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1858, James Cook - Unfit For Publication
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James Cook, 1858 1

Below also see: James Cook, 1871
James Cooke, 1878

 

The Sydney Morning Herald, Wed 17 Nov 1858 2 

CENTRAL POLICE COURT.
TUESDAY.

BEFORE Mr Forbes, Mr G Hill, Mr ES Hill, Mr Neale, and Mr Kettle.

    James Cook, charged with having, on Friday last, committed an assault with intent on a child of about seven years of age, was committed to take his trial for the offence at the Central Criminal Court.

~ ~ ~ ~ ~

Justice JN Dickinson’s Notebook 3

172

[Monday 6th December 1858]


Queen

v.

James Cook

 

1.  Assault on Delia Holmes with intent to ravish her.

2.  Indecent assault on Delia Holmes a female child 8 years old.

 

173

    Michael Kelly. Constable. I saw prisoner on night of 12th November at The Glebe. Then given to my charge by Mr Law “for violating a child 8 years old”. Prisoner said “You have the wrong man”.

    Edward Tinsley. I reside on Glebe road. I saw prisoner at 5 pm on 12th November on ground opposite my house leading to a paddock with two little girls. (Child brought in). That is one. I saw prisoner put his hands up that child’s clothes.

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That child went with prisoner. The other came along the Glebe road. Prisoner went (forward ?) taking child by hand through the fence. I went to the ground. I went to the paddock – did not see prisoner. I looked for him for 5 minutes. I met Mr [Benjamin] Poppleway, [Confectioner, Glebe Road, Glebe]. He went with me to the paddock. We looked for prisoner for 5 or 10 minutes. I met Mr Law afterwards. I saw prisoner leading child by the hand.

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    Prisoner saw me – let child go & turned back. I walked up to child. I then followed prisoner. Poppleway called out to prisoner. Prisoner stopt. Poppleway gave prisoner to my charge – till Policeman Kelly came. Blood on clothes of girl.

    Cross-examined. Prisoner about 50 or 60 yards off when I first saw him with the child. I swear prisoner is the man. I saw him. He was in his shirt sleeves. I saw him 20 yards from my house. Prisoner put his hands up child’s clothes in the ground before the paddock, 20 yards from my house.

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That was the first thing I observed.

    George Law. Dealer – reside at Glebe. I know prisoner. I saw him first on 12th November at Glebe behind a fence – a little girl with him. (Child brought in). That is the girl. She was standing up in front of him. His right hand at back of girl outside of clothes. I was 30 or 40 yards from the prisoner. Prisoner is the man.

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I called Tinsley & Poppleway.

    Ellen Holmes. Married – husband alive. I reside (Child brought in) at South Sydney. My child – almost 7 years old. I remember 12th November last. That morning I sent her to school. I next saw between 5 & 6 pm in (Parramatta ?) Street with Law, Tinsley & others. Dr (Rutter ?) not there then. I took child to Dr Rutter. I had examined her that morning. Nothing then the matter.

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Child made a statement to (?) after 7 pm.

    John Rutter. Surgeon to the Police. I remember 12th November last. Child brought to me that day. I examined her person. Drawers bloody with recent blood in leg opposite private parts. I examined them – on outside no injury – inside covered with blood – a lacerated (wound ?) size of pea. No further passage injured.

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Injuries quite recent. I saw her about 6 pm. Might have been inflicted by attempt to commit rape.

    Cross-examined. Might be also by the finger. I think rather by finger than by penis. Might be by accident or by using a stick. No blood on prisoner’s shirt or penis – he had no time to change his shirt.

    “Delia Holmes” is my name. Live in South Sydney with my mother.

180

I see the prisoner. I have seen him before one Friday evening by Post Office at the Glebe. My sister with me. Prisoner said to me “Come with me round the corner & I’ll give you a shilling.” I went with him. Sister did not – she went home. When I got round the corner prisoner took me up further up in the bush. He told me “to sit down in his lap”. I did so. He made me bleed.

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He put his finger up my clothes. He put a nasty thing near me – he took it out of his trowsers – he unbuttoned his trowsers. He then told me to go home. He put his finger to bottom of my stomach. I told him “to leave me alone”. He made me cry.

    Cross-examined. His finger hurt me. The man had no coat on.

    Ellen Holmes. Child’s name is “Delia Holmes”

182

    Mr Windeyer addressed the jury for the prisoner.
Verdict Not Guilty on 1st Count, Guilty on 2nd Count. 3 years on roads &c.

~ ~ ~ ~ ~

The Sydney Morning Herald, Tue 7 Dec 1858 4

CENTRAL CRIMINAL COURT.
MONDAY, 6 DECEMBER [1858]

Before Mr Justice Dickinson.

INDECENT ASSAULT.

    James Cook, a person between 40 and 50 years old, was charged with having, at Sydney, on the 12th [Fri]day of November last, committed an indecent assault upon a female child named Delia Holmes, aged seven years.

    The prisoner pleaded not guilty, and was defended by Mr Windeyer. The Solicitor-General prosecuted.

    The testimony of the witnesses sustained the indictment, and the prisoner was found guilty, and sentenced to three years’ hard labour on the roads.

~ ~ ~ ~ ~

Bell’s Life in Sydney and Sporting Reviewer, Sat 11 Dec 1858 5

CENTRAL CRIMINAL COURT.
MONDAY, 6 DECEMBER [1858]
(Before Mr Justice Dickinson.)


    INDECENT ASSAULT.—James Cook was indicted for indecent assault on a person of a female child named Delia Holmes, aged seven years, and received sentence of three years’ hard labour on the roads.

 


 

James Cook, 1871


The Sydney Morning Herald, Wed 27 Sep 1871 6

CENTRAL POLICE COURT.
TUESDAY [26 SEP 1871]

    Before the Mayor and the Police Magistrate, with Messrs Macintosh, Kippax, Evans, Lester, and Long.

    James Cooke, a seller of pies, was charged by constable McGregor with the commission of an unnatural offence, in York-street, between 12 and 1 o’clock this morning. The evidence of the apprehending constable, with that of William Stroud, watchman at McArthur and Company’s warehouse, who appear to have been watching during the whole affair, and of a boy named [William] Lyall, 11 years of age, was taken, in reference to the charge, whereupon prisoner was committed to take his trial for the offence at the Central Criminal Court.

~ ~ ~ ~ ~

Depositions for James Cook 17 Nov 1871 Sydney trial 7

Depositions of Witnesses. 

New South Wales, City of Sydney,
TO WIT                                    }
The examination of John McGregor a Constable of the Police Force, in the Colony of New South Wales, William Stroud of Sydney, Watchman and William Lyall of Sydney, in the said Colony, taken on oath, this twenty sixth day of September in the year of Our Lord One thousand eight hundred and seventy one, at the Central Police Court, Sydney, in the Colony aforesaid, before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, in the presence and hearing of James Cook [aka Cooke] who is charged this day before me, for that he, the said James Cook, on the twenty sixth day of September instant at Sydney, in the said Colony, did feloniously make an assault upon the said William Lyall and him did then beat ill treat and wound with intent that detestable and abominable crime called Buggery with the said William Lyall feloniously, wickedly, diabolically and against the order of nature, to commit and perpetrate.

1

James Cook

    Attempting to commit an unnatural offence. Constable John McGregor on oath states:– At about half past 12 o’clock this morning I was close in front of Messrs McArthur and Company’s store in York Street, Sydney, now undergoing alterations. I saw prisoner before the court, who carries pies about for sale in company with boy William Lyal [sic] now before the court come up King Street and stood at the corner of King and York Street. I saw prisoner give something to the boy which I believed was a pie. I noticed the prisoner then fumbling with his hands about the boy’s person, I called the attention of Messrs McArthur & Company’s Watchman, William Stroud to the prisoner’s action with the boy, this fumbling

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about the boy’s person continued for over half an hour during which time the boy went to the pie tin and as I believe with the prisoner’s sanction took another pie out. They then went south down York Street, the prisoner and the boy and again stopped opposite McArthur’s Warehouse where Stroud and I were standing. Prisoner placed his pie can on the foot pavement and looked up and down the street, he then sat down on his pie can and in doing so he faced us, he then took the boy between his knees, placing his arm around the boy’s neck and kissed him, he then caught the boy by the back of his neck and forced him down to his person. He then caught the boy around the middle with both his arms

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the boy’s back to him, and commenced fussing and working behind the boy as we could see by the working the can, he then laid the boy across his knees and with his finger and hand commenced to roke him. Boy cried out several times as if he was hurt, the prisoner then let the boy down, who immediately let down his trousers and eased himself in the gutter. Boy got up and buttoned up his trousers, the prisoner again took the boy and placed him as before between his legs with his back to him, and again commenced working his body back and forward, and the can rattling. He here appeared to be satisfied, got up and was proceeding with the boy down York Street when I took him into

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custody and told him I took him into custody for committing an unnatural offence upon the boy, he said nothing either one way or other in reference to the charge – on arriving at the station I examined prisoner about his trousers, at this time he wore a white apron which covered his front from the waist down, on lifting his apron up I found his trousers unbuttoned from top to bottom and his privates bulging out of his trousers – at the time Stroud and I were watching we were hidden from the view of the prisoner. I produce the trousers the boy wore, they have been in my possession since I took them off him.

    Cross questioned by prisoner: I could not have been mistaken in what I saw because the moon

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and a gas lamp was shining full upon you.[Signed] John McGregor.

Sworn at the Central Police Court Sydney 26 September 1871.
[Signed] David Charles Frederick Scott, Police Magistrate.

1

    William Stroud on oath states, I am Watchman and employed by Messrs McArthur & Company to watch their premises in York Street whilst undergoing repair.

    About half past 12 o’clock this morning I was standing close alongside of the Constable, the last witness and saw the prisoner and the little boy Lyal now before the court come up King Street to York Street. The Constable called my attention to what was going on between them. I saw prisoner, standing up, groping the boy, pulling him about his backside – and I believe he gave the boy a pie – after this the prisoner began again to grope with one foot in the gutter and one on the pavement. I saw the boy then go to the can and take out another pie. Prisoner then looked up and

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down the street. He then took up his can and came over to where we were standing – the boy with him – he then put the can down and sat on it and took the boy between his legs placing his arms around the boy’s neck and kissed him, he then put his arms around the boy’s waist and pulled him towards him, with his back towards him, and commenced to work with his body. I heard the can rattle. He then placed the boy across his knees the boy’s back up and commenced to grope him [with] his fingers. The boy sang out 2 or 3 times as if he was hurt. Prisoner allowed the boy to get up after he had sung out, who immediately took his trousers down and eased himself in the gutter. He then buttoned up his trousers

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when prisoner again kissed him putting his hand upon the boy’s head and forcing him down on his person. Boy’s face then to him – he then took up his can and went down York Street followed by the constable. Prisoner had taken the boy twice on his lap before he pushed his head down.

[Signed] William Stroud, Central Police Station this 26th September 1871.
Sworn before, [Signed] DCF Scott, PM.

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    William Lyall on oath states:– I am 11 years old. I live with my father and mother in Jones Buildings off Pitt Street South – I know the prisoner, his name is Cook, he sells pies, I was with him this morning about half past 12 o’clock in York Street.

    I was going home, he pulled me to him and gave me a pie. He then groped me by putting his hand first into my trousers in front and then behind – he put his thumb up my bottom – at this time he was standing up – we were at the corner of King and York Streets. We then went to the large building McArthur’s, now repairing in York Street – prisoner then sat down on his can, he then put his finger into my trousers, he put his arm around my neck and kissed me, he put his hand

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on my neck and pressed my head down to his person and wished me to lick his privates – he then put his hand into my clothes and put a finger up my bottom. I was then lying on his knees – he then began to kiss me, I felt his person against my person, my bottom, he did this, once. He hurt me by putting his finger up my bottom which made me cry out, he said he would wet his finger and my bottom to make his privates slip in easier, that is up my bottom – I did not feel any wet come from his person – he kissed me and gave me another pie, I got up and eased myself in the gutter, prisoner said to me “Let us go up a lane where nobody

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can see us and we can do it better”. I then saw a constable come up. Prisoner sang out Hot Pies, policeman caught hold of both of us and took us to the Police Station – I see the trousers before the court, they are mine, I wore them last night – this is the hole prisoner tore when he put his hand into on my bottom, this is also the hole the prisoner’s privates went into.

    Questioned by prisoner: You put your finger into my bottom and you said you would wet my bottom to make your privates slip in – you said come up a lane as you could do it better.

    By Bench: You hurt my bottom. It is sore now.

[Signed] William Lyall, Central Police Court Sydney, 26 September 1871.
Sworn before, [Signed] DCF Scott, PM.

~ ~ ~ ~ ~

Statement of the Accused. 

New South Wales
TO WIT              }
James Cook stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 26th Day of September in the year of Our Lord One thousand eight hundred and seventy one, for that he, the said James Cook on the 26th day of September instant at Sydney, in the said Colony, did feloniously make an assault upon William Lyall and against the order of nature had a venereal affair with him and carnally knew him the said William Lyall 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 or favour, and nothing to fear from any threat which may be holden out to him to induce him to make any submission 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 James Cook and the witnesses for the prosecution being severally examined in his presence, the said James Cook 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 [James Cook] saith as follows:– Nothing. Taken before me, at Sydney in the said Colony, the day and year first above mentioned.
[Signed] DCF Scott, PM.

   Committed to take his trial at the ensuing Criminal Court. Sydney 26 September 1871 Central Police Court.
[Signed] DCF Scott, PM.

~ ~ ~ ~ ~

Justice A Stephen’s Notebook 8

156

Friday 17 November 71
James Cook. Assault with intent to commit sodomy on one William Lyall, a boy under the age of 14 years.
26 September [1871]

    Constable [John McGregor]. Just after midnight of Tuesday 26 September (night of 25th) I was on duty in York St near McArthur’s store & was in the shade of the building. It was moonlight. Prisoner came to the corner of King and York Sts with a little boy.

    Drew attention of the watchman to the two. Prisoner staid there with the boy ¼ hour: he in the gutter and the boy on

157

the curb. I noticed that his hands were on the back of the boy – low down near his posteriors. Prisoner gave the boy a couple of pies from his can which lay on the pavement. The prisoner is a pieman. (?) In about 5 minutes the prisoner and the boy went farther south. – I could not hear what was said. I was 30 yards off. They stopped nearly opposite to where I stood. Prisoner looked each way up and down the street and then sat on his can and took the boy between his legs with the boy’s back towards him and commenced to work his body backwards and forwards as I could both see and hear. He was not distant 15 yards from me. Then he laid the boy across his knees with his face downwards and used his hand about the boy’s parts. The boy cried out as if he were hurt: and prisoner put the boy down. –

158

    The boy went to the gutter and eased himself. After that the prisoner took the boy and put him again as before and continued working his body backwards and forwards for 5 minutes – Then both got up and went away and I followed prisoner and arrested him. He wore an apron on: & when I lifted it up I found that his private parts were outside his trowsers – hanging out.

    Cross-examined. While prisoner stood at the corner … but before he had commenced working with his body … there were people passing. It was then nearly 12 at night. The boy could not have got away without running. He did seem frightened. – I believe that the witnesses were examined in each other’s presence. I examined (ie at PO [Police Office] (questioned) the boy. I prosecuted the case.

159

    William Stroud. Watchman in McArthur’s store. Saw prisoner early in the morning of 26 September. ½ past 12. Came up with a boy – 30 yards off. Saw him groping about the boy’s person. Gave the boy a pie. The boy was in front of him and took another pie from prisoner’s can. Then prisoner and the boy came nearer to where I and the constable were standing. We were in the shade but the prisoner could have seen us if he had looked. The prisoner put his can down and sat on it and put the boy between his legs. Saw prisoner working his body to and fro. The boy’s back was towards prisoner – and prisoner had his arm round the boy’s neck and was kissing him. The boy got in the gutter and took down his trowsers to ease himself. Before that the prisoner got the boy across his knees groping him and made the boy sing out. After that the boy buttoned up his

160

trowsers and the prisoner went up the street with the boy following him. Don’t recollect more: not that the prisoner began again as described.

    Cross-examined. Don’t know that the boy was hurt.

    William Lyall. Father of the same name – a labourer. Am going on for 12. I have known prisoner for three months. I was sent out for a pennyworth of dog’s meat. Met prisoner and he said I want to speak to you. I said what do you want. Prisoner said I will tell you by and by. Then he caught hold of me by the coat and began pulling me about. I said let me go and prisoner said never mind: I’ll let you go by and by. Prisoner had a tin can with pies in it. He gave me one – and afterwards 2 more – Then he brought me up opposite to

161

McArthur’s building and then he made a hole in my trowsers … There was one there before and he put his hand in and made it wider. He wet my bottom and said I do that so that I can make it slip in. Then he pulled his person out and tried to get it up my bottom and I cried out. Prisoner said never mind duckey. He then poked one of his fingers up and I sang out again. Then he was going along and he said to me come and we will go up a dark lane and then we can do it better. Then I said no I won’t. Prisoner gave me another pie. When we were going along the constable came up. I eased myself in the gutter. Prisoner took hold of me after that and laid me across his knees: and then he tried to get his finger up my bottom.

    Cross-examined. I asked you to trust me for a pie and you gave me one. Then you asked me to go along with you.

162

You caught hold of me. When the constable came up I was going towards home. We were an hour opposite to McArthur’s store. You caught hold of me by the coat. I once told prisoner I could stay out all night if I liked. I had spoken to prisoner 3 times but he did this never before to me. My mother used to beat me. She is my step- mother. I had been out all day. She gave me a penny for dog’s meat and I spent it on a cake and was afraid to go home. –

    Prisoner had once or twice told me to go home at night. I ran away because she beat me. Was brought up under the Industrial Schools Act & my mother said that she would send me on board the Vernon.

    Prisoner: says that he is a married man and that no one would suspect him of such a thing.

    Guilty. Seven years Imprisonment with Hard labour Darlinghurst Gaol.

    He was sentenced by Sir [Justice] JN Dickinson in December 1858 [see James Cook, 1858 above] to 3 years Hard Labor for violating a female child and was committed on 2 charges of attempts on boys in 1869 – but discharged, because they were above 14 and consented. 9

~ ~ ~ ~ ~

The Sydney Morning Herald, Sat 18 Nov 1871 10

LAW.

… 

CENTRAL CRIMINAL COURT.
FRIDAY

    Before his Honor the Chief Justice.

UNNATURAL OFFENCE.

    James Cook was tried for having attempted to commit an unnatural offence.
    The Solicitor-General prosecuted for the Crown.
    Verdict: Guilty.
    There were former convictions for the same kind of offence.
    Sentence: Seven years’ imprisonment in Darlinghurst gaol.

~ ~ ~ ~ ~

The Sydney Mail and NSW Advertiser, Sat 25 Nov 1871 11

CENTRAL CRIMINAL COURT.

BEFORE his Honor the Chief Justice.

UNNATURAL OFFENCE.

    James Cook was tried for having attempted to commit an unnatural offence.
    The Solicitor-General prosecuted for the Crown.
    Verdict: Guilty.
    There were former convictions for the same kind of offence.
    Sentence: Seven years’ imprisonment in Darlinghurst gaol.



James Cooke, 1878


The Sydney Morning Herald, Mon 3 Jun 1878 12

WATER POLICE COURT.
SATURDAY

    Before the Water Police Magistrate and Messrs [RA] Hunt, Charlton, Greville and Taylor.

    An old man, named James Cook, sixty-three years of age described as a pieman, was charged with having with intent criminally assaulted, on Friday evening, in the Post Office enclosure, a child named Arthur Harrington. It was stated that the prisoner had only recently been liberated from prison, having served five years for a similar offence. He was now committed for trial at the next sessions of the Central Criminal Court.

~ ~ ~ ~ ~

Depositions for James Cooke 12 Aug 1878 Darlinghurst trial 13

(M., 11 & 12 Vic., Cap. 42.)
Depositions of Witnesses.

New South Wales, City of Sydney
TO WIT.                                   }
The examination of George Oulds [aka Olds] a Constable of the police Force of New South Wales, Samuel Bain of Smith and Anne Streets in the City of Sydney, Samuel Goldsborough of 88 Dowling Street in the City of Sydney and Arthur Harrington of the City of Sydney, in the said Colony, taken on oath this 1st day of June 1878 in the year of Our Lord one thousand eight hundred and seventy eight at Sydney in the Colony aforesaid, before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, in the hearing and presence of James Cooke who is charged this day before me, for that he the said James Cooke, on the 31st day of May 1878 at Sydney in the said Colony, did use and upon one Arthur Harrington make an assault and him the said Arthur Harrington feloniously wickedly and diabolically and against the order of Nature did attempt to commit and perpetrate the crime called buggery.

1

James Cooke

    Constable George Olds on oath states about 10.30 last night I was on duty in Pitt Street in this City and heard cries of “Police, Police!” coming from the direction of the General Post yard, George Street. I ran to the fence in Pitt Street and saw prisoner holding a boy by the left arm. I saw the boy hit the prisoner in the face. He then let the

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Boy go. The boy said “This man wanted to do bad with me, Constable,” this was in prisoner’s presence and hearing. I took prisoner to No 1 Police Station York Street in this City and there charged him with assaulting one Arthur Harrington with intent to commit an unnatural offence. After the arrest I noticed prisoner’s trousers open. In reply to the charge he said “All right”.

    By Prisoner: I did not see you do anything to the boy.

    Bench: Prisoner was under the influence of drink, one of the buttons was off Deponent’s trousers.

[Signed] George Oulds.
Sworn at Sydney 1st June 1878.
[Signed] RA Hunt, JP.

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    Arthur Harrington on oath states, I met prisoner at the corner of Pitt and King Street last night. I said to prisoner “Hello Cooke!” Prisoner took me by the arm at Moore’s at the corner of Pitt and King Street in this City and he then took me between the Post Office and took me by the hand and said “My person is only a little one.” When prisoner first got me between the Post Office he undone my trousers and then his own. Bayne then came up and said “You dirty scoundrel! I have a good mind to give you in charge.” After we sat down when our trousers were undone prisoner said “Mine is a little one and

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will go into you.” Prisoner made me sit on his left knee and he felt my privates. When we were sitting down prisoner said he could give me a shilling; that his was a little one and would easy go into me. Prisoner also made a hole with his fingers in the back of my trousers. My braces were not torn before I saw the prisoner that night. I am quite sure I mean by the back of the Post Office, the yard.

    Bench: I am 9 years old and residing with my mother at number 5 Carrington Street.

    By Prisoner: When I met you I said “Hello Cooke,” I was not there one hour, I was there about quarter of an hour. You asked me to come and you took me by the arm. You laid

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hold of my trousers.

    By Bench: I tried to get away from prisoner.

[Signed] Arthur Harrington.
Sworn at Sydney 1st June 1878.
[Signed] RA Hunt, JP.

6

    Samuel Bain on oath states, I am a painter residing at Smith and Ann Street Surry Hills in this City. I never saw prisoner before until last night. I saw him at Moore’s corner, that is at the corner of Pitt and King Streets in this City. I and a friend were together and we were just going to part. My attention was drawn to prisoner’s conduct. I saw the boy leaning over to get a pie from prisoner’s pie can and the prisoner was putting his hands on the boy’s posterior and kept his hands there for some minutes. The prisoner is a Pieman. The boy and the prisoner went along Pitt Street together [to]

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the Post Office. They went into the Post Office yard in the verandah in front of the storeroom away from the view of foot passengers. We followed them in. In walking up and looking round prisoner saw us and said “Pies all hot!” I saw the boy on prisoner’s knee. The man’s hand was in the boy’s trousers – the front of the boy’s trousers. The boy’s trousers were undone. My friend pulled prisoner’s hand away. I said to prisoner “You dirty scoundrel; I’ll give you in charge if I see a Policeman.” My friend held the prisoner while I went in search of a Constable. When I made this remark prisoner a second time said “Buy Hot Pies!” Whilst I was away looking for a

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Policeman I heard cries of “Police, Police.” Shortly after the Constable came up and arrested prisoner. I then accompanied them to No.1 Police Station Sydney.

    Bench: It was in the verandah of the storeroom not in the storeroom as before stated. They were between 2 casks.

    By Prisoner: You were not pushing the boy away; the boy was drinking the gravy.

    Bench: The boy in the presence of the prisoner said “He” meaning the prisoner “wanted bad with me.”
[Signed] Samuel Bain.
Sworn at Sydney 1st June 1878.
[Signed] RA Hunt, JP.

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    Samuel Goldsborough on oath states: I am the Night Messenger at the Herald office. I reside at 88 Dowling Street. I have seen prisoner a few times about the street with pies. I saw prisoner last night about 20 minutes past 10 o’clock. I was coming up Pitt Street to the Telegraph Office in George Street. I looked over the fence in Pitt Street between the store and the Post Office yard. I saw prisoner sitting in the verandah of the store. I saw prisoner with the boy Harrington on his knee. When I looked over the boy was pulling and jumping and trying to get away from prisoner. The boy got away near a box or case on the verandah. The boy

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shoved the man away. The boy was in the passage along the wall. The old man and the prisoner boy were struggling in the verandah. The boy tried to get away but the prisoner was holding him. The boy got the best of the man and knocked the man once or twice outside the verandah. The 2 were then struggling again and the boy struck prisoner in the face. When the 2 were in the verandah I was the man in motion as if having connection with the boy. The boy was struggling to get away. I heard the boy cry out for the Police twice. The reason I looked over the fence was I heard prisoner and the boy struggling.

[Signed] Samuel Goldsborough.
Sworn at Sydney 1st of June 1878.
[Signed] RA Hunt, JP.

~ ~ ~ ~ ~

(N., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.

New South Wales, City of Sydney
TO WIT.                                     }
James Cooke stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 1st day of June in the year of Our Lord one thousand eight hundred and seventy eight for that he, the said James Cooke on the 31st day of May 1878 at Sydney, in the Colony, feloniously, wickedly and against the order of Nature attempt to commit the crime called 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 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, 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 James Cooke and the witnesses for the prosecution being severally examined in his presence, the said James Cooke 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 James Cooke saith:– “I have nothing to say.” Taken before me at Sydney in the said Colony, the day and year first abovementioned.
[Signed] RA Hunt, JP.

    James Cooke is committed to take his trial at the next Court of Gaol Delivery to be holden at Sydney on the 12th day of August 1878.

Water Police Office,
1st June 1878.
[Signed] RA Hunt, JP.

~ ~ ~ ~ ~

(O. 1, 11 & 12 Vic., Cap. 42.)
Recognizance to give Evidence.

New South Wales, City of Sydney
TO WIT.                                   }
Be it remembered, that on the 31st day of May in the year of Our Lord one thousand eight hundred and seventy eight George Oulds a Constable of the Police Force, of Sydney in the Colony of New South Wales, Samuel Bain of Smith and Ann Street Surry Hills in the said Colony, Samuel Goldsborough, 88 Dowling and Arthur Harrington of Harrington Street in the said Colony, personally cam before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledged 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 said before mentioned persons shall fail in the condition indorsed. [Signed] George Oulds, Samuel Bain, Samuel Goldsborough, Arthur (his X mark) Harrington. Taken and acknowledged, the day and years first abovementioned at Sydney in the said Colony, before me, (?)

The condition of the within written Recognizance is such, that whereas James Cooke was charged before RA Hunt Esquire one of Her Majesty’s Justices of the Peace for the said Colony, with assault with intent to commit an unnatural offence if therefore, they the before mentioned persons shall appear at the next Court of Gaol Delivery to be holden at Sydney, in and for the Colony of New South Wales, on the 12th day of August next, at 9 of the clock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said James Cooke for the offence aforesaid, to the Jurors who shall pass upon the trial of the said James Cooke then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] (?) JP.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

Criminal Court
Darlinghurst
12th August 1878
No. 207
Depositions.
Regina     No. 4
v.
James Cooke
Attempt to commit Buggery
Committed at Water Police Court
on June 1st 1878

~ ~ ~ ~ ~

Attempt to commit sodomy
5/6/78
[Initialled] WJF [William John Foster] AG

~ ~ ~ ~ ~

Justice P Faucett’s Notebook 14

2

Darlinghurst
Continued
Monday August 12, 1878
Queen v James Cooke
(Manning ? passim) for Crown

    George Oulds examined by Manning. Constable – On duty in Pitt Street Sydney on 31st May in the evening.

    About 10½ o’clock I heard cries of Police – I ran to where the cries came from – the yard of the Post Office.

    I there saw prisoner holding a little boy by the left arm in the P[ost] O[ffice] yard – the little boy hit the prisoner in the face.

    I ran (around ?) the fence in the yard – and the boy said this man wants to do bad with me.

3

I asked him what he did – He said (he ?) wants to take down my trousers.

    I arrested prisoner and took him to the Station and charged him with an assault with intent to commit an unnatural offence.

    They were inside the gates at the back of the building.

    Not cross-examined by prisoner.

    Arthur Harrington examined by Manning. I know prisoner – not very long. He is a pie-man. I was in Pitt Street on 31st May. I was coming from the theatre and met him.

    He was standing at the corner of Moore’s public house. I said Hello Cooke – he said hello – I was playing with him and was swinging round the pole – the telegraph office.

    He took me on his knee. A gentleman said you dirty scoundrel, for 2 pins I would give you in charge. He made a hole in my breeches – the back.

    Police came down. He said he’d give me a shilling. I was not a minute there when the gentleman came up. I did not see his – I did not see him unbutton.

    Samuel Bain examined by Manning. I live at Surry Hills. I know prisoner – I saw him on the evening of 31st May last at corner of King and Pitt Streets.

    My attention was drawn to the prisoner’s conduct towards the boy – his misbehaving as the people were passing by – he was feeling his backside.

    Some one remonstrated with the man – and asked him if he was his son.

4

    With that the man walked away and the boy followed him – they went to a store room of the Post Office – I followed them with my friend.

    We saw prisoner and the boy going in between two cases. Between the two cases the boy and the man were there. Looking over I saw the boy sitting on the prisoner’s knee.

    We stood watching for about a minute – I then went up and said you dirty scoundrel, I’ll give you in charge if I see a Constable.

    The boy was sitting on his knee – I could not see the man’s clothes on account of his apron – the man said, pies all hot.

    My friend said we’d better give him in charge – I then went for a constable. I came back with a constable, and found Constable Oulds there – the boy said that man wanted to do wrong with me.

    Cross-examined by prisoner. (You ?) could not have been more than 2 or 3 minutes.

    Two or three buttons of the boy’s trousers were undone – in front – the boy ran after him.

    By Juror. The man had some drink – not drunk not sober.

    Samuel Goldsborough examined by Manning. Night Messenger at Herald office. On night of 31st May last I saw prisoner in the Post Office yard behind the Telegraph Office.

    He had the boy on his knee.

    Last witness came up with constable – I saw the boy struggling and trying to get away from prisoner.

5

    The boy got up into the verandah and prisoner got up into it also – They were struggling in the verandah and the boy knocked him off – he was the worse for drink – when he was on the ground the boy hit him.

    Cross-examined by prisoner. I saw him sitting on your knee – and he was trying to get away.

    Constable Oulds by Manning. At Police Office – one button of prisoner’s trousers was undone and one was missing.

Verdict
Not guilty.

~ ~ ~ ~ ~

The Sydney Morning Herald, Tue 13 Aug 1878 15

CENTRAL CRIMINAL COURT.
MONDAY [12 AUGUST 1878]

    Before his Honor Mr Justice Faucett.

UNNATURAL OFFENCE.

    James Cooke was charged with an attempt to commit an unnatural offence on the person of Arthur Thomas [Harrington], a boy aged 12 years. A verdict of not guilty was returned.

 


1   Depositions (9/6413-9/6415) for this case, could not be located at SRNSW.

2   The Sydney Morning Herald, Wed 17 Nov 1858, p. 3.

3   SRNSW: NRS5862, [2/3120], Judiciary, JN Dickinson, J. Notebooks Criminal Causes, 1844-60, pp. 172-182. Emphasis added.

4   The Sydney Morning Herald, Tue 7 Dec 1858, p. 4.

5   Bell’s Life in Sydney and Sporting Reviewer, Sat 11 Dec 1858 p. 2.

6   The Sydney Morning Herald, Wed 27 Sep 1871, p. 2.

7   SRNSW: NRS880, [9/6540], Supreme Court, Criminal Jurisdiction, Deps, SGD, Nov 1871, No. 765. Emphasis added.

8   SRNSW: NRS7696, [2/7040], Judiciary, A Stephen, CJ. Notebooks Criminal, 1840-71, pp. 156-62. Emphasis added.

9   Details of the latter case could not be located at SRNSW.

10  The Sydney Morning Herald, Sat 18 Nov 1871, p. 8.

11  The Sydney Mail and NSW Advertiser, Sat 25 Nov 1871, p. 1227.

12  The Sydney Morning Herald, Mon 3 Jun 1878, p. 3.

13  SRNSW: NRS880, [9/6621], Supreme Court, Papers and depositions, Sydney, Aug 1878, No. 207. Emphasis added.

14  SRNSW: NRS5922, [2/3853], Judiciary, P Faucett, J. Notebooks Criminal Causes, 1865-87, pp. 2-5. Emphasis added.

15  The Sydney Morning Herald, Tue 13 Aug 1878, p. 3.