John Miller , 1890 1
Justice MH Stephen’s notebook 2
[Young, Monday 14 April 1890]
John Miller –
2. Indecent assault
Plea Not guilty.
James Downey. Confined in Young Gaol. I know the prisoner. Brady & prisoner slept in the same cell with me. I suffer from fits – am 18 years old. Something happened on a Thurs Tuesday. I had a fit that night. Prisoner was in the cell … I had a fit at 12 o’clock at night. Prisoner came to my assistance … I asked him to give me my medicine … he came to my bunk but in the dark I could not see the cup. When he took the cup away he laid on the top of me. He put his penis right inside my back side. I did not complain – (?) until 3 Tuesday.
I complained the day after … to the gaoler. Prisoner told then that if I complained at once he would kick my guts in. I only made one complaint against prisoner.
Cross-examined. I can tell when I am in a fit. You came over & took advantage of me.
Edward Armfield. Warder in Young Gaol. I was on duty one Tuesday 13 March. Prisoner & Downey were in one cell – Brady was also in the cell. I came on duty at 5 – on to 8. As I got inside the gate – front gate – there was a rapping in one of the cells – prisoner’s cell. I asked what was that knocking for. Prisoner said Downey’s medicine. I got the medicine & another warder & I went to the cell door –
6 to 8 minutes elapsed before it was delivered. Prisoner took the medicine through the trap. Prisoner was put into the gaol 4 to look after him – Downey made no complaint. He made no complaint to me at any time …
By me. I went off duty at 6 in the morning.
John T Heeley. Medical Officer to the gaol. I remember Saturday 15 March. Yates asked me to visit the gaol. I saw Downey. He made a statement to me & I examined him. He presented no marks of violence – but there seldom are in these cases. He complained of pain about the rectum. Downey is slightly imbecile.
Cross-examined by me. If conscious he had no fit.
Downey re-called by me. It was while I had the fit that the thing happened – I am sure.
William Brady. I was a prisoner in Young Gaol – last month – the 13th. I slept in same cell with Downey & prisoner. I never saw Downey in a fit – he was ill that night. He complained of pains in his stomach – moaned & groaned – got worse. Prisoner was calling to him. He did not answer. Prisoner said he had a fit going on – I will get up & hold his hands or he will bite himself. Prisoner got up & sat on the side of his bed. Downey seemed to be bobbing his head – motioning towards his arms.
Miller (prisoner) held his arms. A lamp & medicine was brought – you could (?) see about the cell. I was sitting at the end of the bed. Prisoner had gone to bed. Medicine was brought about ½ past 7. Downey did not then take the medicine. The warder said if he does not get worse don’t give him the medicine until 9 o’clock. Prisoner gave him a dose about 9 o’clock. I was in bed. I went to sleep soon after the medicine was given.
Cross-examined. I never saw you out of bed at 11 o’clock that night.
By me. I did not hear Downey ask for his medicine that night. Downey objected to taking it.
Downey by me. I only took one dose that night.
~ ~ ~ ~ ~
The Burrangong Argus & Burrowa, Murrumborrah, & Marengo Gen Advertiser, Wed 16 Apr 1890 5
The Young Circuit Court was opened on Monday morning before his Honor Mr Justice Stephen. Mr Tarlton prosecuted for the Crown. Mr Russell was the only local solicitor present. Mr Robinson, PM., was commissioned to act as sheriff in the absence of Mr Cowper. Mr Eagar was the Judge’s associate.
The following jury was empannelled:– [sic] Messrs G Mansfield, M Freudenstein, John Shea. W Price, F Kemp, W Loader, Henry Allsopp, Job Fowler, JH Warner, J Tout, and WJ Nest.
The following cases were tried:–
John Miller was charged with having committed an unnatural offence on James Downey in the Young gaol.
The Crown prosecutor, in a few remarks, stated the case, and after the evidence of the prosecutor, James Downie [sic], Dr Heeley, Edward Armfield, William Brady, and J Gates had been taken, the case, the most of which was unfit for publication closed.
His Honor in summing up said that the evidence of the prosecutor was altogether unreliable, and if the jury had any doubt in their minds the prisoner should get the benefit of it.
The jury at once returned a verdict of not guilty and the prisoner was acquitted, his Honor fully agreeing with the verdict given.
In looking over the reports from the different gaols of the Circuit, viz., Forbes, Cowra, Cootamundra, Grenfell, and Gundagai his Honor congratulated this district on being so free from crime.
The Court then rose.
1 Depositions (9/6796) for this case, could not be located at SRNSW.
2 SRNSW: NRS7710, [2/7233], Judiciary, MH Stephen, J. Notebooks Circuit Courts, 1876-1903, pp. 17-21. Emphasis added.
3 Possibly means on the Tuesday.
4 Possibly means cell.
5 The Burrangong Argus & Burrowa, Murrumborrah, & Marengo General Advertiser, Wed 16 Apr 1890, p. 2. Emphasis added.