Gulgong Guardian and District Mining Record, Wed 29 May 1872 1
LOCAL NEWS.
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GULGONG POLICE COURT.
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MONDAY, 27th MAY.
Before AR McDonnell, Esq, JP.
…
Edward McCartney [aka McCarthy], charged with using insulting and disgusting language to Mr E Tarrant, was fined 20s. Or fourteen days.
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TUESDAY, 28th MAY.
Before H Tebbutt, Esq, JP.
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Edward McCartney, remanded from the previous day, was again brought [up] charged with committing an unnatural offence, and from the evidence of John McPherson, John Russell, and John Duggan, it seemed that the capital offence had been committed. The prisoner was committed to take his trial at the next Bathurst Assizes, the witnesses each being bound over to prosecute.
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Depositions for Edward McCarthy 24 Oct 1872 Bathurst trial 2
(M., 11 & 12 Vic., Cap. 42.)
Depositions of Witnesses.
Gulgong,
TO WIT }
The examination of Sergeant James Keenan of Gulgong in the Colony of New South Wales, John MacPherson, James Russell, John Duggan, and James Berry all of Gulgong, in the said Colony, Taken on oath, this 28th day of May in the Year of our Lord one thousand eight hundred and seventy two, at Gulgong 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 Edward McCarthy who is charged this day before me, for that he, the said Edward McCarthy, on the 25th day of May 1872 at Gulgong, in the said Colony, did commit and indecent assault upon one James Berry.
1
Edward McCarthy
Indecent Assault
Sergeant James Keenan, sworn, states I know the prisoner now before the Court I locked him up at Gulgong last Saturday night the 25th instant on charge of using insulting language. From information I received I charged the prisoner in the lock up this morning at about a quarter to 10 o’clock with indecently assaulting James Berry on the night of the 25th or morning of the 26th instant in the lock up. Prisoner said in reply, “What do you mean by assaulting, Sir.”
[Signed] James Keenan.
Sworn at Gulgong May 27th 1872.
[Signed] AKM (McDowell ?) JP.
John MacPherson sworn, states, I am at present confined in the lock up at Gulgong. I was there last Saturday night. I saw the prisoner now before the Court in the lock up last Saturday night. I also recognise James Berry as having been in the lock up the same night. Berry was so drunk that he had to be carried in to the cell. He remained quiet
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after he was brought in he seemed quite helpless. Prisoner was brought in after Berry, he did not seem very drunk: he was able to walk about. After he had been some time another man was brought in. I lit light match to show the other man where to lie down. I lit another match and saw Berry with his trousers down and prisoner lying close to him. Prisoner was leaning on his left arm and his right hand was down towards his person. Berry was on his side with his back towards prisoner. Prisoner was quite close to Berry. Prisoner had the flap of his trousers down, and his hand was on his person. I heard a noise after the match went out as if prisoner were committing an indecent act. I’m quite sure the prisoner was touching Berry. Prisoner did not alter his position while the match was alight. Berry’s trousers were down to his knees. I saw prisoner distinctly with his hand on his person. Berry was insensible the whole time. There were 7 of us in the lock up, all lying on the floor. I cannot say if Berry’s trousers were down when you came in.
[Signed] J MacPherson.
Sworn at Gulgong May 27th 1872.
[Signed] AKM (McDowell ?) JP.
3
James Russell, sworn, states, I am a miner. I know the prisoner. I saw him in the lock up last Saturday night. I also saw McPherson and Berry in the lock up the same night. I remember both the prisoner and Berry being brought to the lock up. After they were both in a match was struck and I saw prisoner kneeling over Berry. In about half an hour another match was lit and I saw Berry with his trousers down over his hips, he was lying on his left side. Prisoner was also lying on his left side and was as close to Berry as he could possibly get: his right arm was over Berry’s chest. I said to prisoner “You dirty old wretch. Is that your game?” He said “Blow the light out and go to sleep, anyone to hear your banack would think you never saw anything.” The match then went out. After the match went out I heard someone breathing hard. Berry’s feet were towards me and kept moving towards my face. I pushed them away and they kept coming back. The noise I heard was like a large made man entering a small made woman. I was quite sober. I am quite certain the prisoners arms were touching Berry’s chest.
Cross-examined by Prisoner: There were 7 of us in the cell; we were all lying on the floor. There was plenty of room for all of us. I did not see you do anything to Berry except
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that you had your hand over Berry’s chest. I was quite satisfied that you were doing something wrong. I never saw you are or Berry before.
[Signed] James Russell.
Sworn at Gulgong May 27th 1872.
[Signed] AKM (McDowell ?) JP.
Remanded Till tomorrow.
[Signed] AKM (McDowell ?) JP.
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Edward McCarthy.
On Remand.
John Duggan sworn, states, I am a Miner residing at Gulgong. I know prisoner. I saw him in the lock up at Gulgong last Saturday night. I also recognise James Berry now in court as a man I saw in the lock up that night. I remember Berry being brought in to the lock up: he was helplessly drunk. I remember prisoner being brought in; he was not drunk. Another man was brought in afterwards and McPherson struck a match so that he might see where to lay down. Three of us were lying down together. When McPherson struck the match I told saw prisoner leaning over Berry: I told McPherson a little while afterwards one of the men in the lock up said he felt a man’s boot touching his face. McPherson struck a match to see what was the matter. Berry had his trousers down over his knees. Prisoner was in the same position behind Berry. I McPherson saw told McPherson to hold the match still. I went over, and saw prisoner with one hand over Berry’s neck, and he was lying close to him. McPherson proposed to give him bloody good kicking. I said it was a disgraceful thing to come into court over and to let him alone. We struck another match and told prisoner to let the man alone
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Prisoner said “You are like men that never seen anything.” When I said to let prisoner alone he was doing the old man over. I pulled the blanket over my head and said I would have nothing whatever to do with it.
By the Bench: Prisoner was committing the crime of sodomy. I did not see prisoner’s person: his trousers were down.
Cross-examined by Prisoner: I could not see your person but I firmly believe you were committing sodomy. I did not know you in Victoria. I did not call a constable because I did not wish to come into court over such a disgraceful affair. I told McPherson I did not wish to have anything to do with the affair.
[Signed] John Duggan.
Sworn at Gulgong May 28th 1872.
[Signed] Henry (?) JP.
James Berry, sworn, states, I know prisoner. I was confined in the lock up at Gulgong last Saturday night. I was drunk and did not know what I was doing or where I was. I do not know anything of what happened during the night.
Cross-examined by Prisoner: I do not remember being searched.
[Signed] James (his X mark) Berry.
Sworn at Gulgong May 28th 1872.
[Signed] Henry (?) JP.
Committed for trial at Bathurst Assize October 24th.
[Signed] Henry (?) JP.
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(N., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales, Gulgong,
TO WIT }
Edward McCarthy stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 28th day of May in the Year of our Lord one thousand eight hundred and seventy two for that he, the said Edward McCarthy on the 25th day of May 1872 at Gulgong, in the said Colony, did commit and indecent assault upon one James Berry 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 Edward McCarthy and the witnesses for the prosecution James Keenan, John McPherson, James Russell, John Duggan, and James Berry being severally examined in his presence the said Edward McCarthy is now addressed by me as follows:– “Having heard the evidence, so 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 Edward McCarthy saith as follows:– “I think it is very hard, it is spite.” Taken before me at Gulgong in the said Colony, the day and year first abovementioned.
[Signed] Henry (?) JP.
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[On the deposition cover sheet the following is stated]
Depositions
Edward McCarthy
Indecent assault
Bathurst Assizes
October 24th 1872
Gulgong
May 28th 1872
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[On another deposition cover sheet the following is stated]
28th May 1872
No. 461 /4/
Depositions.
Regina v. Edward McCarthy
Attempt to commit Sodomy
CC 24 Oct
Attempt to Commit Sodomy
[Initial illegible]
8/6/72
Guilty Impt: with h. l. [hard labour] in Bathurst Gaol for 2 years [initial illegible] 30/10/72
Gulgong
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The Maitland Mercury and Hunter River General Advertiser, Sat 26 Oct 1872 3
TELEGRAPHIC INTELLIGENCE.
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(From the “Herald’s” Associated Press Telegrams,
and from other Sydney papers.)
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…
BATHURST.
Thursday.
Evening News.—The Circuit Court opened this morning, his Honor Sir Alfred Stephen presiding. The barristers present were Messrs Innes, Dalley, Buchanan, Belinfante, Davis, and Pilcher. The following is the calendar. It is the heaviest here known, seven of the accused having to answer charges of murder:—
Charles Edward Stewart, murder;
William Bristow, accessory to murder;
James Piper, unnatural offence;
Edward Macarthy [aka Edward McCarthy], indecent assault;
Peter McGee, murder;
Richard Spencer, murder;
Elizabeth Jane Watson, murder;
James Thompson, stealing from the person;
John Moletti, cutting and wounding;
James Shelley, false pretences;
George Graham, murder;
John Hughes, stealing saddle, &c;
Ho Sue, murder;
Sarah Thomaslaw, neglectfully causing death.
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Justice A Stephen’s notebook 4
40
[Bathurst, 24 October 1872]
Edward McCarthy. Attempt to commit unnatural offence on James Barry. 26 May [1872]
[Gulgong]
Constable [James] Keenan. Placed prisoner in custody in the (wh – watch house passim) on a charge of (threatening ?) language on (Saturday) 25th. Saw James Barry in the same cell at the time. He was hopelessly and stupidly drunk. There were 4 other
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persons in the same watch house – a small room 12 or 14 ft. square. – On Sunday about noon I charged prisoner with this offence on information received by me but not from Barry. 5
Cross-examined. The lock up is boarded throughout. Don’t know to whom the charge was first made. Nor when it was made. I sent for 2 men – witnesses here today. You had been drinking but I believe were sober.
John MacPherson. Miner. I was in the watch house for intoxication and rowing. Saw Barry brought in helplessly drunk. Prisoner was brought in afterwards. I met neither. No light in the watch house – Another man was brought in very drunk. I had some matches with me and I lit one to show him where to lie down. Afterwards Duggan asked me to light a match to see what prisoner was doing. I did so and saw prisoner close up to Barry with his flap down and B’s trowsers with
42
all his person naked from his hips to his knees. The match went out. I lit another and saw the same with the prisoner’s hand down towards his own person. Some person said What are you at there? 6 Prisoner answered with very abusive and blackguard language – Words can be heard through the (boards ?) if you speak loudly.
Cross-examined. I was once in Darlinghurst for drunkenness but never for any offence – dishonesty or the like. Your person was close up to B’s. Did not say to you that.
James Russell. Sometimes called McLachlan. Was in the lock up for 24 hours for being drunk on Queen’s birthday. I was sober on 25th. Barry was carried in helplessly drunk. Prisoner was brought in afterwards sober. B. was then lying on his back. Saw by the Policeman’s lamp as he came in.
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After some time saw prisoner near B. – I was nearest prisoner – B’s feet kept moving towards my face and I shoved him away more than once. It was as if some person was shoving him towards me. A match was struck and I saw B’s person – on his side – with his trowsers down to his knees 7 – & the prisoner as close to him as possible with his arm over B’s chest. I said you (bugger ?) is that your game? Prisoner said with abusive language that one would think I had never seen anything in a barrack.
Cross-examined. I was one of the only 3 men who was sober. The others were drunk. I have heard who reported the affair but I did not. Never saw you before.
John Duggan. I was in the watch house for having abused a policeman. Had been drinking but was sober then. Saw Barry brought in. His trowsers were quite right. I saw that they were.
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[Judge’s note]: (See s.s. in p. 4 b) Prisoner’s trowsers also were down – & his arm over Barry’s chest. I gave no information about the affair and did not want to. We did talk of kicking prisoner – but thought it better not. I determined to tell Barry in the morning.
Cross-examined. I did not want to be a witness against you in a dirty affair like this. I was never in Ballarat in my life and never prosecuted for any offence.
Prisoner says I had had a glass or two and was put in the watch house – and lay down as the others did – and I don’t believe that any thing of the kind spoken of took place. It is for spite. [Judge’s note]: (From whom?)
Guilty. A clear case–
Two years imprisonment with hard labour in Bathurst Gaol.
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The Bathurst Free Press and Mining Journal, Sat 26 Oct 1872 8
BATHURST CIRCUIT COURT.
THURSDAY, OCTOBER 24th, 1872.
(Before His Honor Sir Alfred Stephen CJ.)
His Honor took his seat on the Bench at ten o’clock am.
The Barristers present were Mr JGL Innes, (Solicitor General), WB Dalley,— Davis, Dr Belinfante, C Pilcher, D Buchanan.
Solicitors.— Williams (crown solicitor), JN McIntosh, SG Fletcher, WTA Shorter, (Dubbo), W West, W Morgan.
The Court having been opened by the crier, the proclamation against vice and immorality was read by the Judge’s Associate (Mr E Deas Thompson).
Before the jury were called, his Honor said there was a reason to believe that the sittings of the Court would extend over next week, as the calendar was unprecedently heavy, at any rate, it was extremely heavy. The course he (his Honor) intended to pursue was as follows:— The present panel of jurymen would be discharged on Saturday night, and on Monday morning a fresh panel would be called. That panel would attend during that week, and the jurymen discharged on Saturday night would again attend on Monday week, unless notified to the contrary. He (his Honor) intended to sit each morning at nine o’clock, and adjourn each evening, if possible, at six o’clock.
George A Wray, Thomas Atkins, and William Timothy Atkins (summoned as jurymen) claimed exemption from service as they were Volunteers. His Honor granted the application, but said he hoped that the law would soon be altered, making it necessary for the Volunteers to give notice to the Magistrate, before the sitting of the revision court, so that their names could be struck off the roll. The present applicants were exempt, unless they chose to volunteer for this service as they had done for the other.
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The Western Independent, Fri 1 Nov 1872 9
BATHURST CIRCUIT COURT.
———◦———
TUESDAY, OCTOBER 29th, 1872.
His Honor the Chief Justice [Sir Alfred Stephen] entered the Court and took his seat shortly after half-past nine.
…
WEDNESDAY, OCTOBER 31st, 1872 [sic–30th].
The Court was opened at 9.35 am, when His Honor took his seat.
…
Edward McCarthy was found guilty of an unnatural offence, and sentenced to two years imprisonment, with hard labour.
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The Bathurst Free Press and Mining Journal, Sat 2 Nov 1872 10
BATHURST CIRCUIT COURT.
WEDNESDAY OCTOBER 30th.
(Before his Honor Sir Alfred Stephen.)
His Honor took his seat on the bench at a quarter to 10 o’clock.
…
ATTEMPT TO COMMIT AN UNNATURAL OFFENCE.
Edward McCarthy was indicted for having, on the 26th day of May, 1872, at Gulgong, attempt to commit an unnatural offence, while confined in the lock-up at Gulgong.
The evidence in this case was disgusting and is not fit for publication.
After hearing the evidence the jury retired and after a short absence, returned a verdict of Guilty.
Sentence: Two years’ hard labour in Bathurst Gaol.
1 Gulgong Guardian and District Mining Record, Wed 29 May 1872, p. 2. Emphasis added.
2 SRNSW: NRS880, [9/6555] , Supreme Court, Papers and depositions, Bathurst, Oct 1872, No. 461. Emphasis added.
3 The Maitland Mercury and Hunter River General Advertiser, Sat 26 Oct 1872, p. 2. Emphasis added.
4 SRNSW: NRS7701, [2/7095] , Judiciary, A Stephen, CJ. Notebooks Circuit Courts, 1841-75, pp. 40-4.
5 Mn: Prisoner said to me what do you mean by “assaulting”
6 Mn: Russell or McLachlan
7 Mn: When B. was brought in his trowsers were all right
8 The Bathurst Free Press and Mining Journal, Sat 26 Oct 1872, p. 2.
9 The Western Independent, Fri 1 Nov 1872, p. 2.
10 The Bathurst Free Press and Mining Journal, Sat 2 Nov 1872, p. 2.