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Deposition for John Mahoney 24 Feb 1849 Bathurst trial 1


Robert Rochester private soldier in the 11th Regt

of Blackheath £10

New South Wales
Hartley to wit.     }

Be it remembered, that the above named person acknowledge themselves himself bound to Our Sovereign Lady the Queen, Her Heirs and Successors, in the penal sums expressed against each of their respective his name, if they shall respectively he make default in the condition hereunder written.

    The condition of the above written Recognizance is such, that if the above bounden person do respectfully appear at the Court of present Circuit Court now being holden at Bathurst, on the 22nd day of February instant now next, at nine o’clock in the forenoon, or at such other Court, time, and place, as Her Majesty’s Attorney General for the Colony shall, by a special notice, appoint, and then and there give such evidence as they respectively he know upon an information to be then and there exhibited on behalf of Her said Majesty against John Mahoney late of Blackheath for Sodomy and shall not depart thence without leave of the Court, then this Recognizance is to be void, or else to remain in its force,

    Taken and acknowledged before me, one of Her Majesty’s
    Justices of the Peace for the Colony of New South
    Wales, at Hartley
    in the said Colony, this 22nd day of February, 1849

[Signed] Heyward Atkins, [PM] JP.


John Mahoney Ship Larkins [2] 1829.
Seven years and now serving a Colonial Sentence in Irons at Blackheath Stockade.
Being charge [sic] with the committing an unnatural offence on the body of James McArdle.

New South Wales
Hartley to wit     }

    James McArdle seven years 1840. Ship Pekoe [1840] now serving a Colonial Sentence in Irons for Twelve Months at Blackheath Stockade being duly sworn states:
I was transported to this Colony for stealing oats and received sentence of 7 years. The Colonial sentence I am now serving was for two small pieces of soap being found in my hut and identified as the property of Mr Can Smith of Patterson River. I have held a ticket of leave before I became free for three years for the district of Patterson. This The present punishment is the first Colonial punishment I ever was sentenced to. I know the prisoner at the Bar he is in the same party with the same myself in the Blackheath party and is confined in the same ward with me at night. On Monday night the 12th Inst the prisoner was sleeping laying next to me I had fallen asleep and was awakened by the prisoner groping with his hands at my latter end – I immediately checked him


asking him what he was about, he gave a heavy groan and threw himself away from me. Nothing further transpired that night. On the Wednesday night following while sleeping I was awakend [sic] by the prisoner at the bar being into my body through posterior. I caught him by the private parts and struck him with my fist. When the prisoner called “Murder” and immediately the Sentry or some soldier came in. I immediately told the soldier and the men in the ward what had occurred and suggested that the Doctor had better be sent for. The prisoner was immediately put into another box. The prisoner did enter my person. I feel painful and sore to this day. I caught him when he was in my body and I felt his parts leaving my body. No medical man has examined me. There were three laying on the Birth [sic] together the third man on our birth was Davis.

    By the Prisoner: can I
[Signed] James McArdel.

    Being recalled, found wet about his my posterior on awaking and that was the principal reason he I wished the Medical man to be called.
[Signed] James McArdel.
Sworn before us at Hartley this twenty first day of February one thousand eight hundred and forty nine.
[Signed] Howard A Wright JP, LH Scott JP.


    John Davis serving a Colonial sentence of six months at the Blackheath Stockade being duly sworn states:

    I was sleeping on the same birth with McArdel and the prisoner at the bar on Wednesday last. McArdel was in the middle. I was awoke in the night by the cry of murder and I sat up in the bed and inquired what was the matter. James McArdel accused the prisoner of committing an unnatural offence on him and called for the sentry. Corporal Salt and a file of the guard immediately came in and on hearing the charge removed the prisoner at the Bar from the box. McArdel wished that the doctor might be sent for to examine him. I never heard any bad feeling or angry word pass between McArdel and prisoner at the Bar during the six weeks I have been at the Stockade.
[Signed] John (his X mark) Davis.
Sworn before us at Hartley this twenty first day of February one thousand eight hundred and forty nine.
[Signed] Heyward Atkins JP, LH Scott, JP.


    Robert Rochester private soldier in HM 11th Regiment of Foot on detachment at Blackheath Stockade being duly sworn states:

    I know the prisoner at the bar he is serving a sentence at Blackheath. On Wednesday week last night last I was on Sentry on the ward in which prisoner at the bar was sleeping. I heard a person call out that “he had caught him at last” that “he had been long looking for him” that “he knew he would do it” – I heard the cry of murder also. I went and taped at the door and inquired what was wanting but did not receive any distinct answer. I then went and called the Corporal of the guard. I was present when the door of the ward was opened by the Corporal of the guard. I accompanied the Corporal into the Ward and heard what was said. When I entered the ward I saw McArdle (now brought before me) laying naked on his litter, and he said to the Corporal “See what a state the blaguard [sic] has left me in.” I immediately surmised what had occurred and (made ?) suggested to the Corporal that the man now at the bar should be removed, which


was done; another prisoner, Davis, was laying on the same litter with McArdle and prisoner at the bar he was awake when we entered with the candle.
[Signed] Robert Rochester.

    John Mahoney asked if he requires any witness? A. “Does not”

Sworn before us at Hartley this twenty first day of February one thousand eight hundred and forty nine.
[Signed] Heyward Atkins JP, LH Scott JP.

    Committed to take his trial at the Circuit Court now being held at Bathurst for the offence of Sodomy.
[Signed] Heyward Atkins JP, LH Scott, JP.

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[On the depositions’ cover sheet is the following]

Bathurst Circuit Court
Hartley “19”
John Mahoney B[ond]

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Police Office Hartley
February 22nd 1849
John Mahoney
committed for trial
Before Manning J
24th February 1849
Not Guilty

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Justice WM Manning’s Notebook 2 3

[Bathurst, February 24 1849]


John Mahoney (15)
Bond without (from ironed gang). Sodomy. 
Not Guilty

    James McCardell 4 Prisoner in the stockade Blackheath. Came about 6 weeks ago. Was sentenced by Maitland quarter sessions for 12 months. Three of us slept in one berth & three in another in the box. There was plenty of room – we might have kept 4, 5 or 6 feet away from one another. Monday night 12th instant, I went to bed as usual. I awoke. Found prisoner lying over close to me – groping down my thigh with his hand. I said, what are you about. He threw himself


on his back as if sleeping. I said no more. 5 Wednesday night 14th – I went to bed as usual – awoke – found prisoner doing an unbecoming act. I grabbed him in the part. I caught him by the private parts. He called out for sentry – who came. I asked for sentry to go for Doctor to examine me. I was awoke by him working at my back part. I am quite certain he penetrated my person with his private parts. He I caught him by them before it was right out – That was the reason that I called for the Doctor. He shouted, murder. I can’t tell what time of night it was. I found myself all wet behind. That was the reason I called for the Doctor. It was outside of course. 

    Cross-examined by prisoner. I don’t know whether you were drunk or not. I know you were so on Monday night. That was why I did not report it.


I did not suppose you would offer it again. I told a man, but he advised not to say anything for fear of a row. 

    (Prisoner. I leave it to the gentlemen to say whether they think it could be done be without a man being awakened if I was drunk & don’t know what account to give) I don’t know how the liquor was got. The prisoner was what they call a “providential man,” had liberty about, was not in irons, was cook – I don’t know how the prisoner got liquor.

    Cross-examined by me. I came to the Colony 7th November 1840 – 7 years – never had any (criminal ?) sentence before the present one. Held Ticket of Leave. Why free. No quarrel with this man.

    Cross-examined by prisoner. On the Monday night, you were wrestling with another man. No signs of liquor on Wednesday.

    Cross-examined by me at considerable length.


    John Davis from ironed gang. I am in for 6 months. Have been there 6 weeks. Sleep in the same berth with prisoner & last witness. I saw I was awoke in middle of night by the cry of murder from one of them. I said, In the name of God what’s the matter. McCardell called for the sentry to bring the Sergeant (& ?) the Doctor to examine him. The sentry was outside = McCardell said there was a man – prisoner – committing an unnatural crime. Corporal & guard came & removed prisoner. McCardell had hold of prisoner at the time. They were struggling together. Never heard of prisoner & McCardell having any falling out.

    Cross-examined by prisoner. I think prisoner had been drinking on the road that night. I believe It was the same night that you were going to wrestle with Scotchie. It was not a lark. It was the same night


with the accusation. There was no wrestling on on any other night. Prisoner had been drinking more or less every day I think. No wrestling on Monday night. I don’t go out on the works. I am billeted off a barber & lamplighter. I do nothing else. That’s my hard labour.

    Robert Rochester. Private in 11th Regiment. I was sentry on Wednesday night when alarm given. Between 10 & 12 at night voice cried out “sentry.” Then cry of “murder.” Don’t know the voice. I went & knocked – & asked what was the matter. No answer. The two were arguing. Heard one say “I’ve caught you at last. I have been long looking out for you & I’ll do for you now” –


Don’t know which spoke. I fetched corporal & guard – went in – prosecutor in his berth – blankets all off – prisoner in his – all covered up. McCardell said to corporal, Here’s a pretty state I am left in by the villain. I did not hear more – nothing about the Doctor. We separated the men. Put them into different boxes. Prisoner did not say anything in my presence. I can’t say whether the prisoner was in liquor. I have seen prisoners in liquor, but don’t know how they got drunk.

Jury retired for about ¾ of an hour
Not Guilty.
February 26 notes taken in Book for Civil business

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The Bathurst Advocate, Sat 24 Feb 1849 6


    The Bathurst Assizes commenced this day, and as usual, occasioned a considerable influx of visitors. His Honor Mr Justice Manning, accompanied by the High Sheriff, and Clerk of Arraigns, arrived at Rotton’s Hotel this morning, at about half past eight o’clock, and at ten proceeded to Church, after which, they immediately went to Mr White’s Hotel, where the Court is at present held, the New Court House being as yet in an unfinished state. The calendar contains the names of twenty-one prisoners, none of the offences being of a capital nature. At eleven o’clock, the Court was opened, and after the proclamation against Vice and Immorality being read, the business of the Court proceeded.

    The Barristers present were– The Attorney-General and Mr Holroyd.
    Attorneys– Messrs JR Brennan, J[ohn] Moore Dillon (Criminal Crown Solicitor) Dowling, McIntosh, Stephen, Home, Wadeson, and Walsh.

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The Sydney Morning Herald, Mon 26 Feb 1849 7


    His Honor Mr Justice Manning, accompanied by Mr Sheriff Young, and Clerk of Arraigns arrived in Bathurst about 9am and adjourned to Rotton’s Inn. About an hour after, His Honor attended divine service at All Saints’ Church, and opened Court about noon. The Attorney-General had arrived early on the previous day, and put up at Read’s Hotel.

    The barristers present were the Attorney-General and AT Holroyd, Esq. Attorneys, Messrs JW Bligh, JR Brenan, JM Dillon, WJ Dowling, JS Home, JN McIntosh, HF Stephens, S Wadeson, and J Walsh, Esqrs.

    After the usual proclamation for the suppression of vice and immorality had been read, the first case called was …

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The Sydney Morning Herald, Wed 28 Feb 1849 8




    John Mahoney, under sentence in irons, at the Stockade at Blackheath, was charged with an unnatural crime, perpetrated on another prisoner in irons at the same stockade, named McCardell [sic]. According to his account the crime had been fully perpetrated; but the Jury, after an absence of fifteen minutes, returned a verdict of not guilty, and the prisoner was discharged. During the trial it came out in evidence that a practice is suffered at this stockade that requires some investigation. It was stated that many of the men out at the works were often seen in a state of intoxication; that some who are employed as cooks, barbers, and lamplighters, had much idle time at their disposal, and employed themselves in making hats, &c; and that they were thus enabled to purchase liquors which many of them often freely indulged in, and very frequently were in a state of intoxication.

    Court adjourned until Monday morning, ten o’clock.

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The Bathurst Advocate, Sat 3 Mar 1849 9




    John Marney [sic], a convict, undergoing sentence at the Stockade, Blackheath, on the Blue Mountains, was placed at the bar, charged with having committed an abominable crime on the person of a fellow prisoner. The Jury acquitted the prisoner.

    The Court adjourned until Monday morning.

1  SRNSW: NRS880, [9/6352], Supreme Court, Papers and depositions, Bathurst, 1849, No. 19. Emphasis added.

2  SRNSW: NRS7326, [2/5831], Judiciary, WM Manning, J. Notebooks Criminal, 1848-49, pp. 176-81. Emphasis added.

3  Sir William Montagu Manning was born at Alphington, Devon, England on 20 Jun 1811 educated in Tavistock, Southampton and University College, London. In 1827 entered Lincoln’s Inn and was called to the Bar in 1832 later practising on the Western Circuit. He and his wife Emily Anne arrived in Sydney on the City of Edinburgh on 31 Aug 1837. Soon Manning was appointed a magistrate and subsequently held various legal positions including, in 1855, becoming solicitor general and during 1848-49 relieving Chief Justice Stephen in Equity. Since his arrival Manning had acquired a vast amount of real estate situated at Mulgoa, Kiama and the Illawarra and other places. After some absence in England Manning returned to Sydney in Nov 1859. Manning became NSW Supreme Court puisne judge on 28 Apr 1876. In Oct 1887 Manning resigned from the bench and died at Wallaroy, Edgecliff road, on 27 Feb 1895 and was buried in St Jude’s Church of England cemetery Randwick. ADB, 1851-1890, vol. 5, pp. 207-9. 

4  McArdle (aka McArdel) in transcript of depositions.

5  Mn: I did not.

6  The Bathurst Advocate, Sat 24 Feb 1849, p. 2.

7  The Sydney Morning Herald, Mon 26 Feb 1849, p.2.

8  The Sydney Morning Herald, Wed 28 Feb 1849, p. 2.

9  The Bathurst Advocate, Sat 3 Mar 1849, p. 2. Emphasis added.