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1877, Michael Burke - Unfit For Publication
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Depositions for Michael Burke 3 Apr 1877 Yass trial 1

Police Office, Cootamundra
12th December 1876.

Under-Secretary for Justice and Public Instruction, Sydney

Sir,
    I am instructed by the Bench of Magistrates to forward herewith depositions in the case stated in the margin 2

I am,
    Sir,
Your very obedient servant.
[Signed] Thomas Parker,  Acting CPS.

~ ~ ~ ~ ~

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

Depositions of Witnesses.

Colony of New South Wales
TO WIT.                               }

The examination of Thomas Parker, of Cootamundra in the Colony of New South Wales, Senior Constable of Police John Cannon of Bethungra labourer and James Fleming, of Bethungra in the said Colony, labourer, taken on Tuesday this 12th day of December in the year of Our Lord one thousand eight hundred and seventy six at Cootamundra 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 Michael Burke who is charged this day before me for that he the said Michael Burke   on the 29th day of November 1876 at Bethungra in the said Colony, with a certain mare, feloniously, wickedly, and against the order of nature, had a venereal affair, and there feloniously, wickedly, and against the order of nature, carnally knew the said mare; and there feloniously, wickedly and against the order of nature, with the said mare did commit and perpetrate that detestable and abominable crime of buggery, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her Crown and Dignity.

1

    This deponent Thomas Parker being duly sworn saith:– I am Senior Constable of Police stationed at Cootamundra. On Sunday last the 10th Instant I arrested the accused Michael Burke at Murrumburrah. I charged him with having criminal intercourse, with a mare at Bethungra, he replied “Very well.” Immediately after he made the remarks, that he hoped his legs would have taken him some other place by Murrumburrah, that he expected he would get two years for it. I locked him up at Murrumburrah. 

[Signed] Thomas Parker.

Sworn before me this 12th day of December 1876 before me.
[Signed] John B Hurley,  JP.

2

    This deponent John Cannon being duly sworn saith:– I am a labourer working at Bethungra on the railway line. I have known the prisoner for the last seven weeks. He was working in the same cutting with me. On Wednesday the 29th of November last between 6 and 7 o’clock in the evening a man named Fleming came down the road from Davis’s towards the camp, and said to me what that (bugger) Burke is doing, meaning the prisoner now before the Court. I went and saw the prisoner leaning over the back of a mare with his hat off. I watched him for a few minutes and he then saw me and got down. He was standing

3

on a pile of stones leaning over the hind part of the mare. The mare was standing quiet. When he saw me he got down off the pile of stones, and went to the off side of the mare. I then went back to where I was staying. When I came out again I saw the prisoner carrying a stone and placing it on top of the others. He got behind the mare and laid hold of one of her legs and made them both stand straight. He then got up on the stones and leaned against the mare, he pulled her tail one side with his right hand and took his person in the left hand and guided his person into the mare. He then put both his hands round the mare’s flanks and done

4

the same as he would do to a woman. I am positive the prisoner had carnal intercourse with the mare. I saw him get off with his The mare moved and he fell off with his face towards me and his person out of his trousers. The mare, the property of a man named Goggin.

[Signed] John Cannon.

Sworn before me this 13th day of December 1876 before me.
[Signed] John B Hurley, JP.

5

    This deponent James Fleming being duly sworn saith:– I am working on the railway line at Bethungra. I know the prisoner for the last eight years. On Wednesday evening a fortnight from tomorrow I was returning from Davis’s public house, on the top of the gap near Bethungra. I saw the prisoner against a mare. When I saw him he was standing on a pile of stones against a tree which was close to his own tent. I saw him get off the stones and get another on and place it on the top of those which I had seen him standing on previously. I went to Dan Goggin’s public house and told the last witness to have a look at what

6

Mr Burke was at. He was leaning up against the mare at her stern, standing on the pile of stones. That was the second time I saw the prisoner leaning with his body against the mare.

[Signed] James (his X mark) Fleming.

Sworn before me this 12th day of December 1877 before me.
[Signed] John B Hurley, JP.

~ ~ ~ ~ ~

    Prisoner Michael Burke stands committed to take his trial at the next Circuit Court to be holden at Yass on the 3rd day of April next on the charge of bestiality.

[Signed] John B Hurley, JP.

~ ~ ~ ~ ~

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

Statement of the Accused.

New South Wales,
TO WIT.               }

Michael Burke stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 12th day of December in the year of Our Lord one thousand eight hundred and seventy six for that he the said Michael Burke on the 29th day of November 1876 at Bethungra, in the said Colony, with a certain mare feloniously, wickedly, and against the order of nature, had a venereal affair, and then feloniously, wickedly and against the order of nature carnally knew the said mare; and then feloniously, wickedly, and against the order of nature with the said mare did commit and perpetrate that detestable and abominable crime of buggery, against the form of the statute in such case made and provided and against the peace of our Lady the Queen the Crown and Dignity 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 Michael Burke and the witnesses for the prosecution Thomas Parker, John Cannon, and James Fleming being severally examined in his presence, the said Michael Burke 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 Michael Burke saith as follows:– “I have nothing to say.”

[Signed] Michael Burke.

Taken before me, at Cootamundra in the said Colony, the day and year first above mentioned.
[Signed] John B Hurley, JP.

~ ~ ~ ~ ~

(O. 1, 11 & 12 Vic., Cap. 42.)

Recognizance to give Evidence.

New South Wales,
TO WIT.                }

Be it remembered, that on the 12th day of September in the year of Our Lord one thousand eight hundred and seventy six Thomas Parker a Senior Constable of the Police Force, of Cootamundra in the Colony of New South Wales, John Cannon of Bethungra in the said Colony, labourer and James Fleming of Bethungra in the said Colony, labourer 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.

Taken and acknowledged, the day and year first above mentioned, at Cootamundra in the said Colony, before me.

[Signed] John B Hurley, JP.

  The condition of the within written Recognizance is such, that whereas Michael Burke was this day charged before John B Hurley Esquire one of Her Majesty’s Justices of the Peace for the said Colony, with a certain mare feloniously, wickedly, and against the order of nature, had a venereal affair, and then feloniously, wickedly, and against the order of nature carnally knew the said mare did then feloniously, wickedly and against the order of nature with the said mare did commit and perpetrate that detestable and abominable crime of buggery against the form of the statue in such case made and provided and against the peace of our Lady the Queen, her Crown and Dignity.

If therefore, they the before mentioned persons shall appear at the next Court of Circuit Court to be holden at Yass, in and for the Colony of New South Wales, on the 3rd day of April 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 Michael Burke for the offence aforesaid, to the jurors who shall pass upon the trial of the said Michael Burke.

Then the said Recognizance to be void, or else to stand in full force and virtue.

[Signed] John B Hurley, JP.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

12th December 1876
No. 15
Depositions
Regina No. 1
v.
Michael Burke
Sodomy
Circuit Court Yass
3rd April 1877
Cootamundra

~ ~ ~ ~ ~

Sodomy

[Initialled] WBG [William Bede Dalley] AG
8/1/77

~ ~ ~ ~ ~

Justice P Faucett’s Notebook 3

25

Yass
Tuesday April 3rd 1877

Queen
v
Michael Burke

Dillon for Crown
Salomons at my request watches the case.

    Thomas Parker examined by Dillon. Senior Sergeant of Police at Cootamundra. I arrested prisoner on 10 December at Murrumburrah and charged him with having (illicit ?) intercourse with a mare   on 29 November at Bethungra.  He said – very well – He also said I wish my legs would take me to some other place (but ?) Murrumburrah – I expect I could get 2 years for it.

    I put him in the lock-up at Murrumburrah.

    Examined by Salomons. The first time I (met ?) him was about 2 or 3 months before. He looked like a man that had been on the spree – but was not drunk – (men ?) get on spree (on ?) (property ?).

26

    John Cannon examined by Dillon. Railway labourer – working at Cudgegong – On 29 November I was working at Bethungra. I knew prisoner for 4 or 5 weeks before that – he was a railway labourer. I was sitting with Dan (Goggins ? passim) at whose house I was lodging. Fleming came up and said something to me. I got up and looked. I saw (him ?) at back of a horse. He got down and patted the horse. He then got up on (something ?) and caught tail. (His ?) (arms ?) moved and he came down – not high enough. The mare was standing – he took hold of his person with the left hand and the tail with his right and (?) (his ?) person into the mare – he (behaved ?) the same as a man with a woman. Dan Goggins’ mare.

    Cross-examined by Salomons. Goggins was sitting at the door. I came back and told Goggins. I was alone. Fleming was sitting on a seat – he sat down (laughing ?) where I had been sitting. I saw (him ?) roll off the (stones ?) I never interfered. Goggins and I were smoking our pipes. We were all on the same job. He was not drunk then but was tight in the evening. It was between 5 and 6 o’clock.

    James Fleming examined by Dillon. Labourer – at Bethungra on 29 November. I knew prisoner about 10 years. I saw him (?) again the (mare ?) lying over her – about 10 yards from Goggins’ house – about 5½ or 6 in the evening. He looked as if not high enough – standing on a stone. He got another stone.

27

I saw no more – and went to the house. I did not see him doing anything. He (was ?) in his working dress. I did not notice his dress but went to the house. I saw nothing more of him then. I saw him nothing next morning. I told Cannon something.

Verdict – Guilty of the attempt. 

Sentence 2 years in Goulburn Gaol  with hard labour. 

~ ~ ~ ~ ~

The Yass Courier, Fri 6 Apr 1877 4

LOCAL AND GENERAL.
Yass Autumn Assizes.
TUESDAY, 3 APRIL

    His Honor, Mr Justice Faucett took his seat on the bench at ten o’clock.

    The Judge’s associate, Mr JF Makinson, acted as clerk of the arraigns; Mr JT Dillon, by special appointment, acted as Crown Prosecutor; he was attended by Mr JB Jackson,  first clerk of the Crown Solicitor. Mr JE Salomons and Mr JH Want, of Sydney, were the other members of the bar present. The other branch of the legal profession was represented by Mr Fitzhardinge, of Wagga Wagga, Mr Wilkinson, and Mr Iceton, of Yass.

AN UNNATURAL OFFENCE.

    Michael Burke pleaded not guilty to an indictment charging him with having, at Bethungra, on the 29th November, 1876, committed a certain detestable crime. There was a second count in the indictment charging the prisoner with an attempt the capital offence, to which he also pleaded not guilty.

    His Honor desired to know if any gentleman of the bar was retained to watch the case for the prisoner.

    Mr Salomons, instructed pro forma by Mr Iceton, volunteered to watch the case for the prisoner.

    The following gentlemen were empannelled [sic] as the jury to try the case:– Messrs J Collis  (foreman), Francis Lawlis, Thomas Bailey, Thomas John Best, John Barry, James Quinn, Edward Hallam, Hubert Reyard, Samuel Wilson, Robert B Smith, Thomas W Pollock, and Horace Townsend Hayes. 

    Thomas Parker, senior-constable of police, stationed at Cootamundra, deposed to having arrested the prisoner on the 10th of December last, at Murrumburrah, by virtue of a warrant, and in reply to the charges he said, “very well, I wish my legs would have taken me somewhere else but Murrumburrah; I expect I will get two years for it.”

    To Mr Salomons: At the time of arrest he appeared to be recovering from a drunken spree.

    To Mr Dillon: He was not drunk at the of arrest.

    The evidence of John Cannon and James Fleming was taken, which left no doubt that the horrible offence was attempted, if not committed. The jury, after some deliberation, returned a verdict of not guilt of the felony, but guilty of the attempt.

    His Honor sentenced the prisoner to two years’ imprisonment in Goulburn gaol.

 


1  SRNSW: NRS880, [9/6603], Supreme Court, Papers and depositions, Yass, 1877, No. 15. Emphasis added. 

2  Mn: (Michael Burke, bestiality)

3  SRNSW: NRS5927, [2/3931], Judiciary, PG Faucett, J. Notebooks Circuit Courts, 1866-87, pp. 25-7. Emphasis added.

4  The Yass Courier, Fri 6 Apr 1877, p. 2. Emphasis added