Depositions for John Roberts 26 Mar 1860 Goulburn trial 1
(M. 11 & 12 Vic., Cap. 42.)
Depositions of Witnesses.
New South Wales, Yass
TO WIT. }
The Queen versus
The examination of Philip Clements of Yass in the Colony of New South Wales, at present a confinee in Yass Gaol on his route to Goulburn Gaol and Thomas Brown, also a confinee in said gaol on his route, to Goulburn Gaol taken on oath this 22nd day of March in the year of Our Lord one thousand eight hundred and sixty, at the
Police Office, in Yass 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 John Roberts who is charged this day before us for that he the said John Roberts on or about the 15th day of March, Instant at Yass, in the said Colony, unlawfully and feloniously did commit sodomy with the said Philip Clements.
2
New South Wales
TO WIT. }
This deponent Philip Clements on his oath saith as follows:– I am a prisoner in the Yass Lockup or Gaol, and was sent down from Tumut. I am fourteen years of age. I understand the nature of an oath and can repeat the Lord’s Prayer, and the Creed. About four or five nights ago, I was sleeping in the same cell, and in the same bed with the prisoner, another man slept in the cell, but in a separate bed.
About the middle of the night, a few nights ago, the
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prisoner turned me over, and told me not to tell anybody, he called me a young bugger. He then began to fuck me between my legs, and at my bottom. He put his cock into my bottom. He hurt me very much – he again told me not tell anybody. I said I would tell what he did – he kept doing this all night, until the morning. I tried to get away from him when he knocked my head against the wall. I felt wet between my legs, and in my bottom. I swear this is true.
[Signed] Philip (his X mark) Clements
Sworn before us, at Yass this twenty second March 1860.
[Signed] G[ordon] F[orbes] Davidson, JP., J[ames] S[nowdon] Calvert, JP.
Prisoner has no questions to put to witness.
4
New South Wales
TO WIT. }
This deponent Thomas Brown on his oath saith as follows:– I am a prisoner confined in the Yass Lockup. On the fifteenth of this month of March I was sleeping in the same cell with the prisoner Roberts, and the boy Clements. I heard the prisoner say to the boy Clements “Turn round your face to the wall, you will sleep better that way” – but I heard nothing else. I did not hear the boy Clements call out or complain during the night as I slept soundly but the next morning he said to me “The old man” meaning prisoner Roberts “fucked
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me last night, he told me not to tell anybody, but in my own mind I said I will tell.
Cross examined by prisoner: the boy turned round when you told him.
[Signed] Thomas (his X mark) Brown.
Sworn before us at Yass this 22nd March 1860.
[Signed] GF Davidson, JP. JS Calvert, JP.
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Prisoner Roberts says he has no statement to make.
Yass 22nd March 1860.
Memo
The witnesses Clements and Brown being prisoners in Yass Lockup on route to Goulburn are not bound over to appear as they will be in Goulburn Gaol when prisoner will be tried.
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The prisoner Roberts is committed to take his trial for the offence at the ensuing Circuit Court to be holden at Goulburn on the 26th March Instant,
Yass 22nd March 1860.
[Signed] GF Davidson, JP.
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Police Office Yass,
23rd March 1860.
No. 64/4
The Crown Prosecutor, Goulburn.
Sir,
I do myself the honor to enclose to you under instructions from the Yass Bench the proceedings taken here in the committal of the prisoner named in the margin (John Roberts, sodomy): for trial at the ensuing Court of Gaol Delivery to be holden at Goulburn.
I have the honor to be
Sir
Your obedient Servant.
[Signed] J Mills, CPS.
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[On the depositions’ cover sheet is the following]
1860
Goulburn Circuit Court
Yass No. 13
Regina
v.
John Roberts
Depositions
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Justice E Wise’s notebook 2 3
12
[Goulburn, Monday 26 March 1860]
John Roberts
Mr Blake for the prisoner.
Both were in custody, all were in the same (room ?
Clements.
Brown was present.
Philip Clements. indecent I am in gaol as vagrant. In Yass lockup the 15th of the month. In the same room & bed – prisoner, another man – “the nugget”. slept till towards I did not sleep until (?) (?). Prisoner said he would give me a bit of (bacco ?). I was My face towards his back. I was sleeping on the ground with 2 blankets – he said I had better sleep with him.
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I got in to the bed. He told me to turn over. I could not get (away ?) from him. He held my legs first & then put his cock c. into my backside. He done it (?) nearly all night. I tried to get away but I could not – he had hold of my arms. I felt him – he hurt me. I am quite sure. I did not (?) (?) (?) I felt his c[ock]. I felt nothing at all. I woke up from my sleep & I fell down against the wall. I (?) (?) – I fell down out of the bed. 4 I felt his c[ock] about my legs – he tried my legs first & then my bottom. It was going on nearly all night while he was not at it all night – until (wakened ?). He began as soon as I laid down at the bed.
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He got off & got again. I put my hand – to my backside. Noticed – dirt. Black dirt. Came from the (wall ?).
Cross-examined by Mr Blake. He told me to sleep in the bed. Just after supper – when we went to bed. I said it was cold. in the room before he did anything – he told me (he ?) (could ? would ?) give me the (baccy ?). I called to nobody. I told Nugget the next morning in the yard. Nugget told me to say he had put the c[ock] in my backside. What do you think Nugget he did – he fucked me – (?) (?) (?) (?).
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When I fell out to I got to my own blankets. 5 – about midnight. Nugget was asleep – did not tell him.
By me. I was 14 last Xtmas eve
(Deposition read. I felt wet between my legs & this is true) Dirt came from my bottom. It smelt. 6
Nugget. Boy was next to the wall. I was outside in the same bed under the same blankets. I heard nothing said. Boy said something to me in next morning.
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Heard nothing during the night. I was examined at Police office. The prisoner said to the boy turn round – you can sleep better now. His face was then to the wall. I was asleep all night. I cannot say that the prisoner went to sleep on the boards. The prisoner said – we had better give the boy a bed. I said yes – but you must have him alongside of you. He was on the bed – not on the boards at all.
By me. He could not have (fallen ?) out of bed unless he (?) (?) the wall.
Mr Blake
2 3½
3¾
17
Mr Butler replied
(testing ?) the boy 7
But NB it is equally consistent with guilt & innocence.
turning over – &c.
compliant – &c
Jury retired about 4.20
5¾ Penetr Not Guilty
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Goulburn Chronicle and Southern Advertiser, Wed 28 Mar 1860 8
GOULBURN CIRCUIT COURT.
———o———
MONDAY, MARCH, 26, 1860.
(Before his Honor Mr JUSTICE WISE.)
This Court opened on Monday last. His Honor Mr Justice Wise attended by J O’Neill Brenan, Esq, sheriff, took his seat at ten o’clock. The usual proclamation against immorality and vice having been read by Mr Wilkinson, Clerk of Arraigns, E Butler, Esq, handed in his commission as Crown Prosecutor. Mr Butler was assisted by Mr Jackson, from the Crown Solicitor’s office. The other gentlemen of the legal profession present were, Mr Blake, barrister; Mr Walsh, Mr Gannon, and Mr Scarvell, attorneys.
J McGovern, Esq, Mayor of Goulburn, was sworn in as Justice of the Peace, ex officio, for the municipality.
...
UNNATURAL OFFENCE.
John Roberts, a labouring man, of middle age, was indicted, for that he on or about the 15th March instant, at Yass, unlawfully and feloniously did commit an unnatural offence on one Philip Clements, a boy of about 14 years of age.
Prisoner pleaded not guilty, and was defended by Mr Blake; attorney, Mr Gannon.
Clements and another witness named Brown were both examined, but their evidence is totally unfit for publication. The alleged offence was stated to have been committed at night in a cell of the Yass lock-up.
Mr Blake addressed the jury for the prisoner at some length, in the curse of which he animadverted in strong terms on the present state of Yass lock-up, where prisoners, as in the case before the Court, were huddled together, three in a bed in a small cell. He contended that the evidence of the boy was very contradictory, and unworthy of credence, he being a young vagrant, and he hoped the jury would not convict the prisoner, whose life depended on the result of their verdict.
The Crown Prosecutor briefly replied, contending that the Crown was entitled to a verdict on the evidence. During the Crown Prosecutor’s reply the prisoner fainted, and had to be removed from the Court for a few minutes.
His Honor summed up very minutely, in the course of which he alluded in condemnatory terms to the lock-ups of the colony generally, particularly that of Yass, where two men and a boy were put together, night after night, in one bed, and which he characterised as a disgrace to any civilised country, and hoped the Legislature would soon take the subject of the lock-ups of the colony into their consideration.
After a deliberation of an hour an a half, the jury returned a verdict of not guilty. Prisoner was detained on a charge of forgery.
The Court adjourned at a quarter to six till nine the next morning.
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The Goulburn Herald, Wed 28 Mar 1860 9
LOCAL INTELLIGENCE.
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GOULBURN CIRCUIT COURT
The sittings of this court commenced on Monday, the 26th, before his Honor Mr Justice [Edward] Wise. It is the first time his Honor has been on circuit since his appointment as a judge of the supreme court.
J O’Neil Brenan, Esq., the sheriff, was personally in attendance at this court. Mr Butler prosecuted on behalf of the Crown. Mr Wilkinson officiated as clerk of arraigns, and Mr [JB] Jackson attended from the Crown Solicitor’s office. Barrister present— Mr Blake. Solicitors— Messrs Walsh, Gannon, and Scarvell.
The usual proclamation and commissions having been read, and the jury empanelled, the first case proceeded with was
…
UNNATURAL OFFENCE.
John Roberts was charged with having, at Yass, on the 15th March, committed an unnatural crime on the person of one Philip Clements.
The prisoner pleaded not guilty, and was defended by Mr Blake; attorney, Mr Gannon.
The crown-prosecutor stated the facts of the case, which are briefly as follows:– The prisoner, together with Clements, a youth fourteen years of age, and another witness named Thomas Brown, had been prisoners together in the lock-up at Yass, on their way to Goulburn gaol. The whole three of them slept in one cell, and on the night of the 15th, it was alleged, the offence was committed. The crown-prosecutor, alluding to the revolting nature of the crime, said that the jury should not be influenced by the nature of its punishment, but consider only whether, in their opinion, the offence had been really committed or not. The characters of the boy Clements and the witness Brown should be take into consideration, as also whether or not the boy had any motive for trumping up a false charge. It was one of those cases that, like rape, was greatly dependent on the solitary evidence of the person on whom it was committed. If the jury were not satisfied that felony had actually been committed the prisoner might be brought in guilty of an attempt to do so.
Philip Clements deposed that he was under confinement as a vagrant; on the 15th instant he was in the cell at Yass, in the same room with the prisoner and Thomas Brown, who was also called “Nugget.” Witness here stated the circumstances of the offence, which are unfit for publication. The next day witness told Brown about the occurrence. The evidence of Thomas Brown was to a certain extent contradictory to that of Clements. Witness said the boy never told him till the next day.
Mr Blake made a lengthened defence on behalf of the prisoner. He said the circumstances were unfortunate enough in themselves, but more so when it was considered that these men were at the time in custody of the law, and huddled together in a shameful manner. The question rested on the boy’s evidence, as the other witness knew nothing of the transaction. Alluding to the crown-prosecutor’s arguments as to absence of motive on the boy’s part, he said that there were instances of juvenile depravity not to be reconcile with any principle. The jury must take into consideration one important fact—that the boy’s evidence was of a contradictory nature. In a case like this, involving as it did the life of the prisoner at the bar, the jury were bound, if they had the slightest doubt, to give him the benefit of the same, and return a verdict of acquittal.
The crown-prosecutor replied.
His Honor summed up, remarking that there was one thin that had not been noticed by the learned counsel on either side which was, that the witness Clements was equally guilty if he was a consenting party. There was one important piece of evidence which had been omitted, and that was that no medical examination had taken place, which would have been of material importance in determining the case. His Honor alluded to the want of accommodation in the lock-up at Yass, which he hoped he should soon hear of as being remedied.
The jury retired and after an absence of about an an [sic] hour, returned a verdict of not guilty.
The court adjourned at a quarter to six.
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Goulburn Chronicle and Southern Advertiser, Sat 31 Mar 1860 10
GOULBURN CIRCUIT COURT.
———o———
WEDNESDAY, MARCH, 28, 1860.
(Before his Honor Mr JUSTICE WISE.)
...
THURSDAY, MARCH, 29.
...
FORGERY AT WENTWORTH.
John Roberts and James Jones were indicted for forging an order at Wentworth, Darling Junction on the 15th January last, with intent to defraud. A second count charged the prisoners with uttering.
Prisoners pleaded not guilty. Roberts was defended by Mr Blake; attorney, Mr Gannon. Jones was undefended.
In point of fact the trial was confined to the second count, there being no evidence of the forging.
James Horn Osborne, storekeeper at the Darling Junction, for the firm of Randal and Scott, of Adelaide, proved that on the 15th January Roberts came to his store, and after making selection of £3 or £4 worth of goods, tendered in payment an order for £16 10s in favour of James Jones or bearer, purporting to be signed by Murray and Carstairs, a firm carrying on business about 80 miles distant, and drawn on Younghusband and Co of Adelaide; Osborne was acquainted with the signature of the firm, and noticed the signature to the order did not at all resemble the original and that the second name was wrongly spelt, namely “Carsteaires,” instead of the proper mode; he asked him where he got it, and the said from Murray and Carstairs; Osborne said to him “It’s a lie, they never gave it [to] you in your life;” upon which he said he said he got it from Johnson the overseer; to which Osborne made answer that Johnson had no right to give him an order without putting his own name to it as well as that of the firm; at this time Jones was standing at the door of the store, and coming forward said Osborne had no occasion to be afraid; he (Jones) knew the order was a good one, and that it was in Johnson’s writing; the two men were in company; Osborne did not change the order, but gave it back, and Roberts having no money could not take the goods; Osborne also deposed that three or four days afterwards a number of torn portions of an order, pasted on a form similar to that at first used, were shown to him, and he identified them as forming portions of the order presented to him; the fragments so pasted being now shown to him he positively swore to their being portions of the order presented by Roberts.
Alexander Perry, who in January last was lieutenant in the native police, but is now a station holder, proved that he and his police picked up the fragments of the order produced, scattered in the salt bush about a mile and a quarter from Osborne’s store; this was a few days after the time above-mentioned; he had the fragments pasted on a form similar to that which had been used; he found also the fragments of a second order, which he put together in a similar way; this latter purported to be drawn on Younghusband and Co., by Murray and Carstairs, for £10 10s., in favour of W Smith or bearer; witness identified the documents produced as those he had found on the plain; knew the signature of Murray and Carstairs; it was not their handwriting to either of these documents.
Thomas Brown, alias the “Nugget,” proved that in January last he was travelling towards the Junction in company with Jones, who was his mate, when they overtook Roberts at a station, and at his request gave him a lift on their dray to the Junction; on their way Roberts asked witness if he could write, as he had got an order which only wanted filling up; he made no answer; subsequently he asked him to take an order to a Mr Davy’s and get it cashed, telling him he would give him £2; did so, and brought it back, telling him it was no good, to which he said it was a lie; witness told him not to be getting other people into trouble besides himself.
George Henry Carstairs proved that prisoner had been in the employment of the firm, and that while so employed he had opportunities of access to the forms of order upon their Adelaide agents, Younghusband and Co, as he (witness) had been careless as to allow them to be left loose; witness’s partner was in England, and he used to sign the orders; the signature to the document was not the signature of the firm, nor anything like it; they had a superintendent named Johnson, but he had no authority to draw orders, and the writing on this document had not the slightest resemblance to his writing.
This was the case for the Crown.
Mr Blake, on behalf of Roberts, addressed the jury at some length, contending that though Osborne was very confident that the fragments shown to him formed portions of the order presented to Roberts, yet the circumstances of the case by no means justified that confidence; and unless the jury were satisfied beyond doubt that these torn pieces of paper were portions of the original order, a matter of very great doubt, they must acquit the prisoner.
[James] Jones said he was innocent of the charge. He never gave any assistance in uttering the order.
The jury, after a deliberation of about half an hour, returned with a verdict of guilty against Roberts, and acquitted Jones. Roberts was sentenced to two years’ hard labour in Darlinghurst Gaol.
It may be noticed that the witness Brown was brought down as a prisoner in connexion with this case, but the Attorney-General declining to prosecute, he was discharged on his arrival.
In reference to this case, several of the witnesses complained of the immense distance they had to travel. Osborne stated the Junction is about 600 miles from here by land, and 1700 by way of Adelaide and Melbourne, which route he took as the easiest, and that he had been ever since the 7th Feb in coming.
We may observe that this case might have been taken to the District Court, Albury, a distance of 300 miles, but the reason it was not, we are informed, was that the local bench had not been officially informed of the fact.
The Judge advised the witnesses to press upon the authorities the necessity of establishing a court in or near their district, a matter which was under consideration.
The court adjourned at 29 minutes to 7 till half-past 9 next morning.
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The Sydney Morning Herald, Sat 31 Mar 1860 11
GOULBURN CIRCUIT COURT.
———o———
(Abridged from the Chronicle of Wednesday.)
MONDAY,MARCH 26TH.
BEFORE Mr Justice Wise.
J McGovern, Esq, Mayor of Goulburn, was sworn in as justice of the peace, ex officio for the municipality.
…
John Roberts, charged with the commission of an unnatural offence, at Yass, on the 15th instant, was acquitted, the jury having returned a verdict of not guilty.
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The Yass Courier and General Advertiser, Sat 31 Mar 1860 12
GOULBURN CIRCUIT COURT.
This Court was opened on Monday, before His Honor Mr Justice Wise. The following abridged report of thecases tried is compiled from the Chronicle:–
…
Unnatural Offence.—The Yass Lockup.—
John Roberts was indicted, for that he on or about the 15th March instant, at Yass, unlawfully and feloniously did commit an unnatural offence on one Philip Clements, a boy of about 14 years of age. Prisoner pleaded not guilty, and was defended by Mr Blake; attorney Mr Gannon. Clements and another witness named Brown were both examined, but their evidence is totally unfit for publication. The alleged offence was stated to have been committed at night in a cell of the Yass lockup. Mr Blake addressed the jury for the prisoner at some length, in the course of which he animadverted in strong terms on the present state of Yass lockup, where prisoners, as in the case before the Court, were huddled together, three in a bed, in a small cell. He contended that the evidence of the boy was very contradictory, and unworthy of credence, he being a young vagrant, and he hoped the jury would not convict the prisoner, whose life depended on the result of their verdict. The Crown Prosecutor briefly replied, contending that the Crown was entitled to a verdict on the evidence. During the Crown Prosecutor’s reply the prisoner fainted, and had to be removed from the court for a few minutes. His Honor summed up very minutely, in the course of which he alluded in condemnatory terms to the lockups of the colony generally, particularly that of Yass, where two men and a boy were put together, night after night, in one bed, and which he characterised as a disgrace to any civilised country, and hoped the Legislature would soon take the subject of the lock-ups of the colony into their consideration. After a deliberation of an hour and a half, the jury returned a verdict of not guilty. Prisoner was detained on a charge of forgery. The Court adjourned at a quarter to six till nine the next morning.
1 SRNSW: NRS880, [9/6432], Supreme Court, Papers and depositions, Yass, 1860, No. 13. Emphasis added.
2 SRNSW: NRS7863, [2/7707], Judiciary, E Wise, J. Notebooks Criminal (including Criminal Circuit), 1860-65, pp. 12-7. Emphasis added.
3 Justice Edward Wise (1818-65) was born at Carisbrooke, Isle of Wight, England on 13 Aug 1818. He was called to the Bar 22 Nov 1844 at Middle Temple. Wise arrived in Sydney, joining his brother George and brother-in-law William Manning, per Pacific on 26 Feb 1855. He was admitted to the colonial Bar on 16 Jun of the same year. He was a member of the Legislative Council, solicitor-general and attorney-general in NSW. Wise devoted himself to the welfare of his adopted land, advocating state responsibility for the moral and social condition of the people. On 13 Feb 1860 he was appointed a puisne judge of the NSW Supreme Court. Overwork led to a breakdown and while on a visit to Melbourne he died of softening of the brain and apoplexy on 28 Sep 1865 and was buried in St Kilda cemetery. ADB, 1851-1890, vol. 6, pp. 427-9.
4 Mn: “could not have been.”
5 Mn: “contradicted.”
6 Mn: Said at first it was “dirt from the wall”.
7 Mn: Absence of inquiry – by the officials. “Apparent want of (motive ?)” or – was submitting to it.
8 Goulburn Chronicle and Southern Advertiser, (NSW), Wed 28 Mar 1860, p. 2.
9 The Goulburn Herald, Wed 28 Mar 1860, p. 2. Emphasis added.
10 Goulburn Chronicle and Southern Advertiser, (NSW), Wed 31 Mar 1860, pp. 2, 3. Emphasis added.
11 The Sydney Morning Herald, Sat 31 Mar 1860, p. 5.
12 The Yass Courier and General Advertiser, Sat 31 Mar 1860, pp. 2, 3.