into the poop. I followed him and asked what he had been doing in the Second Mate’s cabin. The boy Tom could not answer me for a time and then commenced to cry. He then made at a statement to me which I reported to the Chief Mate. When I put the light down it would appear from the Second Mat’s cabin as if the lights were out.

    Mr Greer: No-one standing at the tub could see me going up onto the poop. Prisoner was undressing in his cabin when I went onto the poop. Prisoner had his (drawers ?) on when I left. I did not see the boy Tom there then. This was a little after ten o’clock in the evening. Prisoner’s cabin door was open when I went up. The door was wide open. It was An hour and a half elapsed from the time I went on to the poop till I tried prisoner’s cabin door and found it locked. I put the lights down about 10 past 11 o’clock. The boy was dressed when he came out.

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From prisoner’s appearance when he came on board I believe he had been drinking but knew perfectly what he was doing – he was not drunk.
[Signed] George Willock.

Sworn at Sydney this 8th day of April 1869.
[Signed] PL Cloete, WPM.

9

    Thomas McDonald recalled states:– I am sure prisoner did not enter me. Prisoner’s person was pressed against my back parts – there was not any wet or emission.
[Signed] Thomas MacDonald.

Sworn at Sydney this eighth day of April 1869.
[Signed] PL Cloete, WPM.

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(M., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.

New South Wales, City of Sydney 
TO WIT.                                       }
John McNab stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this eighth day of April in the year of Our Lord one thousand eight hundred and sixty nine for that he, the said John McNab on the fifth day of April Instant at Port Jackson, in the said Colony, in and upon one Thomas McDonald did make an assault and him the said Thomas McDonald did then beat and ill treat with intent that the detestable and abominable crime called buggery with the said Thomas McDonald feloniously wickedly and against the order of nature to commit an perpetrate and the examinations of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the accused having been caused to be read to him by me, the said Justice, (by/or) before whom such examination has been so completed; and I, the said Justice, having also stated to the accused and given him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trial, notwithstanding such promise or threat; and the said charge being read to the said John McNab and the witnesses for the prosecution Joseph Bowden, Thomas McDonald and George Willock being severally examined in his presence, the said John ----- 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 John McNab saith as follows: “Reserve my defence.”

Taken before me, at Sydney, in the said Colony, the day and year first abovementioned.
[Signed] PL Cloete, WPM. 

~ ~ ~ ~ ~

    Prisoner stands committed to take his trial at the next Court of Gaol Delivery to be holden at Darlinghurst on the 17th day of May next. May be allowed bail himself in the sum of £200 and two sureties in the same of £100 each.
[Signed] PL Cloete, WPM.

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Recognizance to Give Evidence.

New South Wales, City of Sydney 
TO WIT.                                       }
Be it remembered, that on the eighth day of April in the year of Our Lord one thousand eight hundred and sixty nine James McDonald of Newtown in the District of Sydney, in the Colony of New South Wales, broker personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledged himself to owe our Sovereign Lady the Queen the sum of fifty pounds each, of good and lawful money of Great Britain to be made and levied on his goods and chattels, lands and tenements, to the use of our said Lady the Queen, her Heirs and Successors if Thomas McDonald the informant they the said before mentioned persons shall fail in the condition indorsed.
[Signed] James McDonald.

Taken and acknowledged the day and year first above mentioned, at Sydney, in the said Colony, before me.
[Signed] PL Cloete, WPM.

    The condition of the within written Recognizance is such, that whereas John McNab was this day charged before PL Cloete Esquire one of Her Majesty’s Justices of the Peace for the said Colony, with attempting to commit sodomy.

If therefore, the said Thomas McDonald shall appear at the next Court of Gaol Delivery, to be holden at Sydney, in and for the Colony of New South Wales, on Monday, the 17th day of May next, at nine of the clock in the forenoon, and then and there give such evidence as he knows, upon an information to be then and there preferred against the said John McNab for the offence aforesaid to the jurors who shall pass upon the trial of the said John McNab then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] PL Cloete, WPM.

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Recognizance to Give Evidence.

New South Wales, City of Sydney
TO WIT.                                       }
Be it remembered, that on the eighth day of April in the year of Our Lord one thousand eight hundred and sixty nine Joseph Bowden a Detective on of the Sydney Police Force, George Willock of No. ----- Street in the City of Sydney, in the Colony of New South Wales, personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledged themselves to owe our Sovereign Lady the Queen the sum of forty pounds each, of good and lawful money of Great Britain, to be made and levied on their goods and chattels, lands and tenements, to the use of our said Lady the Queen, her Heirs and successors, if they the said before mentioned persons shall fail in the condition indorsed.
[Signed] Joseph Bowden, George Willock.

Taken and acknowledged the day and year first above mentioned, at Sydney, in the said Colony, before me.
[Signed] PL Cloete, WPM.

    The condition of the within written Recognizance is such, that whereas John McNab was this day charged before PL Cloete Esquire, one of Her Majesty’s Justices of the Peace for the said Colony, with attempt at sodomy.

If therefore they the said before mentioned persons shall appear at the next Court of Gaol Delivery to be holden at Sydney, in and for the Colony of New South Wales, on Monday the 17th day of May next, at nine of the clock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said John McNab for the offence aforesaid, to the jurors who shall pass upon the trial of the said John McNab then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] PL Cloete, WPM.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

8th April 1869
No. 332 (18)
Depositions.
Regina
v.
John McNab
Attempt at sodomy
Central Criminal Court
to WMM [William Montagu Manning] AG
April 13/69
Water Police Court

~ ~ ~ ~ ~

Justice JF Hargrave’s Notebook 4

9

[Darlinghurst Criminal Sittings, Wednesday, 19 May 1869]
Q v John McNab – assault with intent to commit sodomy.
on 5th April/69 at Port Jackson} assault Thomas McDonald with intent. 5
Rogers for Crown.

    1st Witness Joseph Bowden. Detective. Apprehended prisoner on 7th April last on board “Lady Bowen”. Read warrant & he said “It was all false”. Then took him into custody.

    2nd Witness Thomas McDonald. Prentice to Robert Towns on 5th April Lady Bowen sailing vessel. Knows prisoner. He was second mate on board same ship – remember 5th April Monday – remember prisoner coming on board – about after 10 o’clock I think. I heard the 9 o’clock gun fire. He asked me to rub him down after having a wash. I did so. He asked me to come into his room. When he got me into his room he told me to take off my trowsers & I asked “what for”

10

He said “never mind he’d show me.” I did so, took off my trowsers – he told me to get into bed. I was on the bed when he 6 – He would not let me out. He kept me down. I was lying on my belly. He was undressed. I felt his private parts against me. He kept on shoving at me & would not let me get up – about half an hour between my legs. I felt his private parts. He did not hurt me. He did not say anything – & would not let me out until the steward went to bed. After the half hour he kept upon bed & kept me against the wall – my back was not to him. He did not let me out till after 12. Next morning he said, for God’s sake don’t tell anyone or ruin me for life. I saw Steward & Watchman & the Mate & said something to them. I told the Steward the same night this occurred – between my legs. Been 2 months apprenticed to Mr. Towns working with my father. He used to set work to do – never set me to work nor complained to Captain of me. 3 other apprentices, never any disputes. The Steward was (on the ?) poop – & the Watchman (also ?). I could hear them on the poop when I was in the cabin. That not usual place I slept.

11

Another apprentice on board that night. About 3 weeks on board that ship while in harbour. Royal Saxon – that ship is also going to china (like ?) the Lady Bowen (?) 2 weeks. He did not say anything all the 2 hours – I only asked him to let me 3 or 4 times. I was frightened to cry out though in reach. At 12 o’clock met the Steward & then went out. The Mate came up directly afterwards. Next morning he said, don’t tell about half past 6 – I was in the boys’ place. He just came in, said that, and walked out again. No one there. Never inside cabin before nor asked to go there.

    Cross-examined. I asked you to come in – I was there – There was only one bunk there. I did not know you were worse for drink. He did not ask me what had been done.

    By Juror. He just said “For God’s sake don’t” & nothing before – nothing before – been 3 weeks in ship. He did not command me much. He seemed excited & I was afraid of him. The ship was then “out in stream.” I am about 16. Never before – did not tell me why into bed. Had no idea what he wanted me for. Between my legs – towards my back – did not feel anything beside his pressing me – no part entered my body.

12

Did not know whether to sleep there all night or [not]. I was frightened of him. I never used you unkindly. Spoke cross to me.

    2nd Witness 7 George Willock. Steward on 5th April Lady Bowen. Remembers Monday night. Saw prisoner a little near 10 o’clock. He came on board then & opened his cabin door & said he was going to have a wash in deck tub. When nothing but drawers & shirt on I left him there by himself – did not hear anything of washing. Stopped on poop till 11 & then went down to cabin to see if all closed up – & while in fore cabin I heard an unusual noise in 2nd Mate’s room like whispering. Now Watchman went to his door & it was locked. I turned the light down in centre of cabin and I laid down on settee opposite him his door. After – I heard talk & whispering & knocking about – between 11 & 12 – about 1 o’clock the door opened. The prisoner looked around & went to (Comp.?) stair & returned & said “all right” & pushed the boy out & I caught hold & he said he could not help it & made a complaint against prisoner. He cried & could hardly speak. He commenced to cry when I caught him, a minute.

    Cross-examined by prisoner. You were 15 days on board ship – nothing wrong before nor abusing boys nor cross to them. Treated them as they ought to be treated, so far as I know. Am sure I heard talking & whispering.

Verdict at two o’clock – Guilty 

Imprisonment in Darlinghurst Gaol hard labour for one year.

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Empire, Thu 20 May 1869 8

CENTRAL CRIMINAL COURT.
WEDNESDAY.
FIRST COURT.
(Before his Honor Justice Cheeke.)

SECOND COURT.
(Before his Honor Justice Hargrave.)

UNNATURAL OFFENCE.

    John McNab was indicted for having on the 5th of April last assaulted one Thomas McDonald with intent to commit an unnatural offence. The prisoner pleaded not guilty, and was not defended. Mr Rogers prosecuted. Prisoner was second mate of the ship Lady Bowen, and MacDonald, [sic] aged 16 years, was an apprentice on board the same vessel. On the night of the 5th of last month the offence was alleged to have taken place in the prisoner’s cabin. The details are wholly unfit for publication. Prisoner having addressed the jury, his Honor summed up, and the jury found the prisoner guilty, with a recommendation to mercy on account of previous good character. He was sentenced to twelve months’ hard labour in Sydney gaol.

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The Sydney Morning Herald, Thu 20 May 1869 9

CENTRAL CRIMINAL COURT.
WEDNESDAY

    BEFORE his Honor Mr Justice Cheeke and a common jury.

SECOND COURT.

    Before His Honor Mr Justice Hargrave and a common jury.

ASSAULT WITH INTENT.

    John McNab was charged with having on the 5th of April last, in the harbour of Port Jackson, assaulted John McDonald, with intent to commit an unnatural offence. Prisoner was second mate of the Lady Bowen, and the prosecutor was an apprentice on the same ship. On the night in question, prisoner took the boy into his cabin and committed the offence. The particulars are unfit for publication. Prisoner pleaded not guilty, and was undefended. The jury having recommended prisoner to mercy on account of his previous good character, his Honor sentenced him to twelve months’ imprisonment.

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The Sydney Mail and NSW Advertiser, Sat 22 May 1869 10

CRIMINAL COURT.
MONDAY.

    The sittings of the Central Criminal Court were opened yesterday before his Honor Mr Justice Cheeke and a common jury.

WEDNESDAY.

SECOND COURT.

    Before His Honor Mr Justice Hargrave and a common jury.

ASSAULT WITH INTENT.

    John McNab was charged with having on the 5th of April last, in the harbour of Port Jackson, assaulted John McDonald, with intent to commit an unnatural offence. Prisoner was second mate of the Lady Bowen, and the prosecutor was an apprentice on the same ship. On the night in question, prisoner took the boy into his cabin and committed the offence. The particulars are unfit for publication. Prisoner pleaded not guilty, and was undefended. The jury having recommended prisoner to mercy on account of his previous good character, his Honor sentenced him to twelve months’ imprisonment.

 


1    Empire, Fri 9 Apr 1869, p. 2.

2    The Sydney Morning Herald, Fri 9 Apr 1869, p. 2.

3    SRNSW: NRS880, [9/6516], Supreme Court, Papers and depositions, Sydney, 1869, No. 332. Emphasis added.

4    SRNSW: NRS6032, [2/4388], Judiciary, JF Hargrave, J. Notebooks Criminal Causes (Darlinghurst), 1865-78, pp. 9-12. Emphasis added.

5    Mn: 9 Geo. 4 c.31 sec.25 “assault with intent to commit felony” 2 years.

6    Sentence unfinished.

7    Actually the 3rd.

8    Empire, Thu 20 May 1869, p. 3.

9    The Sydney Morning Herald, Thu 20 May 1869, p. 2.

10   The Sydney Mail and NSW Advertiser, Sat 22 May 1869, p. 3.