1862, Martin Kelly

Empire, Thu 2 Oct 1862 ¹

CHARGE OF ROBBERY.—John T Cockerell, son of Mr Cockerell, formerly a pawnbroker in Sydney, was arrested in this city yesterday in consequence of a telegram from Brisbane, charging him with robbery. A warrant has been issued, which will be forwarded by the next mail.

~ ~ ~ ~ ~

Empire, Fri 3 Oct 1862 ²

CENTRAL POLICE COURT.
THURSDAY.

BEFORE the Mayor, and Messrs G Hill and Levey.
…
Martin Kelly was charged with stealing a pair of trousers and four shirts, the property of John Glynn, watchmaker, at the Post-office. The prisoner pleaded guilty; three months gaol, with hard labour.
…
Martin Kelly, before convicted of stealing, was committed for trial for attempting to commit an unnatural crime in the watch-house.

~ ~ ~ ~ ~

The Sydney Morning Herald, Fri 3 Oct 1862 ³

CENTRAL POLICE COURT.
THURSDAY.

BEFORE the Mayor and the Police Magistrate, with Messrs Levey, Birrell, Cook, Peden, Lenehan, G Hill, and Kettle.
…
John Thomas Cockerell, [see John Thomas Cockerell, 1878 and see Harry Gordon, 1900] sixteen years of age, was brought before the Court by sub-inspector Harrison, who deposed that yesterday he received him in custody from a constable of the Brisbane police charge [sic] with larceny; he produced a telegram purporting to have been sent by the police magistrate of Brisbane, informing him that a warrant had been issued for the apprehension of John Thomas Cockerell, [see Brisbane’s Courier articles below] charged with larceny; prisoner said in reply that he knew nothing whatever of the charge, and that he went on board the steamer at Brisbane to see some persons on board, and remaining longer than he intended the vessel started before he was aware. On cross-examination by Mr Driver, the officer said that he only knew that the telegram purported to come from the police magistrate, and, having received a subsequent telegram from the chief constable on the same subject, he had no doubt of its authenticity. Mr Driver submitted that Cockerell was illegally in custody, and ought forthwith to be discharged. It was quite time that the detention of persons on a mere telegraphic information should be put a stop to. A telegram could be sent by any malicious person, and, being mere hearsay, was no authority on which to the magistrates would detain any one in custody. An instance of the injustice of such a practice occurred in the early part of the year, in which four or five men were apprehended here on information forwarded by telegram from Melbourne that they were charged with having committed a felony in that city, who were kept in custody a whole month; and then, no warrant having been forwarded, nor any evidence, were discharged from custody. The Mayor said that without a warrant, it would be impossible to detain the prisoner. Discharged.
…
Martin Kelly, apprehended on a charge of stealing, was brought before the Court charged with having, in the lock-up, attempted to commit an unnatural offence with a fellow-prisoner. The evidence sustained the charge, and he was committed for trial at the Central Criminal Court.

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The Courier, Wed 8 Oct 1862 ⁴

LOCAL INTELLIGENCE.
———o———

…

ROBBERY.—John P [sic–John Thomas] Cockerell, son of the JP [sic–John Thomas] Cockerell who recently figured so extensively before the public of Sydney, was yesterday apprehended by the police on a charge of having committed an extensive robbery in Queensland. Intelligence was transmitted by telegram from Queensland that a warrant for prisoner’s apprehension had been issued, but no particulars beyond this were sent. He arrived in the Prince of Wales, and was taken into custody immediately on landing. The warrant and affidavit on which the arrest has been made were promised to be forwarded by next mail.—SM Herald.

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The Courier, Sat 11 Oct 1862 ⁵

LETTER TO THE EDITOR.
———o———
“EXTENSIVE ROBBERY IN QUEENSLAND.”

To the Editor of the Courier.

Sir,—In the Courier of the 8th instant I find an article copied from the SM Herald, headed as follows:—

“ROBBERY.—JP Cockerell, son of the JP Cockerell, of Sydney, who has recently figured so extensively before the public of Sydney, has been apprehended by the police on a charge of having committed an Extensive Robbery in Queensland. Intelligence was transmitted by telegram from Queensland that a warrant for the prisoner’s apprehension had been issued, but no particulars beyond this were sent. He arrived in the Prince of Wales, and was taken into custody immediately on landing. The warrant and affidavit on which the arrest has been made were promised to be forwarded by the next mail.”

Now, Sir, I am anxious that the public should know that this is only one of a series of false and malicious statements that have been made from time to time through the public press against me, and which caused, in a great measure, the Sydney Government to seize and keep property and money belonging to my family, valued at twelve thousand pounds (£12,000). ⁶ The above paragraph is a fair sample. And not one bit exaggerated then either of the others to which I allude. It is only a few weeks since a person stated publicly in New South Wales that I was charged with forgery fourteen years ago. It so happened that I was not in the colony in that year—I was in California—and never heard that any such charge had been preferred against me during my absence. I am informed upon good authority that the instigator of this report is a drunken dissipated fellow that would sell himself for a bottle of rum, and who is privately connected with the Sydney detective police force.

I am only one of the many who have quietly to suffer from such evil reports. Well might Mr Parkes, the Emigration Agent, state that “he thought a change in the name of New South Wales most desirable, and without which all his efforts to induce emigrants to accept a free passage to the colony were in vain.” He might also have added, there were other things that wanted altering, even more than the name. Any person having read the pamphlet entitled “Scenes behind the Curtain, or the acts and deeds of the Convict Detectives of New South Wales,” will not be surprised at any false and malicious article that may appear concerning myself or any member of the family.

The robbery referred to occurred as follows:—On Saturday, the 27th of September, my son JT Cockerell, fifteen years of age, left the office of Mr GS Meyer, in Edward-street, Brisbane, where he was employed, at six o’clock pm, to witness the departure of the Prince of Wales steamer; when some party on board began to tell him of the great improvements that had taken place in Sydney since he last saw it; he then expressed a wish to take a trip, when the fore cabin steward, very kindly no doubt, offered him a passage if he assisted him in his duties; which the boy at once accepted. He had on at this time his trousers, cap, boots, and shirt, and nothing more—not one farthing in money, or anything else. The clothes were his usual working dress for months past. As soon as I became aware of this circumstance, I went at once to the Company’s Agent, Mr Webb, to complain of the conduct of the steward in giving my son a passage without my knowledge or consent. That gentleman at once condemned the steward and promised to lay the matter before the Captain as soon as the steamer arrived, being quite sure that the Captain would at once discharge him. (Several instances have occurred lately of boys running away from their parents in the same manner.)

I next applied to our worthy Police Magistrate to punish the boy and bring him back, but found that he could not interfere in the matter unless I brought some charge against the lad. They only complaint I could possibly bring was that of stealing the clothes he had upon his back, which of course belonged to me. I then signed the warrant, believing at the time that it would not be issued, but that the boy would be merely sent down in charge of the two Brisbane constables then in Sydney (McDonald and Cosgrove.) A telegram was sent to detain my son, but upon his arrival he had gone to his aunt’s residence, stating that he had come by mistake; and his aunt sent a telegram to me to know what was to be done. On the following day I sent an answer to the effect that he was to return by the next steamer, as I had taken out a arrant for him. In about half an hour a message came back stating that they had just taken him, and inquired what was the charge against him.

You then have the astonishing intelligence that an “Extensive Robbery has been committed in Queensland,” and that the son of JP Cockerell (“who has figured so extensively in the Sydney papers during the last four months”) is the robber alluded to. Surely a Sydney detective was the reporter of the above paragraph. What redress can I have, and what recompense for so gross an act of injustice?

By inserting the above, you will greatly oblige.

Yours truly,
JOHN THOMAS COCKERELL.
Fortitude Valley, Brisbane,
October 9th, 1862.

~ ~ ~ ~ ~

The Sydney Morning Herald, Mon 20 Oct 1862 ⁷

“EXTENSIVE ROBBERY IN QUEENSLAND.”

To the Editor of the Herald.

Sir,—In the Courier of the 8th instant I find an article copied from the SM Herald, headed as follows:—

“ROBBERY.—JP Cockerell, son of the JP Cockerell, of Sydney, who has recently figured so extensively before the public of Sydney, has been apprehended by the police on a charge of having committed an ‘Extensive Robbery in Queensland.’ Intelligence was transmitted by telegram from Queensland that a warrant for the prisoner’s apprehension had been issued, but no particulars beyond this, were sent. He arrived in the Prince of Wales, and was taken into custody immediately on landing. The warrant and affidavit on which the arrest has been made were promised to be forwarded by the next mail.” ⁸

Now, Sir, I am anxious that the public should know that this is only one of a series of false and malicious statements that have been made from time to time through the public Press against me, and which caused, in a great measure, the Sydney Government to seize and keep property and money belonging to my family, valued at twelve thousand pounds (£12,000). The above paragraph is a fair sample, and not one bit exaggerated, then either of the others to which I allude. It is only a few weeks since, a person stated publicly in New South Wales that I was charged with forgery fourteen years ago. It so happened that I was not in the colony in that year—I was in California—and never heard that any such charge had been preferred against me during my absence. I am informed upon good authority that the instigator of this report is a drunken dissipated fellow that would sell himself for a bottle of rum, and who is privately connected with the Sydney detective police force.

The robbery referred to occurred as follows:—On Saturday, the 27th of September, my son JT Cockerell, fifteen years of age, left the office of Mr ME Meyers, in Edward-street, where he was employed, at six o’clock pm, to witness the departure of the Prince of Wales steamer, when some party on board began to tell him the great improvements that had taken place in Sydney since he last saw it; he then expressed a wish to take a trip, when the fore cabin steward very kindly, no doubt, offered him a passage if he assisted him in his duties,—which the boy at once accepted. He had on at this time his trousers, cap, boots, and shirt, and nothing more—not one farthing in money, or anything else. The clothes were his usual working dress for months past. As soon as I became aware of this circumstance, I went at once to the Company’s agent, Mr Webb, to complain of the conduct of the steward in giving my son a passage without my knowledge or consent. That gentleman at once condemned the steward and promised to lay the matter before the captain as soon as the steamer arrived, being quite sure that the captain would at once discharge him. (Several instances have occurred lately of boys running away from their parents in the same manner.)

I next applied to our worthy police magistrate to punish the boy and bring him back, but found that he could not interfere in the matter unless I brought some charge against the lad. They only complaint I could possibly bring was that of stealing the clothes he had upon his back, which of course belonged to me. I then signed the warrant, believing at the time that it would not be issued, but that the boy would be merely sent down in charge of the two Brisbane constables then in Sydney (McDonald and Cosgrove.) A telegram was sent to detain my son, but upon his arrival he had gone to his aunt’s residence, stating that he had come by mistake; and his aunt sent a telegram to me to know what was to be done. On the following day I sent an answer to the effect that he was to return by the next steamer, as I had taken out a arrant for him. In about half an hour a message came back stating that they had just taken him, and inquired what was the charge against him.

By inserting the above, you will greatly oblige.

Yours truly,
JOHN THOMAS COCKERELL.
Fortitude Valley, Brisbane, October 9th, 1862.

~ ~ ~ ~ ~

The Courier, Wed 29 Oct 1862 ⁹

LETTER TO THE EDITOR.
———o———

…
Sir,—In your impression of to-day I find a letter signed “William Herbert,” fore-cabin steward of the Prince of Wales, complaining of the part of my letter wherein I stated that he had—very kindly, no doubt—given my son a passage to assist him in his duties. He also says that I state that he decoyed him from his home. The latter part I distinctly deny—I never stated anything of the kind. My reason for stating the former was that, on the morning after the Prince of Wales had left for Sydney I missed my son, and proceeded to the ASN Company’s wharf to make inquiry. The first person I saw was a seaman belonging to the Prince of Wales, who had been left behind and who told me that the boy had gone with the fore-cabin steward; that he was to assist him for his passage, and that he had seen him there as the vessel was starting. I next saw one of the fireman of the Telegraph, who told me that one of their stewards had seen the boy in the fore-cabin telling the steward that his mother was in China, and that he was going to her, and that he had given him a passage to Sydney on that account. It was on the faith of these statements that I believed he had really given him a passage. Now, Sir, I should be very sorry to accuse any man of what he was not really guilty of, more especially a man I had never seen or heard of before. When I stated that Mr Herbert had given my son a passage I believed it to be strictly true. I have since been informed that the boy went entirely upon his own responsibility; and as my stating that the fore-cabin steward had given him a passage (which I now really believe he did not) might injure him with the Company, I now beg to state that I was misinformed. I, therefore, consider it my duty to make the same public. By inserting the above, you will greatly oblige yours truly,

JNO T COCKERELL.
Brisbane, October 25th, 1862.

~ ~ ~ ~ ~

The Courier, Wed 11 Nov 1862 ¹⁰

LETTER TO THE EDITOR.
———o———

…

THE “EXTENSIVE ROBBERY” IN QUEENSLAND.

Sir,—In a former issue of the Courier, in a letter headed as above, I stated my belief that a Sydney detective was the writer of the article referred to. My suspicions have proven to be correct. I see by a foot note in the Sydney Morning Herald, dated 20th October, as follows:—“This information was given to our reporters by a detective policeman.” [see the SMH, Mon 20 Oct 1862, above.]

Now, Sir, this report was given either designedly, or he was misinformed by some other person; if the latter the least this detective could have done would have been to contradict the statement, but ten days have now elapsed without his having done so, and I almost begin to suspect that this report was made to do me a serious injury, more especially as he states (which, by the bye, he was not required to do), that the robber alluded to was the son of “JP Cockerell, who has recently figured so extensively before the public of Sydney.” Now supposing my son had really committed an extensive robbery in Queensland (which he had not), what right has this detective to drag me so prominently before the public? If a son is guilty of an extensive robbery, is that any reason why the father should be held up to public contempt, and his private affairs be laid before the public? Surely this is not for the public benefit (Act 11th, Vic No. 13, s. 10) Baron Alderson observes (p. 338) “there is a distinction between the comments o a man’s public conduct, and upon his private conduct.” I find that both in Warwick and Drayton there are persons who see my name mixed up with an extensive robbery, who are lad to believe that I have been guilty of some similar transaction, and that is what the detective means by saying I have figured so extensively before the public of late.

But I wish to assure them this is not the case. The way I have figured before the public is this: It will be recollected by some that a few years back, while I was in the pawn broking business, the Sydney government seized some £12,000 worth of goods and money, then my property, the whole of which was entrusted to the tender mercies of the detectives of Sydney for upwards of three months, during which time no inventory was taken of any portion of this property. They were merely placed there to look after it, and see that nothing was stolen. At the expiration of that time it was all bundled into the auctioneer’s cart and sold, that is what remained of it. At the time of the seizure one of the detective officers swore that the property in the house was worth over £8000, but the account sales to the Sydney government show the total amount to be £1837 3s. 8d., and £1141 3s. 8d. Was in hard cash, leaving only about £700 for the whole of the goods sold, which one detective swore were worth at least £8000. I commenced business with nearly double the whole amount, and for six years carried it on most profitable. During the last few months I have been petitioning the Legislature of New South Wales on behalf of my family, who are much in want of it, to restore the balance, amounting to some £600; and this, I suppose, is what the Sydney detective alludes to when he says that I have recently figured so extensively before the public of Sydney. Can it be possible that this man is annoyed at my asking the balance as an act of grace from the Legislature? Or is he sorry to find there is a balance left after passing through such clever hands? Ought they not to be satisfied with the lion’s share of the transaction, and leave the crumbs to be gathered by my unfortunate family in peace. A paragraph in the Courier, from its Sydney correspondent, does not in any way improve the case. He says—“Cockerell’s story of his son is contradicted in the Herald,” whereas only one line is contradicted, that is, where I state the steward gave him the passage. The steward also stated that I said he had decoyed the boy from his home. The latter part I think he must have fancied, as I never said so, and as this was the offensive part of it, he might as well have left it out. As soon as I found out that I had been wrongly informed, I at once publicly acknowledged it, in case it might injure the steward with the Company, and i think the least the detective who reported the “extensive robbery in Queensland” could do is to do as I did—at once acknowledge he was wrongly informed. If he does not, I shall be compelled to take the opinion of a jury of his countrymen on the subject.

By inserting the above you will greatly oblige.

Your obedient servant,
JOHN THOS COCKERELL.
Fortitude Valley, October 31, 1862.

~ ~ ~ ~ ~

Depositions for Martin Kelly 2 Dec 1862 Sydney trial ¹¹

Darlinghurst Gaol.
6 November 1862.

Memo

John Thomas Cockerell is principal witness against one Martin Kelly committed to take his trial at the next Criminal Court for attempting to commit an unnatural offence and being a minor is legally incapable of entering into the required recognizance to give evidence against Kelly. Consequently is detained in gaol until after the trial of Martin Kelly as no person on his behalf has entered into such recognizance.

Darlinghurst Gaol.
9 October 1862.

James Williams Esq
Criminal Crown Solicitor.

Sir,
As I am committed for trial at the ensuing Criminal Court — and there being a man of the name of Charles Tomlin now under sentence of one months’ confinement in Darlinghurst Gaol — who is a most material witness — for my defence — I have the honour to request — that you will order his affidavit 11 to be taken — he being a miner by trade — the probability is I should be unable to discover his address — and thereby lose the only evidence — which will establish my innocence.

I have the honour to be
Sir
Your most obedient Servant.
[Signed] Martin Kelly.

Central Police Office, Sydney.
October 13th, 1862.

Sir,
I have the honour to acknowledge the receipt of your letter of date 11th October to-day, enclosing depositions to-day (at half-past two o’clock pm) and marked on the envelope “Urgent”, respecting the case named in the margin, and I beg to state from inquiries I have made I believe the offence was not committed.

I have the honour to be
Sir
Your most obedient Servant.
[Signed] Mr Scott, PM.

The Secretary, Crown Law Offices.
Metropolitan: Regina v Martin Kelly for attempting to commit an unnatural offence proceeding returned herewith.

Regina v Martin Kelly, unnatural offence.

Inspector Waters was on duty at CPO when prisoner was confined on a charge of stealing while he was there Cockerell was brought in to the same cell about 6 in the evening. The boy came to the door crying profusely to be let out. I let him out and he charged Kelly with the offence stated. He had pulled his trousers down and tried to force his person in behind him. I examined him and found a whitish substance on him and also on Kelly. The boy said he had attempted it three times and that he had wet his hand and person I found his right hand wet.

John Thos Cockerell sworn was apprehended yesterday by Queensland Police and locked up in a cell by myself at my own request I was moved into another cell where prisoner was he spoke to me saying he knew my father towards evening I was wishing for a blanket when he said I might lie in his which I did about a quarter of an hour I felt someone pulling me and moved away he pulled my trousers about my knees I then heard him spit in his hand and wet his person he held me tight and was forcing me against the wall I put my hand behind & felt his person

I then called for the Police Mr Waters let me out & my trousers were hanging about me Mr Waters examined me then I felt wet come from him he tried to pull my trousers up when I called out & you told me to be against the wall & you said speaking to another man I had your person in my hand when I was trying to get up.

John Abrahams was in the cell with prisoner & Cockerell & was asleep when the boy crying out awoke me I heard prisoner say be quiet don’t be foolish in crying. Prisoner was about a yard & a half from me.

Charles Tomlinson [sic] sworn was in the cell with prisoner Cockerell & last witness & heard Cockerell cry out I asked him what he wanted he said he wanted the police did not notice his trousers could see the boy quite plain

(Gaol Delivery.)

Recognizance to Give Evidence.

New South Wales, City of Sydney
TO WIT. }

Be it remembered, that on the 2nd day of October in the year of our Lord one thousand eight hundred and sixty two Robert William Waters a Sergeant of the Sydney Police, 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 indorsed.
[Signed] RW Waters.

Taken and acknowledged the day and year first above-mentioned, at Sydney, in the said Colony, before me,
[Signed] John Birrell, JP.

[On the reverse of the above 6 is the following]

the condition of the within written recognizance is such, that whereas Martin Kelly was this day charged before James Oatley and John Birrell Esqs, two of Her Majesty’s Justices of the Peace for the said Colony, with attempting to commit an unnatural offence.

If there, he the said before-mentioned person 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 first day of December next, at 9 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 Martin Kelly for the offence aforesaid, to the jurors who shall pass upon the trial of the said Martin Kelly then the said recognizance to be void, or else to stand in full force and virtue.
[Signed] John Birrell, JP.

Martin Kelly.

Sergeant Robert Waters of Sydney Police Force a constable last night was on duty at the Central Watch House, the prisoner was then and there confined on a charge of stealing he was in the large cell while the prisoner was there confined a lad named John Thomas Cockerell about the age of 16 or 17 was placed in that cell about half past six in the evening Cockerell came

to the door of the cell and made a complaint. He asked in a pitiful tone to be let out. The prisoner was there and heard him. I let him out and in the hearing of the prisoner he told me that Kelly had loosened his trousers behind and put his arm around his waist and held him tightly and that he attempted to force his person behind him that he put his hand back and felt the prisoner’s person there prisoner made no reply I examined and found a very great redness about the parts behind. There was a white substance about

the same place. I then brought Kelly out and the boy charged him with the offence stated. The boy said the prisoner had attempted it three times. He said in Kelly’s presence that Kelly had wet his hand and also [his] person. Kelly denied the charge. I then examined Kelly and found his hand wet. I examined his person and found on his private parts a substance similar to that which I found in the boy’s private parts. There were two other person in the cell. The cell was very dark.
[Signed] RW Waters

Sworn at Police Office Sydney this 2nd October 1862.
[Signed] James Oatley, Mayor. John Birrell, JP.

John Thomas Cockerell on oath states I am between 17 and 18 years of age. I was apprehended in the city yesterday by the Queensland police and brought to the Central Watch House. I was placed in the cell by myself —this was in the morning. I was afterwards removed into another cell at my own request. This was about one o’clock. The prisoner was in the cell to which I was removed. He spoke to me and said he knew my father. In the evening when it was getting dark I was wishing for a blanket and the prisoner said he would let me lie down in his. He

was lying down at the time and I went to him to lie down and he asked me to lie between him and the wall saying I would be warmer there. I lay there for about a quarter of an hour when I found something pull me about and I moved further up. I felt it a second time. It was somebody trying to undo my trousers. I kept quiet and I heard prisoner spit on is hand the I then found he was wetting his person. I let him undo my trousers

because I wanted to see what he was going to do to me. He held me very tight round the waist and was forcing me to the wall. My face was towards the wall. I put my hand behind me and I felt his person against my bottom. I jumped up and cried out for the police. Mr Waters came to the cell door and I made a complaint to him and he let me out. When the prisoner undid my trousers he pulled them down as far as my knees nearly.

When Sergeant Waters let me out of the cell my trousers were hanging about me. It was very dark in the cell. I felt his person touching me. Mr Waters examined me. When prisoner’s person touched me I felt wet come from him. When I cried out the prisoner tried to pull up my trousers.

By Prisoner: When I went to lie down you told me to lie against the wall. You were speaking to another man. My back was towards you. There was a man lying close to you. The other man was about 3 feet from him. I can’t say whether these men were awake. You were speaking to

one of them a quarter of an hour before you touched me. When I was trying to get up I had your person in my hand.

You put your private parts in my behind
[Signed] John Thomas Cockerell

Sworn at Police Office Sydney this 2nd October 1862.
[Signed] James Oatley, Mayor, John Birrell, JP.

Defence

John Abrahams on oath states:—Last evening I was in a cell with the prisoner and Cockerell and another person. Between 6 and 7 it was very dark. The boy was lying against the wall, the prisoner was next to him, I was next to prisoner. I heard the boy cry out for the police. The prisoner said be quiet don’t be foolish in crying. The boy’s crying out awoke me and the other man. The prisoner was lying about a yard and a half from me. The boy’s noise awoke me.
[Signed] John Abrahams

Sworn at Police Office Sydney this 2nd October 1862.
[Signed] James Oatley, Mayor, John Birrell, JP.

Charles Tomlin on oath states:—Last evening I was locked up in the Watch House. It was then about 5 o’clock. The prisoner and Cockerell and another man were in the cell. About half past 6 in the evening I was lying down. The boy was next to the wall. The prisoner next to him, the other man next to prisoner and I next to him. I heard the prisoner and the boy talking. I couldn’t understand what they said. In about five minutes after the boy jumped up. He was crying. I asked him what he was crying for.

He said he wanted the Police & he went and knocked at the door. I was wide awake at the time the boy cried out. I could see the boy quite plain when I was lying down.

Cross examined by Kelly: I saw the Boy quite plain when I was lying down – there was a very good light in the cell. The moon was shining in the cell. I didn’t notice the Boy’s trousers.
[Signed] Charles, his mark, Tomlin.

Sworn at Police Office Sydney this 2nd October 1862.
[Signed] James Oatley, Mayor, John Birrell, JP.

~ ~ ~ ~ ~

Committed for Trial at next Criminal Court.
[Signed] James Oatley, Mayor, John Birrell, JP.

(N. 11 and 12 VIC., CAP. 42.)
Statement of the accused.

New South Wales, City of Sydney
TO WIT. }

Martin Kelly stands charged before the undersigned two of Her Majesty’s Justices of the Peace in and for the city and colony aforesaid, this second day of October in the year of Our Lord one thousand eight hundred and sixty two for that he the said Martin Kelly on the first day of October instant at Sydney in the said Colony, feloniously did make an assault with intent that detestable and abominable crime called buggery to commit and perpetrate and the said charge being read to the said Martin Kelly and the witnesses for the prosecution, being severally examined in his presence, the said Martin Kelly is now addressed by us 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;” thereupon the said Martin Kelly saith nothing.
[Signed] James Oatley Mayor, John Birrell, JP

~ ~ ~ ~ ~

The Sydney Morning Herald, Wed 3 Dec 1862 ¹³

CENTRAL CRIMINAL COURT.
TUESDAY, 2nd DECEMBER.

BEFORE Mr Justice Wise.
…

SECOND COURT.

Before Mr Justice Milford.

FELONIOUS ASSAULT.

Martin Kelly was indicted for having at Sydney, on the 1st of October last, assaulted one John Thomas Cockerell, with intent to commit an unnatural offence.

Mr Windeyer appeared for the Crown. The prisoner was undefended.

The evidence in this case was for the most part unfit for publication. The prisoner and Cockerell were on the night in question confined in the same cell at the receiving watch house, George-street. Cockerell was a youth of about fourteen or fifteen. The prisoner was a man of, apparently, from forty to fifty years of age, of very unprepossessing appearance, and of ruffianly manner. Cockerell was in custody on the charge of having committed a felony in Queensland, from which colony he had absconded, but the charge seemed to have been preferred by his father only, for the sole purpose of getting him back. Kelly had just been sentenced to three months’ imprisonment for stealing clothes. According to the evidence for Cockerell, the attempt had beyond all question been made, and the officers of police, to whom Cockerell had at once complained, confirmed his story in certain particulars. Two other prisoners were in the same cell at the time, and both were examined. The evidence of one tendered materially to strengthen the presumption of prisoner’s guilt; that of the other was consistent either with his guilt or innocence.

The jury found the prisoner guilty, and he was sentenced to two years’ imprisonment, with hard labour, in Darlinghurst gaol.

FINES.

The following gentlemen were fined three pounds each for non-attendance as jurors:—Messrs Henry Chatto, William Copeland, Lawrence Corcoran, and William Drynan.

¹ Empire, Thu 2 Oct 1862, p. 5.

² Empire, Fri 3 Oct 1862, p. 2.

³ The Sydney Morning Herald, Fri 3 Oct 1862, p. 3. Emphasis added.

⁴ The Courier, Wed 8 Oct 1862, p. 2.

⁵ The Courier, Sat 11 Oct 1862, p. 3.

⁶ For a full description of the John Thomas Cockerell trial see: Scenes behind the curtain: or, the acts and deeds of the convict detectives of New South Wales, as illustrated in the trial, which led to the conviction of John Thomas Cockerell, late pawnbroker, of Park-Street, held at the NSW Mitchell library.

⁷ The Sydney Morning Herald, Mon 20 Oct 1862, p. 3.

⁸ This information was given to one of our reporters by a detective policeman.

⁹ The Courier, Wed 29 Oct 1862, p. 3.

¹⁰ The Courier, Wed 5 Nov 1862, p. 2.

¹¹ SRNSW: NRS880, [9/6442], Supreme Court, Papers and depositions, Sydney, 1862, No 4864. Emphasis added.

¹² Mn: subpoena sent in letter to gaoler, 16 October.

¹³ The Sydney Morning Herald, Wed 3 Dec 1862, p. 5.

Sodomy