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Depositions for Thomas Firth 17 Oct 1870 Bathurst trial 1

Depositions of Witnesses.

New South Wales, Bourke,
TO WIT                              }

The examination of Tobias Johns of Bourke in the Colony of New South Wales, Constable, Henry Colless, of Bourke Publican, and John William Flanagan of Bourke, in the said Colony, infant, taken on oath, this 4th day of August in the year of Our Lord One thousand eight hundred and seventy at Bourke 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 Thomas Firth who is charged this day before us, for that he the said Thomas Firth, on the 4th day of August 1870 at Bourke in the said Colony, did assault one John William Flanagan, and then and there feloniously, wickedly, diabolically, and against the order of nature, have a venereal affair with the said John William Flanagan; and then and there carnally knew him the said John William Flanagan; and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said John William Flanagan, did commit and perpetrate that detestable and abominable crime of buggery; against the form of the statutes in that case made and provided.


    This deponent Tobias Johns on his oath states, I am a Constable in the Police Force of the Colony of New South Wales stationed at Bourke, in the said Colony. The prisoner Thomas Firth now before the Court was given into my custody about 20 minutes past 3 o’clock this morning the 4th day of August instant by Mr Henry Colless of Tattersalls Hotel in Bourke, on the charge of assaulting John William Flanagan, a boy, with intent to commit sodomy. I charged the prisoner with the offence named, and told him that whatever he said in answer to


the charge I would give it in evidence against him upon his trial, he said “well, I know nothing about it.” I brought the prisoner to the lock up and searched him and found on him one sovereign and seven shillings and sixpence in silver.
[Signed] Tobias Johns.

Taken and sworn before us at Bourke this 4th day of August 1870.
[Signed] James Scott, JP. and DM O’Byrne, JP.


    This deponent Henry Colless on oath states, I am a Publican, and live at Bourke, I know the prisoner before the Court “Thomas Firth”. He came to my public house yesterday evening the 3rd of August instant. I gave him in charge this morning about half past 3 o’clock the 4th of August instant to Constable Johns for attempting to commit sodomy of John William Flanagan, my nephew, a boy about the age of 13 or 14 years. At 12 o’clock last night I showed the prisoner the room he was to sleep in which was the same room where


John William Flanagan slept. The prisoner there stated, that he was not then going to bed.

    About 3 o’clock this 4th of August instant I received information from “John William Flanagan” that there was a man in his room, I was half asleep at the time and told Flanagan to go back to his bed, knowing that I had told the prisoner to sleep in his room. I then received information that he was afraid to go back, and was requested to get up, which I did, and about half way from where I slept to where


the prisoner’s room was. I saw the prisoner standing – I said “Who is that”, the prisoner replied “It is me” – I went into the bedroom and struck a light, there was no-one in the room, the prisoner came in just behind me, and I asked “Flanagan” in the presence of the prisoner if he was the man, Flanagan said the prisoner was the man. I then accused prisoner of committing the offence with which he is now charged, which he denied. I then sent for the Police and gave him in charge.


    By the prisoner: John William Flanagan in your presence distinctly stated, you were the man, he did not say that it was “Steve” alluding to another person for Flanagan thought your name was “Steve”, and said that the man who had committed the offence said his name was “Steve”. I never saw you from the time I showed you your room to the time I state I saw you half way between where you were to sleep and where I slept. I don’t remember you asking for a match



    By the bench: The prisoner was dressed when I saw him at the time I alluded to – 5 minutes had elapsed or more from the time I received information of the offence having been committed to the time I got up to ascertain further in the matter.
[Signed] Henry Colless.

Taken and sworn before us at Bourke this 4th August AD 1870.
[Signed] James Scott, JP., DM O’Byrne, JP.


    This Deponent, John William Flanagan, on his oath states, I am the son of Jeremiah Flanagan, and live in Bourke, I was 12 years old last birthday.

    About 3 o’clock this morning Thursday I was sleeping in a room at my Uncle’s Henry Colless public house in Bourke. I heard someone come in the room at that time. I said, “is that you Steve”, he said “yes” and asked me if he could lie in the bed with me – I said “Oh yes if you like but there are two more beds in the room you can lie in them if you like” – he said


“There are 2 men in them” he lay down in the same bed with me, and was quiet for about half an hour, he was snoring – I did not go to sleep from the time he came in – I felt the prisoner unbuckle my belt, and pull my trousers down. I had my trousers on, he unbuttoned his trousers then and pulled me up to him, and turned my back to him and I felt him touch my bottom with his “private”, he kept me in that position 4 or 5 minutes – I felt that I was wet behind – I felt his private a little in me, and it was at that time I felt getting wet – just before the


prisoner unbuckled my belt, he said “I will give you half a crown if you let me have a bit” I said No. After he had pulled me to him he said “I will give you any money you like, and rattled the money in his pocket, then said “I want to play with you” and said “there is no-one in the room, go and look, but our two selves. I jumped up ran out and told my uncle. There was no-one else in the room. The prisoner held me tight; his two arms were round my waist – I could not get away – I felt his private in the hole in my bottom – I am quite sure the prisoner is the man, he followed me


out of the room when I went to my uncle. I know his voice. I saw him playing cribbage at my uncle’s last night, and heard him speaking. I have no doubt at all but that the prisoner is the man – I saw the prisoner at 9 o’clock last night playing cribbage – I went to bed at 9.

    By the prisoner: When you first came in the room I took you for “Steve”, because when you first spoke I thought it was Steve’s voice.

    When Mr Colless came in the room, he asked if you were the man – I said “that is the man”. I did not say I thought


so – I said “I’m nearly sure” I said “that is the voice of the man” I heard you ask my uncle for a match.

    By the bench: When this offence was committed on me I recognised the voice of the person committing it as the voice of the prisoner – I heard the prisoner talking playing cribbage – after the prisoner spoke I knew it was not Steve’s voice. I told my uncle I thought it was Steve’s but was not sure – I tried to get away from the man, but did not call out loud. I said “let me go”. When the prisoner said I want to play with you I thought it was to play with my private. I have not heard of this


offence before. I do not know what buggery means. I have heard the word often before.
[Signed] JW Flanagan.

Taken and sworn before us at Bourke this 4th August AD 1870.
[Signed] James Scott, JP., DM O’Byrne, JP.

    John William Flanagan, recalled on oath states:– I have seen the prisoner frequently before, and heard him speak, and have spoken to him when he was in goal. I supply milk to the gaol – I have spoken to him when he was working at the culling in the gang.
[Signed] JW Flanagan.

Taken and sworn before us at Bourke this 4th August AD 1870.
[Signed] James Scott, JP., and DM O’Byrne, JP.

~ ~ ~ ~ ~

Statement of the Accused.

New South Wales, Bourke,
TO WIT                              }

Thomas Firth stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this fourth day of August in the year of Our Lord One thousand eight hundred and seventy for that he, the said Thomas Firth on the 4th day of August AD 1870 at Bourke, in the Colony feloniously did assault one John William Flanagan, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said John Flanagan; and then and there carnally knew him knew the said John William Flanagan, and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said John William Flanagan did commit and perpetrate the detestable 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 cause to be read to him by us, the said Justices, (by/or) before whom such examination has been completed; and we, the said Justices, 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 Thomas Firth and the witnesses for the prosecution Tobias Johns, Henry Colless and John William Flanagan being severally examined in his presence, the said Thomas Firth is now addressed by us as follows:– “Having heard the evidence, do you with to say anything in anser 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 Thomas Firth saith as follows:– “I am innocent but would like myself and the boy to be examined by the doctor.”
[Signed] Thomas Firth.

Taken before me at Bourke in the said Colony, the day and year first mentioned above.
[Signed] James Scott, JP and DM O’Byrne, JP.


    Thomas Edward Roberts, on his oath states, I am a legally qualified Medical Practitioner, and live at Bourke – between 10 and 11 o’clock on the fourth of August instant I examined the youth John William Flanagan at the request of the Bench of Magistrates with the view of ascertaining that whether or not he had been the object of an unnatural assault. I made a most careful examination but could not perceive any marks of any violence having been used – a further examination with the microscope revealed no spermatozoa in the moisture about the


anal orifice. I have also examined by desire of the Bench the privates of the prisoner “Firth” and the conclusion I have arrived at is that the disproportion of the respective parts in the two person is incompatible with penetration having occurred.
[Signed] TB Roberts MD.

Taken and sworn before us a Bourke this 5th August AD 1870.
[Signed] James Scott JP and DM O’Byrne JP.


    Committed for trial at the next Circuit Court to be held at Bathurst on the 17th of October 1870. [Signed] James Scott, JP and DM O’Byrne, JP.

~ ~ ~ ~ ~

Justice A Stephen’s Notebook 2


[Bathurst, 17 Oct 1870]

    Thomas Firth. Attempting to commit an unnatural offence on John William Flanagan at Bourke on 4th August

    Hy [Henry] Colless. Publican of Bourke. A boy named John William Flanagan is his nephew: does not live with him but slept in his house on 4th August. The Prisoner came to his house & said (?) (?) (?) (?) stay the night & he said yes. I asked him (?) he (?) take a wash – and showed him into the boy’s room. The same night very late I showed prisoner into the same room. Flanagan was then in bed: sleeping on a mattress in the corner of the room. There was only one bedstead. On (?) (?) prisoner (?) to sleep. Early in the morning … before daylight … the boy came to me and


made a complaint. I got up and went towards the room and passed a man near the pantry. I said who is that and the man said It’s me. It was the prisoner’s voice. I went to the room with a candle and (searched ?) and was no one there. The prisoner came in and seemed surprised & said what’s the matter? – I asked the lad in prisoner’s presence if he was sure that was the man & Flanagan said oh yes it was. Prisoner said Do you) (?) that I could be guilty of such a thing? – I have known prisoner several months. Don’t (?) trade or business. I once employed him as a labourer.

    Cross-examined. I had a conversation with the lad in the (verandah ?) after he had first come to me to complain. After that & after I had given him in charge I (?) called to see Mrs Kelly who was an old woman of 40 staying in my house for a time (?) charity & she begged me to turn the billiard


marker “Little Harry” out of her room. I found him beastly drunk and turned him out of the room. He was in a corner of it and I discharged him.

    John William Flanagan. Son of a dairyman at Bourke. Been there with me for (?) (?) 2 yrs. 3 I used to take milk to the gaol and (?) the prisoner there. Once he spoke to me. Asked me about a horse. I was sleeping on the floor on Wednesday night in August on a mattress. 4 Went to bed about 9 at night. Did (?) (?) (?) prisoner was to sleep in the same room. I was awakened in the dark by the prisoner’s kicking against my feet. Asked me if he lie down there and I said yes if he liked. After that he crawled up to me & pulled me to him and unbuttoned his trowsers – I told him to let me go. He held me tight & unbuttoned my trowsers and put his private


parts in me in my bottom – I felt wet. When he first got hold of me I was asleep. I said let me go & he said better hold my tongue. I thought at the first that it was Steeves – – his voice – but after I heard his voice 2 or 3 times I (?) that it was the prisoner – 5 After he had put his (privates ?) to me he said I only want to play with you. He said once that there was only us two in the room & that if I would “give him a bit” he would give me 5 shillings. That was before he pulled my belt off: he began (?) pulling my belt off.

    Cross-examined. Watty the barman slept not far off:– at the far end of the next room. The man spoke in whispers. I (?) Steeves (?) (?) in gaol … and once riding after horses. I did not know prisoner’s name. When he first came to the bed – – at my feet – I said who is that? – & he said my name is Steeve. I thought at first that it was Steeve. Saw him come out


 to the room when he went to the pantry as my uncle came by. While my (uncle ?) was dressing I went in the verandah and saw him come out of the room. It was dark: but I could see him plain. It was moonlight – shining.

    It is stated by the prisoner that he wants the evidence of the surgeon. And Manning states in reference to him that the surgeon expressed an opinion that (?) (?) (?) no penetration: which opinion (?) (?) adopted (?) the Attorney General. The lad (?) (?) (?) otherwise, & the fact even (?) (?) so; but the safer conclusion was that as (?) (?) (?) (?) (?) a mistake.

    Guilty. Four years Imprisonment in Bathurst Gaol & then to find sureties (two in £20 each) for Good Behaviour after Twelve Months –

~ ~ ~ ~ ~

The Bathurst Times, Wed 19 Oct 1870 6

MONDAY 17 October 1870.
(Before his Honour Sir Alfred Stephen, Chief Justice)

    HIS HONOUR took his seat on the Bench at 10 o’clock.
    The barristers present were Messrs. JGL Innes, and CJ Manning (Crown Prosecutor).
    The attorneys in attendance were Messrs JN McIntosh, WTA Shorter, W Morgan, JJ Kearney, and SG Fletcher.
    Judge’s Associate: Mr CB Stephen.
    The proclamation against vice and immoralty [sic] having been read–
    Mr Manning handed in his commission as Crown Prosecutor.


    Thomas Firth was indicted for that he did, on the 4th of August, 1870, at Bourke, feloniously assault one John William Flanagan with intent to commit an unnatural crime.
    The prisoner was undefended.
    Plea: Not Guilty. 
    The case was clearly proved, and the prisoner was found Guilty. 

    In answer to the usual question, the prisoner said he was innocent of the charge.

    His Honour, before passing sentence, said that the law for the punishment of this description of crime was singularly defective. His own opinion was that the most suitable punishment would be flogging. There was no man in New South Wales had a greater horror of that kind of punishment than he, because it was so degrading to the person who suffered it; but when a man so far forgot his nature and made himself worse than a brute, it was impossible to degrade him more than he had degraded himself. His Honour, after remarking that he agreed with the verdict of the jury, sentenced the prisoner to four years’ imprisonment in Bathurst gaol, and at the expiration of that time to find sureties (himself in £50 and two sureties in £20 each) for his good behaviour for the period of twelve months.

    The prisoner: Couldn’t I be sent to Sydney. I have friends there who would occasionally visit me, but I don’t know anyone here.

    His Honour: That’s the very reason why you should remain here; I do not intend the sentence to be a farce.

    The prisoner further stated to his honour that the “climate didn’t agree with him,” but he was informed that the place of his sentence could not be altered.

    The prisoner was then removed to gaol.
    The court adjourned at 4 o’clock pm.


1  SRNSW: NRS880, [9/6533], Supreme Court, Papers and depositions, Bathurst, 1870, No. 639. Emphasis added.

2  SRNSW: NRS7701, [2/7094], Judiciary, A Stephen, CJ. Notebooks Circuit Courts, 1841-75, pp. 70-4. Emphasis added.

3  Mn: (?) 13 months.

4  Mn: It was 3 on (?) (?) I went to Constable Jones abt ½ p. 3.

5  Mn: I ran off to my uncle next door

6  The Bathurst Times, Wed 19 Oct 1870, p. 2.