1874, Richard Massey

Empire, Mon 12 Jan 1874 ¹

CENTRAL POLICE COURT.—Saturday.
————

Before the PM, (Captain Scott), with his Worship the Mayor, and Messrs Smart, Guy, and Cunninghame.
…
Robert [aka Richard] Massey, 18, described in the sheet as a labourer, was brought up under warrant, charged that he did feloniously assault one William Lehan [aka Lehen; Leken] with intent feloniously, wickedly, and against the order of nature, to commit a detestable offence. Remanded until Wednesday, bail allowed.

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Depositions for Richard Massey 27 Feb 1874 Sydney trial ²

Attorney General’s Department
39
19/1/74

(M., 11 & 12 Vic., Cap. 42.)

New South Wales,
TO WIT. }
The examination of Constable John Cox of the Police Force in the Colony of New South Wales, taken on oath, this 10th day of January in the Year of our Lord one thousand eight hundred and seventy three at the Central police Court Sydney in the Colony aforesaid, before the undersigned two of Her Majesty’s Justices of the Peace for the said Colony, in the presence and hearing of Richard Massey who is charged this day before me, for that he the said Richard Massey did, on the 4th day of January inst. At Sydney in the said Colony, feloniously make an assault upon one William Leken with intent feloniously, wickedly, and against the order of Nature to commit upon him the abominable and detestable crime of buggery.

Richard Massey

Felonious assault with intent to commit buggery.

Constable John Cox, on oath states, about quarter to one yesterday afternoon, by virtue of this warrant, (I arrested the prisoner before the court) wherein he is charged “that he on the 4th instant did at Sydney feloniously assault one William Leken with intent feloniously, wickedly, and against the order of Nature to commit upon him the detestable and abominable crime of buggery.” In reply to the charge, he said, “Where am I to go then – am I to go with you?” On his

On his [sic] way to the Station he said that he’d get out of it, as he did before, that Mrs Potts was at the bottom of it. She got a warrant for him before, and she had got nowhere, but he would get out of this too!

[Signed] John Cox, Central Police Office Sydney, 10th instant 1874.

Sworn before me.
[Signed] D[avid] C[harles] F[rederick] Scott, Frank S [Francis South] Fielder, JP.

Postponed to Wednesday next at 11 o’clock. Bail allowed one in hundred pound, two in thirty pounds or one in one hundred pounds.
[Signed] DCF Scott, Frank S Fielder, JP.

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(M., 11 & 12 Vic., Cap. 42.)

New South Wales,
TO WIT. }
The examination of William Leken of Sydney in the Colony of New South Wales, Myles Egan, Medical Practitioner, Jane Potts of Sydney, Minor, Peter Manson of Sydney (Minor) and Clara Potts of Sydney in the said Colony, Spinster, taken on oath, this 14th day of January in the Year of our Lord one thousand eight hundred and four at the Central Police Court 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 Richard Massey who is charged this day before me, for that he the said Richard Massey did, on the 4th day of January inst. At Sydney in the said Colony, feloniously make an assault upon the said William Leken, with intent feloniously wickedly and against the order of nature to commit upon him the abominable and detestable crime of buggery.

William Leken on oath states:– I am nine years old and live with my Grandmother in Mary’s Lane, Sydney. I know the prisoner. I have known him about one week. I met him first behind some trees in a paddock near Terry Hughes’s Paddock. The information now read is true, deponent now present is the person I alluded to therein – it was last Sunday week, the 4th, when I first met him, nearly 4 o’clock in the afternoon. No other person was present at the time – he spoke to me first – he asked me to come and play with him, he then jumped upon me, and did it to me – he did nothing to me (before ?). Prisoner made holes in the grass with a pen knife for me to put my private in. I was lying on my belly on the grass and he got on top of me. He said if I sang out he’d cut my head off. He took down my braces. He did bad to me like a man and woman I have been told that a man and woman do so by (?) in “Terry Hughes’s paddock.” The day after prisoner did it to me I was told the big boy who told me saw the prisoner doing it to me and to me it was bad. I don’t know his name. The first person I saw afterwards was a big boy – I don’t know his name. I did not say anything to him about it. The

prisoner was with me about half an hour after he did it. He only did it once on that day. He has done it four times altogether. He did it first on Sunday, then on Monday and then on Saturday. He also did it again on the next Monday evening. I mentioned it to nobody but the big boy spoken of. I went home on the day I complained of about 5 o’clock. I saw my Grandmother, I made a complaint to her: Grandmother did not do anything. A good woman named Mrs Potts examined me. My Granny sent me there. I was selling wood for the Potts, I told her something and she then examined me. I laid a complaint the day afterward. I felt his private parts, he put his person in my bottom. I never complained about my bottom being (sore ?) before defendant did it to me. It was afterwards I walked uneasily. Afterwards I had a good deal of pain. Defendant did not offer to give me anything. I expected nothing. Since I laid this information I have been in care of the police. I would know the big boy spoken of if I should see him again.

By Mr Carroll: All I have said is the truth.

The person I speak of is my Granny. She tried to put me on the person. She complained about my staying out with bad boys and staying out all night. I am not a great liar, I never tell my Grandmother lies. I saw Mrs Potts today, sitting on one of the forms in the passage outside the court. I did not speak a word to her. She did not speak to me – she did not take me by the hand. I did not ask her “what’ll I say, Mrs Potts?” I was not at church that Sunday I was at church on that morning. I went to St Francis at 7 o’clock with my Granny. I came back home with her at 8 o’clock. It was nearly 10 o’clock when I went to Hughes’s paddock. I go there every Sunday. I left the paddock at about dinnertime at about 12 o’clock. At 3 o’clock I went to Hughes’s paddock. It would take me half an hour to go to Hughes’s paddock. It wouldn’t take me four minutes, it would take me three minutes. I got there a little after 3 o’clock. Defendant came over to me about 4 minutes after I was there. No-one was with him at the time. I did not see the man named Waters there, now in court. He was not there. Another

big boy there. I have 4 brothers. I have 3 brothers. The bad thing of this kind took place between my brothers and myself. My Grandmother never charged me with such an offence. I knew I was doing wrong to allow him to do it to me. He did it “unknownst” [sic]. He came behind me; I was on my knees and he knocked me down. He did it “unknownst” to me. The other three times I knew I was doing wrong. I never do anything wrong myself. I do not know Mrs Martin. I know the person now in court – her name is Mrs Martin. She never caught me handling my person in any indecent manner. I used to go to St Francis and help her to clean the place out. She never caught me doing anything improper or spoke to me about it. I cannot be mistaken. I know a Mrs Hodge. She lives in Mary’s Lane. She never accused me of having been guilty of any indecent conduct with my brothers. She never caught me at it. I spoke to Mrs Potts on the next Tuesday night; that was after he had done it 4 times. He did it to me in Terry

Hughes’s paddock the second time on the Saturday after Sunday. He did it to me after I spoke to Mrs Potts. He did it to me the second time “unknownst” to me. There was no-one there present. He did it where no-one was. I knew I was doing wrong. The following Monday he did it to me again about 4, inside Terry Hughes’s Brewery. He did not ask me to meet him there. He did it the third time “unknownst” to me. I know it was wrong. About 4 o’clock on the next Tuesday he did it again “unknownst” to me. A policeman did not come and take me away from Mrs Potts today. I was not speaking to her. I know Mrs Sullivan. I never put my hands up little girls’ clothes. Mrs Sullivan did not speak to me about it. I never spoke to Mrs Potts about it. She spoke to me. I never answered her, I did not say a word. I never opened my lips on any occasion to her about it. She was telling me about what Massey did to me. She told me what he did. That’s all she said. She spoke to me 3 or 4 times. I afterwards told her what he did. She has spoken to me today at the court. She told me Massey had done bad to me. She told me

that Massey had done it to her at her own place. She said she got him to sell wood for her and he used to do it to her at night. In the court or outside the court she told me Massey did it to her and that he was doing it to the “Nawies”. When I said I never spoke I did not. She spoke to me, I was listening to her. A policeman did not take me away. She did not catch me by the hand today. She gave me sixpence one Saturday. She has given me nothing today. Mrs Logan, Mrs Sullivan, Mrs Lake, Mrs Osborne and Mrs Martin were there when she was talking to me. I did not ask Mrs Potts, in the court today, what I should say. Every time Massey did it he did it “unknownst” to me. I mean by “unknownst” that he did it without my seeing him. I went to the paddock the second time. I did not know he’d be there. After that the big boy told me. I went there three time afterwards. My Grandmother’s name is Mary Leken. Mrs Potts came to my place about Massey. She told Granny about Massey – what he’d done to her and that he’d robbed her out of two pounds sixteen and ninepence. She also told

her that he’d stabled a horse. She came 3 or 4 times to my Granny to tell her about these things. It was after this that I went to the police. I went to the paddock about 3 o’clock on the Sunday in question. I was in there from 3 till 5. I then went home.

By Bench: I saw defendant about 5 days after the Sunday in question. He asked me to come and play with him. He did not do anything to me on that day. I told him I would not play with him. He took me by the hand and we played pen knife; that is he tossed the pen knife up and it fell and stuck in the ground. I heard Mrs Potts tell my Granny that he had done bad to her.

[Signed] William (his X mark) Leken, Central Police Station Sydney 14th January 1874.

Sworn before DCF Scott & S Myer, JP.

Myles Egan on oath states: I am a duly qualified medical practitioner of the Board of New South Wales.

I examined prosecutor on the 9th instant and found the mucous membrane of the anus tender and red – the anus itself was more open and expanded than ordinary – such a state of affairs might have been caused by an offence such as has been alluded to, it might have been caused by violence and of a recent date – the tenderness and redness might have been caused by dysentery or diarrhoea – the expansion could not have been caused by them – the symptom might have been caused by violence instead by the boy himself.

[Signed] M Egan. Central Police Court Sydney 14th January 1874.

Sworn before DCF Scott.

William Leken recalled on oath states: I saw the prisoner outside Terry Hughes’s in a wood truck at the railway department. Brother Bill was there. I did not see Peter Manson there I went to the railway with him. He put me on the truck. I said “He never did anything to me except in Terry Hughes’s paddock. That was there he did it to me. At the railway in the truck at about 4 o’clock in the afternoon. He never did it at any other time. I am positive of that. He saw me once at Mrs Potts. He did nothing to me then. It was about a month ago that he did it to me at the railway. Then I came home from school. He never did anything to me. At about 12 o’clock on the railway. The witness Peter Manson had not told the truth. If he saw the defendant on top of me at about 12 o’clock on the railway.

[Signed] William (his X mark) Leken.

Sworn at Sydney 14th January 1874 before S Myer, JP.

Jane Potts on oath states: I am a widow. I reside in Mary Street near Terry Hughes’s. I keep a wood and coal yard. I know complainant and defendant. About 4 weeks ago the boy Leken came and made a complaint to me. He was crying – he said he could not make water or go to the closet. I sent him to his grandmother. I examine his bottom, it was quite red. I am the mother of 18 children. From what I saw, I concluded he had been misused.

By Mr Carroll: I have no ill feeling against the prisoner. I prosecuted him for stealing a horse. I did not say I’d give 50 pounds to have Massey punished. I never said anything to Manson about the prisoner. I did speak to him. I sent Leken home to his Granny. That was all I said to him. If the complainant Leken has sworn that I told his Granny that Massey had connection with me it is a lie. I have been sitting on the form in the passage of the court today. I cannot be mistaken, I never spoke a word to him today. Defendant would not be

game to do anything to me. I’d knock him over. He never did it to me in any way. I have talked to the grandmother. I decline to answer whether I am at the bottom of this prosecution or not. I told the grandmother she ought to prosecute the prisoner. Complainant! Grandmother said she had no money but she borrowed six and sixpence today for the warrant. I had no further conversation with the boy’s grandmother about it. I never told the boy the complainant. (?) Grandmother that Massey had done it to me. I have not spoken to any of the witnesses today. I never told the boy that prisoner used to do it with the “nanny goats”.

[Signed] Jane (her X mark) Potts.

Sworn at Sydney 14th of January 1874 before me
[Signed] S Myer, JP.

Peter Mancell [sic–Manson] on oath states: I reside with my parents at Barton Street. I know the complainant and the prisoner. I have seen them together about a month ago in a wood truck at the railway. The truck belonged to Mrs Potts the woman he was working for. I never saw them together on any other occasion. When I saw them in the truck prisoner was lying on top of the little boy, the complainant. I saw the prisoner get off him and get on his cart and I then saw the little boy buttoning up his trousers. The truck was a railway truck. I said nothing to them. They said nothing to me. I was then working for Mrs Potts at 3 shillings per week. I was watching wood for her. Prisoner had been working with her about 3 weeks before. They went home in the cart together. I did not know what they were doing. I heard prisoner was charged with doing this about 3 weeks ago. I know they were doing bad and I told Mrs Potts about a week afterwards. I had no conversation with the prisoner about it.

By Mr Carroll: I appeared to give evidence against the prisoner when Mrs Potts charged him with stabbing

a horse. He was discharged. I am not in Mrs Potts’ employ. I left her before Christmas. I never spoke a syllable to Mrs Potts about this case, neither did she speak to me. I told Mrs Potts about what they were doing. She said she’d put Massey in gaol for stabbing a horse. I never spoke to anyone else about it. There were two or three men about 200 yards away from the defendant and complainant when I saw them at the railway – it was about 12 o’clock; in the truck. I was about 100 yards away. About a week before that I saw them playing Tally Ho in Terry Hughes’s paddock. I said before I saw them once together, but I saw them twice. It was about 2 weeks before Christmas. I saw them at the railway. I told no-one but Mrs Potts about it. I know defendant’s little brother. I told Mrs Potts about it a week after. I do not tell lies. I am not at work; I do not go to school and never go to Terry Hughes’s paddock. I never go there; I used to go. I never was there. I used to go to drive a horse out for Mrs Potts.

[Signed] Peter Manson. Signed at Sydney 14th January 1874 before S Myer, JP.

Clara Potts on oath states: I reside with my mother. I know the prisoner and the complainant. I remember complainant coming to my mother about 3 weeks or a month ago. He made a complaint to her. My mother examined him. I was present. My mother looked at his bottom, it was all red and sore. It presented an appearance as if it had been injured.

By Mr Carroll: I am not married; the child in my arms is mine. I gave evidence in the case of stabbing a horse against the prisoner. When I saw the complainant that; with what he told me, made me believe something was done to him. I believe it was on a Friday. Prosecutor stopped at my mother’s place about a week after this. He has left my mother’s employ about a fortnight since.

[Signed] Clara, her X mark, Potts.

Sworn at Sydney 14th January 1874 before S Myer, JP.

Case remanded till tomorrow. No bail allowed.
[Signed] S Myer, JP.

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(M., 11 & 12 Vic., Cap. 42.)

New South Wales,
TO WIT. }
The examination of James England of Sydney in the Colony of New South Wales, and Mary Leken of Sydney in the said Colony, widow, taken on oath this 14th day of January in the Year of our Lord one thousand eight hundred and seventy four at the Central Police Court 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 Richard Massey who is charged this day before me, for that he the said Richard Massey did, on the 4th day of January inst. At Sydney in the said Colony, feloniously make an assault upon one William Leken with intent feloniously wickedly and against the order of nature to commit upon him the abominable and detestable crime of buggery.

James England on oath states: I live with my father and mother in Mary’s Lane. I know the complainant and the prisoner. I saw them together on last Sunday week inside Terry Hughes’s brewery. I was outside the brewery. I saw them going in just after dinner about half past one.

By Mr Carroll: I know Mrs Potts – she has not spoken to me about this case. I never told anyone that I saw them together until Senior Constable Broomfield asked me about it. I did not go to church on the Sunday referred to. I left my house about quarter past one. About quarter of an hour after I saw the prisoner in Terry Hughes’s paddock.

[Signed] James England.

Sworn at Sydney 15th January 1875 [sic–1874]
[Signed] S Myer, JP.

Mary Leken on oath states: I am a widow residing in Mary’s Lane. The complainant is my grandson. He has been living under my care for the past 13 months. I know the prisoner by I know the prisoner about a fortnight. He was living in my neighbourhood. My grandson made a complaint 2 months ago to me. He said his privates were very sore. I wanted to examine him but he ran away. About 3 weeks after that he complained that he could not pass his water. Two nights after that I heard a noise in complainant’s bed. He was sleeping with his brother, 5 years of age. I suspected that he was doing something wrong to his brother. I’m sure he was having connection with him. Brother and I went in and caught him at it and struck him in the head with a cane. I asked the younger child next morning and he told me what had occurred. I accused complainant of it next morning. He said, “I can’t help it. Dick showed me how to do it. He did it to me.” He made no complaint to me about prisoner.

By Mr Carroll: The complainant would not do anything for me. I never told Mrs Logan that Mrs Potts put me up to prosecute prisoner.

[Signed] Mary (her X mark) Leken.

Sworn at Sydney 15th of January 1874 before S Myer, JP.

Defence

Barbara Sullivan on oath states: I am a widow residing in Albion Street. I know the complainant and the prisoner. I know Mrs Potts by sight. I know complainant’s grandmother. She told me that Mrs Potts the fat woman put it in to her grandson’s head and told him what to say to the police. I have seen the little boy (the complainant) running after little girls, and putting his hand up their clothes and when I ran after him he has turned round and called filthy names. I have always found the prisoner a quiet hard working boy.

[Signed] Barbara Sullivan.

Sworn at Sydney 15th January 1874 before S Myer, JP.

Thomas Osborne on oath states: I reside in Mary Street. I know the prisoner. I know Mrs Potts by sight. I heard her say that – “if it costs her fifty pounds she’d have the boy.” This was after the horse stabbing case was over.

[Signed] Thomas Osborne.

Sworn at Sydney 15th of January 1874 before S Myer, JP.

Margaret Martin on oath states: I am a widow and reside at Albion Street. I know the complainant. He used to help me to clean up the church of St Francis. I have seen him handling himself in a very indecent manner (?) had to check him.

[Signed] Margaret, her X mark, Martin.

Sworn at Sydney 15th of January 1874 before S Myer, JP.

Henry Waters on oath states: I am a dealer. I live in Mary Street. I know the prisoner. I know Hughes’s paddock. On last Sunday week I was with the prisoner at Hughes’s paddock, we went out together at about 3 o’clock on that day to the paddock and we came back at 5 o’clock. He was about my place and his home all day up to 3 till we went to the paddock. He was not away from me between 3 and 5 o’clock. I know complainant, I did not see complainant in Hughes’s paddock on that day. Prisoner could not have done anything to complainant or even spoken to him on that afternoon without my seeing him. He did not do so, I never saw prisoner doing anything wrong.

[Signed] Henry (his X mark) Waters.

Sworn at Sydney 15th of January 1874 before S Myer, JP.

Bridget Seymour on oath states: I reside in Castlereagh Street. I have been taking care of a house in Mary Street. Prisoner was living there too. I was there on the 4th (Sunday). I swear the prisoner did not go out from 10 o’clock until between 2 and 3. He then went out with a man who lives next door and came back with him about 5 o’clock.

[Signed] Bridget (her X mark) Seymour.

Sworn Sydney 15th of January 1874 before S Myer, JP.

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(N., 11 & 12 Vic., Cap. 42.)

New South Wales,
TO WIT. }
Richard Massey stands charged before the undersigned one of Her Majesty’s Justices of the Peace for the Colony aforesaid, this 15th day of January in the Year of our Lord one thousand eight hundred and seventy four for that he, the said Richard Massey did on the 4th day of January inst. At Sydney, in the said Colony, feloniously made an assault upon one William Leken with intent feloniously wickedly and against the order of nature to commit upon him the detestable and abominable crime of buggery and the examination 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 made have been holden out to him to induce him to make any submission 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 Richard Massey and the witnesses for the prosecution being severally examined in his presence, the said Richard Massey 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;” whereon the said Richard Massey saith as follows:– “I’m not guilty. I have witnesses to call” Taken before me, at Sydney in the said Colony, the day and year first mentioned above.

[Signed] S Myer, JP.

Prisoner is committed to take his trail at the next Criminal Court. Bail refused. Dated 15th of January 1874.
[Signed] S Myer, JP.

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(B.)

Warrant to apprehend a Person charged with an Indictable Offence.

To the Inspector and, a Constable in the Police Force for the Colony of new South Wales, and to all other Constables in said Force. Whereas Richard Massey of Sydney, in the said Colony, has this day been charged upon oath before the undersigned one of Her Majesty’s Justices of the Peace in and for the said Colony of New South Wales, for that he on the 4th day of January now instant, at Sydney, in the Colony, did feloniously assault William Lehen with intent feloniously wickedly and against the order of nature to commit upon him the detestable and abominable crime of buggery. These are therefore to command you, in Her Majesty’s name, forthwith to apprehend the said Richard Massey, and to bring him before me or some other of Her Majesty’s Justices of the Peace in and for the said Colony, to answer unto the said charge, and to be further dealt with according to Law. Given under my hand and Seal, this ninth day of January in the Year of our Lord one thousand eight hundred and seventy four, at Sydney, in the Colony aforesaid.

[Signed] DCF Scott, Justice of the Peace.

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[On the reverse of above Warrant is the following handwritten note:]

Richard Massey Apprehended by constable Cox 9th January 1874.

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Information – (General Purposes.)

New South Wales,
TO WIT. }
Be it remembered, that on this ninth day of January in the Year of our Lord one thousand eight hundred and seventy four at Sydney in the Colony of New South Wales, William Lehen 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 fourth of January in the Year of our Lord one thousand eight hundred and seventy four at Sydney one Richard Massey did feloniously make an assault upon this informant with intent feloniously wickedly and against the order of nature to commit upon him the detestable and abominable crime of buggery contrary to the Act in such case made and provided; whereon the said William Lehen prays that I, the said Justice, will proceed in the premises according to law.

[Signed] William (his X mark) Lehen.

Sworn at Sydney in the said Colony, on the day first above written, before me,
[Signed] DCF Scott, Justice of the Peace.

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(O. 1, 11 &12 Vic., Cap. 42.)
Recognizance to Give Evidence

Gaol Delivery

New South Wales,
TO WIT. }
Be it remembered, that on the fifteenth day of January in the Year of our Lord one thousand eight hundred and seventy four John Cox, a Constable of the Police Force, William Lahen, of St Mary’s Lane of city of Sydney, in the Colony of New South Wales, James England of Mary’s Lane in said City in the said Colony, and Jane Potts of Mary Street City and in the said Colony, widow personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledge 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 endorsed. Taken and acknowledged, the day and year first abovementioned, at Sydney in the said Colony, before me.

[Signed] DCF Scott, JP.

The condition of the within written recognizances is such, that whereas Richard Massey was this day charged before S Myer Esquire, one of Her Majesty’s Justices of the Peace for the said Colony, with “buggery” if therefore, they the before mentioned persons shall appear at the next Court of Gaol Delivery to be holden at Darlinghurst in and for the Colony of New South Wales, on the 16th day of February next, at 9 o’clock in the forenoon, and then and there give such evidence as they know, upon the information to be then and there preferred against the said Richard Massey for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Richard Massey then the said recognizance to be void, or else to stand in full force and virtue.

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(O. 1, 11 &12 Vic., Cap. 42.)
Recognizance to Give Evidence

Gaol Delivery

New South Wales,
TO WIT. }
Be it remembered, that on the fifteenth day of January in the Year of our Lord one thousand eight hundred and seventy four Clara Potts, of Mary Street in the city of Sydney in the Colony of New South Wales, Spinster and Mary Lehan of Mary’s Lane, City in the said Colony, Widow personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledge themselves to owe to 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 successors, if they the said before mentioned persons shall fail in the condition endorsed. Taken and acknowledged, the day and year first abovementioned at Sydney in the said Colony, before me, DCF Scott, JP.

The condition of the within written recognizances is such, that whereas Richard Massey was this day charged before S Myer, one of Her Majesty’s Justices of the Peace for the said Colony, with “buggery”. If therefore, they the before mentioned persons shall appear at the next Court of Gaol Delivery to be holden at Darlinghurst, in and for the Colony of New South Wales, on the 16th day of February next, at 9 of the clock in forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said Richard Massey for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Richard Massey then the said recognizance to be void, or else to stand in full force and virtue.

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(O. 1, 11 &12 Vic., Cap. 42.)
Recognizance to Give Evidence

Gaol Delivery

New South Wales,
TO WIT. }
Be it remembered, that on the 15th day of January in the Year of our Lord one thousand eight hundred and seventy four Peter Mawson of Number 11 Burton 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 himself to owe our Sovereign lady the Queen the sum of forty pounds 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 he the said before mentioned person shall fail in the condition endorsed. Taken and acknowledged, the day and year first abovementioned at Sydney in the said Colony, before me.

[Signed] DCF Scott, JP.

The condition of the within written recognizance is such, that whereas Richard Massey was on the 15th day of January Instant charged before DCF Scott Esquire one of Her Majesty’s Justices of the Peace for the said Colony, with “Buggery” if therefore he the before mentioned Peter Mawson shall appear at the next Court of Gaol Delivery to be holden at Darlinghurst, in and for the Colony of New South Wales, on the 16th day of February next at 9 of the clock in the forenoon, and then and there give such evidence as he know, upon an information to be then and there preferred against the said Richard Massey for the offence aforesaid, to the jurors who shall pass upon the trial of the said Richard Massey then the said recognizance to be void, or else to stand in full force and virtue.

[Signed] DCF Scott, JP.

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[On the depositions cover sheet is the following]

15 January 1874
No. 28
Depositions. No. 9
Regina v. Richard Massey
Sodomy
Sydney Gaol Delivery
16th Feb:
Sydney Gaol Delivery Feb: 74
Sodomy
20/1/74 [initialled] JGLI [Joseph George Long-Innes] AG
Not guilty Discharged JGLI [Joseph George Long-Innes, Attorney General]
27/2/74
Central Police Court

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Justice J Martin’s Notebook ^{3 4}

150

[Sydney] Tuesday 17th February 1874
…

151

…
Reg v. Robert Massie, Sodomy. Arraigned pleaded not guilty.

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Justice J Martin’s Notebook ⁵

[Sydney] Friday 27 February 1874

Regina v Richard Massey. Sodomy.

This case (proceeded ?) with (?) jury (?)
G[eorge] M[ilner] Stephen for the Crown
W Buchanan for the prisoner
Stephen states case & calls

1. Witness John Cox a constable in the Sydney Police. I know the prisoner. I arrested him on the 9th January last in (Gibbes ?) St. I read the warrant to him, he said am I to go with you – He said on his way to the watch house – He was innocent. Mother Potts was the cause of it. She had got a warrant for him before & he had got out of it and would get out of this as well.

Cross-examined by Buchanan. The charge was buggery – alleged to be committed at Sydney on the 4th January in Mr Hughes’s paddock – I recollect that prisoner said (?) Mr (Harker ?) had prosecuted him. I heard that on that occasion the case against the prisoner was dismissed. The case at the (hearing ?) (for ?) an offence committed on a day different from that stated in the warrant.

2. Witness William Leken. I am 9 years of age. I live in Mary’s Lane in Sydney with my grandmother. Her name is Mary Leken. I go to school every day. My grandmother washes for a living. I know prisoner. The prisoner earns

his living by selling wood. He gets it from the railway. He was in Mrs (?) employment. He had not been in any other employment. I have not known him long. I first knew him better than two months ago. I saw him at the railway station – on a Friday evening two months ago – it was before Christmas – I was playing there. He was getting wood at the railway. The wood was in a truck. He did bad to me. I was in the railway getting wood with Mrs Potts. I was playing about in paddock. He took me up into a brewery – He did bad to me at the railway station in a truck. He took me and put me in the truck – it was about 4 o’clock in the afternoon.

He was outside the truck and put me in – He did bad to me. He got up into the truck and did bad to me. He did like a man and woman. He took my clothes down. He did nothing to his own clothes. He chucked me on my hands and knees. Prisoner’s little brother was there too – I don’t know his brother’s age. He is as big as I am. I saw what prisoner was about when he put me on my hands and knees. I tried to get up and he pushed me down again. I saw his private parts – between his legs. I felt something up in my bum. I felt it while he was doing it to me. He moved upwards. He did not move in any other way. He was doing it about a minute on this occasion.

He let me go. I buttoned them up. He buttoned his own trousers. He did not take them down. The truck was over on the exhibition side of the railway station. There were a whole lot of trucks on one side. Prisoner’s little brother was in the truck. He was there when I got in. I felt something while he was doing it. It hurt me inside my bum – I was examined afterwards by Mrs Potts and her daughter – this was about a month after the occurrence in the truck. I used to be in pain when I went to make water. I couldn’t walk quick because he did bad to me – black congealed blood came from me. Mrs Potts saw it. I know a boy named Peter Mansell. I saw him and (Jimmy ? passim) England jumping from one truck to another.

I saw those two boys after he did this in the truck. I went over to Mrs Potts and told her. I had to get down from the truck easy – I went home to my grandmother’s – I saw her and spoke to her this afternoon. It was 4 o’clock when I did it – I asked his brother the time afterwards. I go home from school at 4 o’clock. I had been to school that afternoon – I went home first and then to Mrs Potts and then to the railway in her cart. I got out of her cart. She remained in her cart. She was over getting wood when prisoner was doing bad to me – over at the other trucks at the other side of the railway. Jimmy England was the (size ?) of prisoner’s brother.

Cross-examined by Buchanan. This was the first time this was done – the same kind of thing was not afterwards. It was done four times – this was the first time – it was done at Terry Hughes’s on a Sunday before this – a week before – that was the second time – he did it to me in the truck at the first time – in the truck was the first time – Terry Hughes’s paddock was the second. At the back of Terry Hughes’s was the third. The fourth was in an empty house in a lane. I did not always go of my own accord – He took me to the empty house. I cried out. There was nobody about. When I went home from the truck I went home with Mrs Potts & spoke to her about it on the way home in the cart.

The truck where this was done to me was under a shed. Prisoner was getting wood there. He bought the wood from Mr Raven. Raven was up at the other end of the trucks, a good way up. Mr Raven gave him the wood – a truck of wood – prisoner put me in the truck he bought when he had it half empty. There were long slabs of wood in the truck. Prisoner put the wood in his cart. Two cart loads were taken out of the truck when this occurred. I knew what a man and woman do. Mrs Potts did not say anything to me. Congealed is black. Nobody told me that. I (said ?) (out ?) my own head that it runs black, congealed blood – I am sure I am telling the truth. I (used ?) these nobody

(telling ?) me – I never heard the words (?) black congealed blood used by anyone. The next day this was done to me in truck I went to the Police. This occurred in the truck on a Friday about 2 months ago. I went to the Police on a Saturday – I went by myself. Mrs Potts never told me what to say – nor to go to the Police. She did not tell me anything. She said nothing – not a word – when I told her what had been done to me – I used to be talking to her about it about 4 weeks. (Certainly ?) every day – Mrs Potts did not tell me to go to the Police. Nobody told me. I went by myself. I went to the Christchurch watch house and told one of the Policemen. The affair in Mr Hughes took place the day after the affair in the truck.

(I ?) (was ?) not in charge of the Police the day after – the affair took place in Terry Hughes paddock on the Sunday. This was after I saw the Police – on Friday it was done in the truck, on Saturday I complained to the Police – on Sunday he did it again. This was a whole lot of days – a fortnight before Christmas. I can’t tell the day of the month it was done in Mr Hughes’s paddock.

I recollect this X mark – shewn to him – I did say that I met him in Mr Hughes paddock on Sunday the 4th January. The affair in the truck was on the first of same month. It was the first of January. I was examined by Mrs Potts when I went home from the truck. I went to my

grandmother and she sent me over to Mrs Potts. I told Mrs Potts that prisoner had done bad to me. I knew what men and women do without (telling ?). Mrs Potts stripped me and all this congealed blood came. Mrs Potts never mentioned it. I never did this to anyone. Mrs Potts told me that Dick did it to her – I am living with Mrs Potts and have been living with her for the last five weeks. Prisoner was taken by the Police on the Saturday that I complained to the Police & locked up. I was taken up before prisoner – I never did that to my own brother – nor any brother to me. Mrs Potts has not told me what to say here – she never told me she would do for prisoner. Her daughter did not say so (deposition of witness at Police Office read).

Re-examined. The first time he did bad was on Friday in the truck. I was taken up before the prisoner.

My grandmother got me taken up to be sent to the (?) I was discharged – after that the Police came for me. Mr Carrol examined me at the Police Office – He did not ask me questions at the Police Office – no one asked me questions there – I don’t know what is meant by asking questions. I made a complaint at the Police Office – I never made a complaint before that. I went to the watch house. I have lived with Mrs Potts since the affair in the truck. I lived with her about a fortnight after I went to the Police office. I used to live with my grandmother & she sent me to Mrs Potts to live. I was troubled with pain (?) (?) at this time the pain was in the bottom & in the belly.

3. Witness Myles Egan. Duly qualified medical practitioner residing in Sydney. I examined that child (prosecutor)

on the 9th January last. He did not complain of anything particular. I examined the child at my own house. I examined his anus, found it very red tender & (ruptured ?) (wrinkled). The anus was much more open than is usual in a child of that age. These symptoms could have been caused by the penetration of a man’s person – I should have expected to find such appearances after such penetration. I would not expect that it would interfere with his walking. The inflammation was confined to the anus.

Cross-examined by Buchanan. It would depend upon circumstances whether or not these appearances would be presented 8 or 9 days afterwards. I am not prepared to say that (diarrhoea ?) would produce the appearances I saw.

Bowel complaint continued for anytime might have produced the inflammation, but I am not prepared to say that it would have produced the expansion. Dysentery might have produced the appearances. Bowel complaint might produce the appearances.

Cross-examined by a Juror. I had been told that this offence had been committed on the boy before I examined him.

Re-examined. The boy had no piles. The distended appearance I would not expect to be produced by bowel complaint.

By a Juror. I observed no signs of diarrhoea or dysentery. If there had been (protrusion ?) of the anus in diarrhoea then appearances which I saw might have been presented. I would have looked at the appearances as suspicious if I had not been told

of the offence.

By Buchanan. The expansion of the anus would only last a few hours after one act of connection – after several such acts it might last for some days. Eight days after the act in a child like that if the acts were several – then expansion might remain.

Re-examined by Stephen. Inflammation causes a secretion of the blood from these parts.

4. Witness Peter Mansell. 12 years old. I live with my mother in Barton [Street] near Oxford Street Sydney. I have lived there 3 years. I go to school every day – I have worked in a tobacco factory. I know the prisoner. I have known him since I have been working in the wood cart for Mrs Potts. I was working for her about two months (ago ?) before Christmas.

I know the little boy (Leken). I knew him when I was working for Mrs Potts. I saw him and the prisoner at the Railway near each other, close alongside of one another in a truck. I was on the opposite side in a truck minding wood for Mrs Potts. She was taking the wood home. Prisoner was on top of Leken, the little fellow was lying down, the big fellow was on top of him. They were doing bad – I saw them. I saw the two of them together. The little fellow had his clothes down and the big fellow had his trousers unbuttoned. The little was naked – his trousers were down behind. I could see the big boy’s trousers unbuttoned.

I could see no more. The prisoner made the little fellow lie down and then he got upon him. I could see the big fellow’s back and the little fellow’s hands out straight. The big fellow behind was moving up and down. I can’t tell the day of the month. I think it was a Tuesday – because they have a sale of wood – on Tuesday and Friday – I think it was on a Tuesday. It was before Christmas.

Cross-examined by Buchanan. I was about 100 yards away. I could see all this 100 yards off and they in the bottom of the truck. The truck was down near the gate. It was not under a shed. The truck I was in was out under a shed. There were many trucks between me and the prisoner full of wood. I heard no crying (out ?). I don’t live with Mrs Potts. I was living with her then.

There was no truck between (mine ?) and where the boy & the prisoner were. It was about 12 o’clock. I did not make (any ?) complaint of this. I never said a word. Mrs Potts did not speak to me. I was at her place and Mr Cox came and gave me a subpoena. I told Mrs Potts that I had seen Billy and Dick lying on top of one another. I saw them in the truck. There was nothing in the truck they were in – no wood. I was standing on the top of some wood in another truck – I never spoke to John Devine about this matter. I spoke to Mrs Potts about it the day it happened (Devine called in). That is Devine. I never spoke to him

about this matter. I did not say to Devine that Mrs Potts had offered me 10/- to say what I have said here. I never had any connection with Devine – I was examined at the Police Court. I stated there everything I have stated here today – I (swore ?) that day to this. I have never spoken to Mrs Potts.

Cross-examined by Stephen. I said at the Police Office the same as I said today.

Re-examined by Buchanan. It was at (1 pm ?) this occurred. I am sure it was not 4 o’clock.

Re-examined by Stephen. The distance that I was from prisoner & Leken was about the width of this Court. The trucks were on iron rails – The truck I was in was on a different line of rails from the line on which the truck in which the prisoner was situated.

Mansell recalled by (a Juror ?). I know where the goods shed is – the truck in which the prisoner was was a little more than the width of this room from the goods shed. The truck in which I was was near the station. The truck I was in was farther from the (?) (?) than twice the width of this room.

By another Juror. I entered the station from the Rotary (Saw ?). I took my wood from left hand side – the prisoner in the truck on the right hand side. The trucks were not between the Railway station and the Exhibition building.

Case for the Crown is closed.

Defence

1. Witness John Devine. I draw wood from the Railway – I (?) (?). I know Mansell. I have had conversation with Mansell. (Cox ?) another boy was present. He told me that Mrs Potts offered him half a sovereign to swear he saw the boy do it.

By Mr Stephen. I have known the boy about 9 or 10 months – I draw wood for my mother now – my father is now dead. I was (?) up today – for my mother.

By a Juror. The boy did not tell me he took the half sovereign.

2. Witness Henry Waters. I know the prisoner. I recollect Sunday 4th January. I was with prisoner that day in Mr Hughes’s paddock. I left home about 3 o’clock in the afternoon. I saw prisoner the whole of that day at (home ?) (?) & (?).

I went with him to Mr Hughes’s paddock. We came home together – I did not [see] Leken. Prisoner could not [have] done this act on that Sunday without my seeing it. Mrs Seymour was (in ?) prisoner’s place when we went back.

Cross-examined by Stephen. I was examined (& ?) the prisoner at the Police office. I can’t tell what day I was examined at the Police office.

By a Juror. Mrs Seymour’s little boy was in company with prisoner when I asked him on the Sunday where he was going to.

3. Witness Bridget Seymour. I know witness Waters. I recollect a Sunday – I don’t know it was the 4th. Prisoner & Waters went away after two – they came back together

close upon tea time. The prisoner had not been away that day to my knowledge – till he went away at 2 o’clock – I don’t think he could [have] been away without my knowing it.

4. Witness Mary Leken. I am the grandmother of prosecutor Leken. He is not a well behaved boy. He has got beyond my control.

5. Witness Jane Potts. I have employed both these little boys and the prisoner. He left because he kept the money for the wood. I never told the boy Leken that prisoner had done the same thing to me.

Cross-examined by Stephen. I examined the little boy’s person. He complained that he could not make water. He was sore all over.

6. Witness Barbara Sullivan. I keep a shop. I have known the prisoner 13 months as a hard working good boy – never goes out

100

at night. I would not believe Leken on his oath. I have seen him at (?) trucks. His grandmother deals with me. I never spoke to Mrs Potts about him.

7. Witness Margaret Logan. I am a married woman. I have known the prisoner 18 months. He has a good character is hard working and well behaved.

8. Witness Margaret Martin. I don’t know the prisoner. I know Leken. I would not believe him on his oath.

Case for Defence closed.

Buchanan addresses the Jury.

Jury retires & on their return find the prisoner not guilty & he was discharged.

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Empire, Sat 28 Feb 1874 ⁶

CENTRAL CRIMINAL COURT.
FRIDAY. [27 Feb 1874]
————
(Before his Honor the Chief Justice, Sir
James Martin.)

Mr GM Stephen prosecuted for the Crown.

UNNATURAL CRIME.

Richard Massey was charged with having committed an unnatural offence.

Mr Buchanan, instructed by Mr Carroll, defended the prisoner.

The jury found verdict of not guilty, and prisoner was discharged.

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The Sydney Morning Herald, Sat 28 Feb 1874 ⁷

CENTRAL CRIMINAL COURT.
FRIDAY.

Before his Honor Sir JAMES MARTIN, Chief Justice.

Mr G Milner Stephen prosecuted for the Crown.

UNNATURAL CRIME.

Richard Massey, aged 18 years, was indicted for having committed an unnatural crime.

The prisoner (who pleaded not guilty) was defended by Mr Buchanan, instructed by Mr J Carroll.

Verdict: Not guilty; the jury recommended that the boy – if found to have not properly cared for – should be looked after by the authorities.

His Honor said he had no doubt the police authorities would avail themselves of the provisions of the Act which had been passed for such a purpose.

The prisoner was then discharged.

¹ Empire, Mon 12 Jan 1872, p. 2.

² SRNSW: NRS880, [9/6571], Supreme Court, Papers and depositions, SGD, Feb 1874. No file (9/6582) for the Feb 1875 trial before Judge Martin could be located at SRNSW.

³ SRNSW: NRS7378, [2/6158], Judiciary, J Martin, CJ. Notebooks Criminal, Sydney, 1873-86, pp. 150-1.

⁴ Sir James Martin (1820-1886). Born at Middleton, County Cork, Ireland, 14th May 1820, he came with his migrant parents to Sydney in 1821, where he was educated at the Sydney Academy and Sydney College. After some experience as a reporter, Martin became articled to a barrister, and subsequently practised as a attorney. In 1848, Martin was elected to the legislative council for Cook and Westmoreland. In 1856 he was elected to the first parliament under responsible government, and in Aug was made Attorney-General in the first Ministry of Charles Cowper. Martin was Premier of NSW on three occasions, in 1863, 1866 (in coalition with Henry Parkes) and again from Dec 1870 until May 1872. In Nov 1873, on retirement of Sir Alfred Stephen, Martin was given the position of Chief Justice, which he filled with great distinction. He died on 4th Nov 1886. [P. Serle, ADB, 1851-1890, vol. 2, pp. 119-120].

⁵ SRNSW: NRS7378, [2/6160], Judiciary, J Martin, CJ. Notebooks Criminal, Sydney, 1873-86, pp. 77-100. Emphasis added.

⁶ Empire, Sat 28 Feb 1874, p. 3.

⁷ The Sydney Morning Herald, Sat 28 Feb 1874, p. 5.

Sodomy