Depositions for George Bailey 24 Apr 1879 Bathurst trial 1
Police Office, Hill End
25th January 1879
Memorandum of Depositions Transmitted.
Names and description of the persons committed: George Bailey
Nature of the Charge: Unnatural Offence, to wit sodomy.
Date of Committal: 25th January 1879.
Names of Witnesses bound to appear: James Heap, Thomas Purcell, Andrew McMahon.
To what Officer and Place these Depositions have been sent, and when: To the Honourable the Attorney General Sydney 25th January 1879.
[Signed] Alfred Burne, Clerk of Petty Sessions.
~ ~ ~ ~ ~
(M., 11 & 12 Vic. Cap. 42.)
Depositions of Witnesses.
Hill End,
TO WIT. }
Photo ID: SRNSW 4346_a020_ a020000031.jpg
The examination of James Heap of Ulamalah in the Colony of New South Wales, shepherd, Thomas Purcell Senior Constable of Hill End in the Colony of New South Wales, and Andrew McMahon of Ulamalah in the said Colony, Overseer taken on oath this 25th day of January in the year of Our Lord one thousand eight hundred and seventy nine at Hill End 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 George Bailey who is charged this day before us for that he the said George Bailey on the 21st day of January at Ulamalah in the said Colony, did commit an unnatural offence on the person of James Heap of Ulamalah, Shepherd, in the Colony aforesaid.
[Signed] JW Flood, PM., Robert Rawsthorne, JP.
1
Thomas Purcell being duly sworn maketh oath and saith as follows: My name is Thomas Purcell I am a Senior Constable stationed at Hill End. Yesterday the 22nd instant a lad named James Heap came to the Police Station at Hill End and gave me certain information, in consequence of which I accompanied him with Constable (?) To the prisoner’s residence, about 10 miles from Hill End. On arrival at the prisoner’s residence I called the lad Heap inside. Heap then stated in the presence of the prisoner that on the previous night he called with a pair of trowsers and a pair of braces for the prisoner, that the prisoner took up a bulldog pistol and ordered him to take off his boots and trowsers, he then ordered Heap him to lay on a bunk in the hut and there committed an unnatural offence upon him, telling him that if he made a noise, or resisted, that he would blow his brains out. There is no house within miles of the prisoner’s hut that I know of, I then searched the prisoner’s hut for the trowsers and braces referred to by Heap also the bulldog pistol all of which I found and which I now produce.
By the Bench: The pistol is not loaded. I might The prisoner denied the charge made by Heap using the words, “get
2
out. I never did such a thing in my life.” I cautioned the prisoner after his arrest against making any statement that might be used in evidence against him, he stated also that he was too old, so as to render it impossible to commit an offence of that kind. Now when I found the pistol it was on half cock and capped.
[Signed] Thomas Purcell, Senior Constable.
Taken and sworn at Hill End this 23rd day of December [sic–January] 1879 before us.
[Signed] JW Flood, PM and Robert Rawsthorne, JP.
The Police here apply for a remand to the Bench. Which was granted until Saturday the 25th of January next.
[Signed] JW Flood, PM.
3
James Heap being duly sworn maketh oath and saith as follows. My name is James Heap.
By the Senior Constable: I am a Shepherd and live at Ulamalah. I know the prisoner. Last Tuesday evening I was coming past the prisoner’s place with some clothes. This was on the 21st instant. Prisoner called me to come inside and I did so, he said “I am very poor off I want you to get me a pair of trowsers.” I said “what sort do you want?” He answered “a pair of dark moleskin.” He also said “bring me a pair of cotton braces.” I left the prisoner’s place then and came to Hill End. I came to Mrs Meagher’s store and got the trowsers and braces. I then went back to the prisoner’s place and gave him the trowsers. It was about half past ten in the evening of the same day when I reached the prisoner’s place. I presented the trowsers to prisoner, prisoner said “you will ruin yourself if you keep telling so many lies.”
By the Bench: This had referred to my having made a promise to return to his place at 9 o’clock, he said “I am going to read you the riot act,” he also said “I have a loaded pistol laying here somewhere.” He was looking for the pistol but could not find it. I took it off the (?) and said “Here it is.” I said to prisoner “what was you going to do with that?” Prisoner said, “I was going to shoot a possum that was out there just now.” Prisoner held the pistol up to the light and
4
said it was loaded. I saw the pistol was half cocked and capped. He said “Come and sit down here, I want to speak to you.” I went and sat down on a stool.
By the Bench: The pistol was in his hand. “If you do not please me this very night I will shoot you.” I said to prisoner “What is it you want me to do?” Prisoner said “Put off them boots and trowsers”. As quick as you like I said “What do you want to do?” He said “I mean to have it right this very night so there is no more of your humbugging.” The prisoner again said “Pull off them trowsers and boots”. I said “What is it you mean to have right?” He said “You know very well what I mean to have right.” I then pulled off my boots and trowsers, he then undone his trowsers. He said “Here is a plaything for you.” He said “Take this into your mouth a few times until it stands.” I said to prisoner “This will make me vomit sure enough.” He said “I do not care for that”, he said “Put it in and pull it out a few times until it stands and then lay on that bed.” He then said “Lay on your back there.” He took a small bottle from the table which contained some sort of lard. He then said “I must grease your ass for you are tight.” Prisoner then tried. He said “I have been too long and my prick has gone to sleep again.” Prisoner took some water out of the bucket with a Pannikin and a piece of soap and flannel. He then washed his instrument with soap
5
and water. He said “I will try again,” he said “For I am not to be beat.” He said did the same as I stated before and then failed. He said “By God, I am not to be beat, for I mean to have it right this night.” He again done the same thing as I stated and succeeded. He said “I am perfectly satisfied.” He also said “I have spent twice”. He said “You may sit down on that stool.” I then immediately picked up my trowsers and commenced to put them on when prisoner again raised the pistol and said “Don’t you put them trowsers on or else I will do with you,” prisoner said I should stop with him until morning. I said “What is that for?” He said “I mean to have it again before you go for as you have deceived me and not come according to promise. I believe we will not be together any more.” I stopped at most 2 hours and a half altogether. I did not know whether to wait until Bailey went to sleep and then put on my trowsers and go, or not. I told prisoner that I would bring him some flour and beef in the morning. Prisoner said “You can go. God’s blessing on you.” He said “Here, before you go come and take this in your mouth a few more times before you go.” I said “This is enough to make me vomit. Why can’t you let me go at once?” He said “Take it in a few times. You will have to do it before you go.” He said then, “Come on, you will have to do it. It is
6
no use.” I done so once and then said, “OK I’m going.” He said “What time will you be here tomorrow?” I said “At 12 o’clock”. He took a book from the table and said “Before you leave I want you to swear that you will never deceive me any more.” I said “it is not a testament and I will not swear.” He said “This is as good as any testament so you had better swear now.” I said “I prefer doing it tomorrow,” I said “I will be there at 12 o’clock tomorrow without fail.” He also said that I was to do the same thing to McMahon’s son as he had been doing to me. He said for to put it into his mouth first and then he said I was to put it into his ass. I told prisoner that I would not do that. He said “All right, you have yourself to please.” I then left prisoner’s place. I told Mr McMahon about it immediately I got to his place which was 2 o’clock in the morning. I then came into Hill End and gave information to the Police.
By the Bench: On the 22nd of January, the day after the offence was committed by the prisoner on me I went with the Police to the prisoner’s place and gave him in charge. The prisoner said when he heard the charge, “Who put that into your head?”
By the Senior Constable: I did see the trowsers, pistol and braces that I took to the prisoner’s home again in your charge. The pistol trowsers and braces are in the same state as they were when I took them
7
the prisoner’s house. The ones you produce are the same. All that occurred at the prisoner’s hut of which I have given evidence was against my consent. The reason I submitted was that I was afraid he might shoot me if I did not do as he wanted me. I know of my own knowledge that the prisoner shot a man there before. That was operating in my mind. I know that the offence was fully committed on me because I felt his nature. I am 18 years old and am of sufficient age to understand about these things I am speaking of. I did notice a moisture after the prisoner stopped. The prisoner said when he was done that I was as good as any woman. I have motive whatever for stating anything untrue in this matter. The prisoner and myself were on good terms and I have nothing to gain by telling an untruth with regard to this charge against the prisoner. Seeing the pistol half cocked and capped I believed it to be loaded and I do not know now as to whether it is loaded or not. The prisoner did not keep the pistol in his hand all the time, but kept it within reach of him. There would have been no use my screaming or calling out as no-one lives near. The nearest house is a mile and a half from the prisoner.
By the Bench: I do not know how the prisoner gets his living. He has been in the habit of begging. He lives on the road to Orange
8
about 6 miles from Mill End. It is on Government land but is rented by Mr Cadell.
By the Senior Constable: The prisoner has committed similar offences upon me as the one I have just described. This one was when I was a small boy between 13 and 14 years of age and not able to resist him. I did not report the offences committed on those occasions as the prisoner said that if he heard the track of my tongue death was my doom. I kept away from the prisoner for a length of time in consequence of that threat; am although sent on messages for the prisoner that I returned and stated I had been there when I hadn’t been as I was afraid of the prisoner.
By the prisoner: When you came to my hut with the Police did I not say, When you made the charges against me, who put that into your head?
[Signed] James Heap.
Taken and sworn at Hill End this 25th day of January 1879 before us.
[Signed] JW Flood, PM and Robert Rawsthorne, JP.
9
Andrew McMahon being duly sworn maketh oath and saith as follows.
By the Senior Constable: My name is Andrew McMahon. I am a Station Overseer and live at Ulamalah. I know the prisoner, I also know the last witness Heap. He is shepherding on the station of which I have the charge. Heap left the station on the 21st inst to go to Mile End. He left to go on his own business. I allowed him to go. He left as near as I can guess about half past 3 o’clock in the afternoon. He returned home at 2 o’clock on the following morning. When he returned he asked me for a day, and when he asked me he seemed excited. The excitement was not caused through drink, he was perfectly sober. I asked him what he wanted the day for and he said “Come to the kitchen and I will tell you all,” he made a long statement there to me from the statement he made to me I sent him to Hill End to see the Police. I do not know or did never hear Heap say that he had any ill-feeling towards the prisoner. I do not know of any motive that Heap could have for making his statement to me. (?) as I believe he and the prisoner to be always on very good terms. I have no ill-feeling towards the prisoner whatever nor do I wish to injure him. The only motive I
10
had in sending Heap in to the Police was from the statement he made to me and considered it my duty in consequence.
By the Bench: The distance between the prisoner’s hut and my home is about 6 miles. I have known Heap for about 18 months, since I have had charge of the station, and as far as I know he has always conducted himself well.
[Signed] Andrew McMahon.
Taken and sworn at Hill End this 25th day of January 1879 before us.
[Signed] JW Flood, PM, Robert Rawsthorne, JP.
All the evidence having been read over the accused was committed to take his trial at the next Court of Assizes to be holden at Bathurst on Thursday the 24th of April next.
[Signed] JW Flood, PM.
~ ~ ~ ~ ~
(N., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales, Hill End
TO WIT. }
Photo ID: SRNSW 4346_a020_ a020000030.jpg
George Bailey stands charged before the undersigned, two of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 25th day of January 1879 in the year of Our Lord one thousand eight hundred and seventy nine for that he, the said George Bailey on the 21st day of January at Ulamalah, in the said Colony, did commit an unnatural offence on the person of one James Heap 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 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 George Bailey and the witnesses for the prosecution James Heap of Ulamalah Shepherd, Thomas Purcell of Hill End, Senior Constable and Andrew McMahon of Ulamalah Overseer being severally examined in his presence, the said George Bailey 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 George Bailey saith as follows:– “I have nothing to say.” Taken before me, at Hill End, in the said Colony, the day and year first above mentioned.
[Signed] JW Flood, PM.
~ ~ ~ ~ ~
(O. 1, 11 & 12 Vic., Cap. 42.)
Recognizance to Give Evidence.
New South Wales, Hill End
TO WIT. }
Be it remembered, that on the 25th day of January in the year of Our Lord one thousand eight hundred and seventy nine, Thomas Purcell a Constable of the Police Force, of Hill End in the Colony of New South Wales, James Heap of Ulamalah in the said Colony, and Andrew McMahon of Ulamalah in the said Colony, 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 say before mentioned persons shall fail in the conditions endorsed. [Signed] Thomas Purcell, James Heap and A McMahon. Taken and acknowledged, the day and year first above mentioned at Hill End in the said Colony, before me.
[Signed] JW Flood, PM.
The condition of the within written Recognizance is such, that whereas George Bailey was this day charged before JW Flood Esquire, PM and Robert Rawsthorne Esquire JP two of Her Majesty’s Justices of the Peace for the said Colony, with having on the 21st of January 1879 committed an unnatural offence on the person of one James Heap at Ulamalah in the Colony of New South Wales aforesaid. If therefore they, the before mentioned persons shall appear at the next General Court of Quarter Sessions Assizes to be holden at Bathurst in and for the Colony of New South Wales, on the 24th day of April next at nine of the clock in the forenoon, and then and there give such evidence as they know, upon and information to them RofC: be then and there preferred against the said George Bailey for the offence aforesaid, to the Jurors who shall pass upon the trial of the said George Bailey then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] JW Flood, PM.
~ ~ ~ ~ ~
[On the depositions’ cover sheet is the following]
Bathurst CC
24 April 1879
No. 432
Depositions.
Regina No. 5.
George Bailey
Buggery
(?) WCW [William Charles Windeyer] AG
Committed at Hill End
on 25 January 1879
~ ~ ~ ~ ~
Buggery
[Initialled] WCW [William Charles Windeyer] AG
29/1/79
~ ~ ~ ~ ~
The Bathurst Times, Sat 26 Apr 1879 2
BATHURST CIRCUIT COURT.
THURSDAY, APRIL 24, 1879.
(Before Mr GC Davis, Acting Judge.) 3
His Honour took his seat at 10 o’clock.
The barristers present were – Mr E Bennett (Crown Prosecutor). Mr E Cohen, Mr JH Want, Mr D Buchanan, Mr C Heydon, Mr Pitcairn, Mr JJ (Reece ?), Mr WH Cooper.
Attorneys: Messrs J[ohn] Williams, (Crown Solicitor), JN McIntosh, GM Dunn, F Curtis, JC McLachlan, TH Hellyer, A West, W Morgan, LF Heydon, Coonan, A Thompson, J McPhillamy.
Mr C Cowper, Sheriff, and Mr Benjamin Lee, Police Magistrate were also present.
Mr John McIntosh (Acting Associate) read the commission appointing Mr Davis as Judge at this Court and the latter gentleman took the oath to faithfully discharge the duties of his position.
The Acting-Associate next read her Majesty’s proclamation against vice, immorality, and crime, and then called the names of the jurors summoned to attend the Court.
…
UNNATURAL CRIME.
George Bailey, an aged man, was charged with having on the 21st January, 1879, at Duramana, committed this crime.
The prisoner pleaded not guilty, and stated that he was too poor to fee counsel, and desired his Honour to appoint some one to defend him.
His Honour said there were no gentlemen of the bar in Court or he would accede to the request; he, however, would undertake to watch the case in prisoner’s behalf.
The Crown Prosecutor opened the case and called:
Constable [Thomas] Purcell, of Hill End, who deposed to the circumstances of the case, and the arrest, as well as to certain replies which prisoner made, when charged with the offence by James Heap in his (witness’s) presence.
James Heap, the prosecuting witness, and quite a young man, said prisoner called at his hut, and asked him to buy a pair of trousers and a pair of braces; he bought them; prisoner had a pistol with him, and witness asked what he was going to do with it, and prisoner replied “to shoot a ‘possum;” prisoner then made a request, and threatened to shoot witness if he did not comply; the offence was then committed.
Mr Pitcairn, barrister, here came forward and said he was not in Court when the prisoner requested the aid of counsel; but he would now, with his Honour’s permission, undertake the defence of the old man.
His Honour consented, and the learned counsel proceeded to cross-examine the witness.
The case for the Crown being closed, Mr Pitcairn addressed the jury, who, without leaving the box, returned a verdict of not guilty.
Prisoner was discharged.
The court adjourned at twenty minutes to 6.
1 SRNSW: NRS880, [9/6644] , Supreme Court, Papers and depositions, Bathurst, 1879, No. 432. Emphasis added.
2 The Bathurst Times, Sat 26 Apr 1879, p. 2. Emphasis added.
3 Acting Judge, GC Davis’s notebooks could not be located at SRNSW.