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1861, John Lewis and William Quinn - Unfit For Publication
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Depositions for John Lewis and William Quinn 4 Sep 1861 Bathurst trial 1

Police Office, Stoney Creek
12th August 1861.

The Police Magistrate of Stoney Creek to the Hon, the Attorney General,
transmitting depositions in the case of
Regina versus John Lewis and William Quinn.

The Honorable, The Attorney General, Sydney

Sir,
    I do myself the honor to transmit herewith the depositions and other papers in the case noted in the margin. 2

    2. The prisoners stand committed to take their trial at the Circuit Court at Bathurst on the fourth September next.

I have the honor to be, Sir, your most obedient Servant.
[Signed] Whittingdale Johnson, PM.

~ ~ ~ ~ ~

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

New South Wales, Stoney Creek
TO WIT.                                  }
The examination of George Poole of Stoney Creek in the Colony of New South Wales, Sergeant of Mounted Police and James Priest of Stoney Creek in the said Colony, innkeeper taken on oath this 12th day of August in the year of Our Lord one thousand eight hundred and sixty one, at Stoney Creek 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 John Lewis and William Quinn who are charged this day before me for that they the said John Lewis and William Quinn on the seventh day of August Instant, at Stoney Creek in the said Colony, commit an unnatural offence.
9 Geo IV Cap. 31. Sec 15

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This deponent George Poole on oath saith as follows: I am a Sergeant in the Western Mounted Police and am stationed at Stoney Creek. I apprehended the prisoner John Lewis on the morning of the eighth day of August Instant, for having on the previous evening committed in conjunction with the prisoner William Quinn an unnatural offence. I was at the public house of Mr Priest on the evening of the 7th Instant. I saw the two prisoners there drinking in the bar. Between nine and ten

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of the clock on the evening in question. Mr Priest called me out and took me into a verandah room where I saw the two prisoners lying on the ground. The prisoner Lewis had his trousers down. The prisoner Quinn was not stripped or had any part of his clothing down – both prisoners were in a state of intoxication. I did not see any offence committed and did not until I received further information, take them into custody.
[Signed] George Poole.

And this deponent, James Priest on oath saith as follows:– I

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am an innkeeper at the Wellington Road Stoney Creek. On the evening of the 7th Instant, the two prisoners before the Court were in my Public House. They were drinking at the bar together. Between nine and ten of the clock the two prisoners left the bar and went into a verandah room. A few minutes afterwards I followed them as they had taken the candle from the bar with them. When I entered the room I found the two prisoners in the act of committing an unnatural offence. The prisoners had put

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out the light which they had brought in but I had a candle in my hand. Both prisoners had their trousers down. The prisoner Quinn was leaning across the bed with his feet on the ground and his face downwards. The prisoner Lewis was on him. I swear that I saw the private parts of the prisoner Lewis in the person of the prisoner Quinn. I went for the police and had them removed from the room – both the prisoners had been drinking but were not so much intoxicated as they

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wished to appear.

    Examined by prisoner Quinn: You were drinking in my house during the day more or less.

    By the Bench: The prisoner Quinn was more drunk than the prisoner Lewis.
[Signed] James (his X mark) Priest.

Witness to mark Whittingdale Johnson, PM.

    The above depositions of George Poole and James Priest were taken and sworn before me this day and yearabove written at Stoney Creek.
[Signed] Whittingdale Johnson, PM.

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

New South Wales, Stoney Creek
TO WIT.                                  }
William Quinn stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this twelfth day of August in the year of Our Lord one thousand eight hundred and sixty one for that he the said William Quinn on the seventh day of August Instant at Stoney Creek in the said Colony, did commit an unnatural offence and the said charge being read to the said William Quinn and the witnesses for the prosecution, George Poole and James Priest being severally examined in his presence, the said William Quinn 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 William Quinn saith as follows: “I was so much intoxicated that I have no recollection what occurred on the day in question.”
[Signed] William Quinn.

The above statement of William Quinn was taken before me this day and yea above written at Stoney Creek.
[Signed] Whittingdale Johnson, PM.

Committed for trial at Bathurst Assizes 4th September 1861.
[Signed] Whittingdale Johnson, PM.

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

New South Wales, Stoney Creek
TO WIT.                                 }
John Lewis stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this twelfth day of August in the year of Our Lord one thousand eight hundred and sixty one for that he the said John Lewis on the se3venth day of August instant at Stoney Creek in the said Colony, did commit an unnatural offence and the said charge being read to the said John Lewis and the witnesses for the prosecution, George Poole and James Priest being severally examined in his presence, the said John Lewis is now addressed by me as follows:– “Having heard the evidence, do you with to say anything in answer to the charge? You are no 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 John Lewis saith as follows: “I was so intoxicated that I have no recollection of what occurred.”
[Signed] John (his X mark) Lewis. 
[Signed] Whittingdale Johnson, PM.

Witness to mark.

The above statement of John Lewis was taken before me this day and year above written at Stoney Creek.
[Signed] Whittingdale Johnson, PM.

Committed for trial at Bathurst Assizes, 4th September 1861.
[Signed] Whittingdale Johnson, PM.

~ ~ ~ ~ ~

(O. 1.)
Recognizance to give Evidence.

New South Wales, Stoney Creek
TO WIT.                                 }
Be it remembered, that on the twelfth August, in the year of Our Lord one thousand eight hundred and sixty one, George Poole of Stoney Creek, Sergeant of Mounted Police, and James Priest of Stoney Creek, innkeeper personally came be fore the undersigned one of Her Majesty’s Justices of the Peace for the said Colony and acknowledged themselves to owe our Sovereign Lady the Queen the sum of (£40) forty pounds of good and lawful money of Great Britain, to be made and levied of their goods and chattels, lands and tenements, to the fail in the condition indorsed.

Taken and acknowledged the day and year first above mentioned, at Stoney Creek in the said Colony, before.
[Signed] Whittingdale Johnson, PM.

The condition of the within written Recognizance is such, that whereas John Lewis and William Quinn were this day charged before Whittingdale Johnson Esquire, Justice of the Peace within mentioned, for that they the said John Lewis and William Quinn, did at Stoney Creek on the seventh day of August Instant, commit an unnatural offence if therefore they the said George Poole and James Priest shall appear at the next general Gaol Delivery to be holden at Bathurst in and for the Colony of New South Wales, on Wednesday the fourth day of September, and there give such evidence as they know upon an information to be then and there preferred against the said John Lewis and William Quinn for the offence aforesaid, to the jurors who shall pass upon the trial of the said John Lewis and William Quinn then the said Recognizance to be void, or else to stand in full force and virtue.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

12th August 1861
4025 No. 10
Depositions
Regina
v.
John Lewis and William Quinn
Unnatural offence
Bathurst G[aol] D[elivery]
21/8/61
[Initialled] J[ohn] F[letcher] H[argrave, AG]
Stoney Creek

~ ~ ~ ~ ~

Sodomy
[Initialled] JFH AG
21/8/61

~ ~ ~ ~ ~

Justice SF Milford’s Notebook 3

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[Bathurst, Wednesday 4 September 1861]
John Lewis & William Quinn – sodomy on 7th August 1861 at Stoney Creek.
Plea not guilty by both.
Stephen for Crown, Pownall for prisoners.
Evidence for the Crown.

    George Poole. Sergeant in Mounted Police. I apprehended prisoner at Stoney Creek on 8th August last. I saw him the previous evening at Treatis Priest Public house about 9 or 10 in the evening. I saw them both together at the bar drinking. I saw them after about an hour in a private room. They laid along side each other Lewis with his trousers down. Quinn had his down. Treati Priest called me out & brought me into the room. They were partially drunk.

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    Cross-examined. George West was there. I saw a servant of Treatis Priest Jones was there. I did not remark anything particular about him. I saw nothing of Treatis Priest locking up a man in the Room. West was in the bar. The prisoners were drunk.

    James Priest. I am a publican at Stoney Creek. The man Quinn came on the 6th the other on the 7 August. They stopped there the n Quinn stopped the night of the 6th. They were working on the road. Quinn stopped all the day of the 7th. Lewis came in about 7 in the evening they were drinking. Between 9 & 10 we were going to bed.

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The candle was The men were away & the candle gone when I returned. I had gone away. There was a man named West. I went to put him to bed in verandah room. I took a candle with me. When I went into the room where West was to go I saw the prisoners. Quinn was lying on his face on the bed, both their trousers down. I w Lewis turned his face towards me. I saw Quinn’s pers Lewis’s privates against Quinn’s backside. I saw him come from the man, his privates came from him. I called out, you wretches what are you about. Sergeant Poole came in & dragged both out of

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the room. Lewis said, you bugger if I can’t walk I can row. Lewis went to his I went Neither said anything then. One was taken to the watch house that evening for by my son for abusing him. Lewis Quinn & the other Lewis I gave in charge the next morning for this crime.

    Cross-examined. I did not know the men before cri. Lewis was working on the road at my place. The other man had a swag & was travelling. I did not say both men working on the road. There was no excess in drinking at my house that day. They were not all sober nor all drunk. They might be a little

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intoxicated. There is a public [house ?] ½ mile off. West was drinking. There was no gambling or quarrelling going on. Jones is my cook. I had not lock them out of my room that day. No reference was made to me about a quarrel by Quinn. West was not drunk. He could walk as well as I can. He had slept there the previous night. I took him to the room to shew him the bed. He was not drunk. West is not here. He saw nothing. He was behind me going to his bed. They were gammoning to be intoxicated. They were sober. When they found out what was the matter I did not then tell Poole to take them in charge.

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Rainy weather at night & all day. I saw the shorter man’s face. I was examined before the magistrate. I did not tell them about my son. I am not positive whether I told them about not walking but rowing. Quinn was the most drunk of the two. West is generally dealing on the road. He went away from the door altogether. He is not here. The door opens inwards from the verandah. There were 3 single beds. Quinn was in the bed on the left hand side as you [go] on in. Lewis had a shirt on. [Why] I did not give them in charge was that I was vexed at this in my house. Lewis turned his head & laughed, the one who was above the other. I kept my eye on them till I saw what

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was the case. They separated themselves.

    Re-examined. When Poole came in Lewis was on the floor & Quinn I don’t know where he was. The candle was put out. I went in first & I went out & called in Poole. The trousers of both were down when the constable came in. It might be 2 minutes before I came back.

    By the Court. Lewis Quinn was given in charge by my son for abusing him – after the men came in there was quarrelling, words between Poole & Quinn. I went to bed 10 minutes or ¼ hour after. I had no conversation with Lewis before I went to bed nor with Quinn. – I had no quarrel

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with Lewis (?) 4 morning. I saw my son in the morning before I gave Lewis in charge. Before I gave Lewis in charge I knew that Quinn had been given in charge by my son. My son is not here.

    Re Examined by Stephen. When I called the constable in Poole was in the house when I called him. I brought him into the room. Poole helped to take them out of the room. I

    By a juror. Poole went that night to his house.

Pownall addressed the Jury.
Verdict guilty of the attempt not of the felony.
Imprisonment with hard labour in Bathurst Gaol for 2 years.

~ ~ ~ ~ ~

The Bathurst Free Press and Mining Journal, Sat 7 Sep 1861 5

BATHURST CIRCUIT COURT.
WEDNESDAY, 4TH SEPTEMBER, 1861.

This Court was opened this morning before His Honor Mr Justice Milford.
    Barristers present Mr Stephen, Acting Attorney General, and Mr Holroyd.
    Attorneys present Messrs McIntosh, Pownall, and Sergeant.

    After the formal opening of the Court the Clerk of Arraigns read the Royal Proclamation against vice and immorality, after which Mr Stephen handed to the court, the commission authorising him to act as prosecutor for the Crown in the absence of the Attorney General.

    His Honor stated that the present was a frightfully heavy calendar, there being no less than seven cases of capital offences for trial, and as he understood several of the prisoners in these cases had no the means of availing themselves of professional assistance for their defence, he desired to know whether the professional gentlemen present would undertake the causes of the undefended.

    Mr Holroyd submitted to the Court that the present course was altogether irregular, as all applications for assistance from the bar ought to be made to the Court by the prisoners themselves, and in such cases steps would be taken to ascertain whether the persons so applying were really destitute of the means to provide professional assistance.

    A chinaman, named Jim Sing, committed for wilful murder, being placed in the dock, said in reply to questions from his Honor, that he had no money, and would be glad to have Counsel assigned to him. Mr Holroyd and Mr McIntosh were then asked by his Honor to defend the prisoner and they consented.

    John Atkinson, also charged with wilful murder, was then placed in the dock and having in reply to his Honor stated that he had no means of providing for his defence and would be obliged if the Court wold assign Counsel in his case; Mr Holroyd was asked if he would undertake to defend this prisoner; he replied he would do so if the application were made in the proper manner. His Honor was of opinion that the course he was then pursuing was the proper one. Mr Holroyd dissented from his Honor’s views, contending that the prisoner should apply to the Court by petition, and as the ordinary course had not been adopted he should decline to act as counsel for the prisoner. As there were no other barristers present to whom application could be made, his Honor, requested Mr Pownall to undertake this case, and act as Counsel for the prisoner. Mr Pownall consented provided no more satisfactory arrangements could be made.

    In the case of Michael Walsh, also committed on a charge of murder, Mr Holroyd made application to the Court, to order that the sum of £30 belonging to the prisoner, and now in the hands of Mr McDonnell, innkeeper of Bathurst, should be given up for his defence. Mr H intimated that this money would have been available for the prisoner’s defence, but that the officers of the Crown had given orders to Mr McDonnell not to part with it.

    Mr McDonnell who was in the court said, that the money in question had been placed in his hands by Mrs Watt, the widow of the murdered man, with an intimation that it was part of a certain sum, which she was about to pay Mr C McPhillamy on account of a mortgage of some land in which she, (Mrs Watt) had a life interest. His Honor said under such circumstances he could not make any order in the case.

    Walsh said he had no money or property available for his defence and in reply to his Honor Mr Holroyd declined to undertake the case, as he was given to understand that the prisoner had means at his command. His Honor said that under such circumstances he must ask one of the Attorneys to defend the prisoner, as it was advisable in all cases where counsel was appointed that they should have a reasonable time to look over the depositions and prepare for the defence. Mr Holroyd was op opinion that if the present course were persisted in, all persons to be tried for capital offences would endeavour to have counsel assigned to them, rather than pay for their own defence. He had repeatedly been assigned by the Courts as Counsel for prisoners who had no means of defence, and had always acted cheerfully in such cases; but in the cases which had now occurred, the course pursued was not the proper one, and under such circumstances he should decline to defend, unless the application was made in the usual order.

    His Honor thought it was for him to say whether the course pursued was a correct one or not, and as he was left without he usual resources in such cases, he must apply to the attorneys for assistance. The Court was engaged during a full hour in this discussion which several times assumed a very unseemly appearance. …

SODOMY.

    John Lewis and William Quinn were placed at the bar, for having on the night of the 7th August last, at Stoney Creek, committed an act of sodomy.

    Prisoners pleaded Not Guilty.

    Mr Stephens [sic] in opening the case stated, that the case was of that nature that it would not be necessary for him to state the particulars.

    Serjeant Toole of the Mounted Police and James Priest, publican, Stoney Creek, Wellington Road, were examined. The evidence given was of such a character as to be unfit for publication.

    Mr Pownall addressed the jury for the defence, showing the improbabilities of the case as presented before them, and arguing that as the prisoners were both intoxicated at the time, they were not likely to commit such an offence.

    After his Honor had briefly summed up the jury retired for about an hour and returned into court with a verdict against both the prisoners of not guilty of the felony, but guilty of the attempt.

    The prisoners were then sentenced to two years hard labour each in Bathurst gaol.

~ ~ ~ ~ ~

The Bathurst Times, Sat 7 Sep 1861 6

BATHURST CIRCUIT COURT
WEDNESDAY, SEPTEMBER 4, 1861
(Before His Honor Mr Justice Milford.)

    The Court was opened at 10 o’clock by Mr Milford, the Clerk of Arraigns, reading Her Majesty’s proclamation against vice.

    Mr HM Stephen handed in a Commission from his Excellency [Governor] Sir John Young, appointing him (Mr Stephen) Acting Attorney-General for the prosecution of the prisoners for trial.

    His Honor the Judge here remarked that there were no less than seven individuals to be tried for capital offences, and he would be glad to know if Mr Holroyd, assisted by Mr McIntosh, would undertake the defence of such of the prisoners as were unprovided with pecuniary means. Mr Holroyd said that he had no objection to defend any prisoner who was without means if the application were made in the usual manner, but he respectfully suggested that the application for Counsel, under the circumstances, ought to be made to the Court by the prisoner, either by petition or letter. His Honor said that the course he pursued in asking prisoners, who were undefended, whether they wished to have Counsel assigned to them was the proper one. Mr Holroyd contended that that was not the usual and proper course, and, although he had consented to defend Jemmy Sing (a chinaman) for murder, he should decline to undertake the defence of any other prisoners who did not make the application through the Court. The Judge said that he, as the Court, was the proper authority to decide which was the correct way in assigning Counsel, and he considered no petition was necessary. Mr Holroyd, in reply, suggested respectfully that if the course his Honor was then pursuing were to become general, prisoners for trial for murder—and other capital offences—would never provide funds for their defence in the expectation of having Counsel assigned to them. His Honor remarked that Mr Holroyd was not the Court, and, therefore, was not the person to decide which was the proper course to pursue. Mr Holroyd, in reply, said that if he were the Court, he should act very differently. His Honor said that he considered that Mr Holroyd was treating the Court with disrespect by making such a remark. Mr Holroyd replied that he did not speak out of any disrespect: but with his present convictions, he certainly should act very differently if he were Judge. His Honor here asked Mr Pownall to undertake the defence of a prisoner for murder, as he was sorry he was deserted by the only Counsel. Mr Holroyd said his Honor had no right to say that he was deserted: he (Mr Holroyd) begged most respectful to say that if application were made to the Court in the usual manner, and his Honor assigned him as Counsel, he should be entirely at his Honor’s disposal. Mr Holroyd appealed to the attorney in Court who were aware of the practice adopted in cases where prisoners, charged with capital offences, were assigned Counsel.

UNNATURAL CRIME.

    John Lewis and William Quinn, were indicted capitally, for an unnatural offence with each other at Stoney Creek, on the 7th day of August, 1861.

    The prisoners pleaded Not Guilty, and being unprovided with funds, his Honor assigned Mr Pownall, to act as counsel and attorney for the defence.

    The details of the case are of course entirely unfit for publication. Mr Pownall addressed the court for the defence.

    The Jury retired for about an hour and returned into court with verdict of Guilty of the attempt to commit the unnatural offence.

    Sentence: Two year’s hard labour in Bathurst Gaol.

~ ~ ~ ~ ~

Bell’s Life in Sydney and Sporting Chronicle, Sat 7 Sep 1861 7

LOCAL INTELLIGENCE.
————


    HEAVY CALENDAR.—The following is a list of the prisoners now in Bathurst gaol, and warned for trial at the Circuit Court, commencing on Wednesday last, at Bathurst:—John McKenzie, carnally abusing a girl under the age of ten years; James Grant, forgery; Tim Sing Chung, murder; John Atkinson, murder; An Yan, carnally abusing a girl above ten, and under twelve years of age; James Smith, robbery being armed; Michael Walsh, murder; John Lewis and William Quinn, sodomy; Samuel Slater and Lachlan Thompson, forgery and uttering; William Webster, larceny. His Honor, Mr Justice Milford, Judge; Mr Milford Clerk of arraigns; Mr Stephens, assisted by Mr Jackson, Chief Clerk to the Crown Solicitor, will prosecute.—Goulburn Herald.

  


1  SRNSW: NRS880, [9/6437], Supreme Court, Papers and depositions, Bathurst, 1861, No. 10. Emphasis added.

2  Mn: (Regina versus William Quinn commission of an unnatural offence:)

3  SRNSW: NRS7456, [2/6300], Judiciary, SF Milford, J. Notebooks Circuit Courts, (Bathurst, Maitland, Brisbane, Goulburn), 1856-65, pp. 2-9. Emphasis added.

4  Photocopy of text too faint to read.

5  The Bathurst Free Press and Mining Journal, Sat 7 Sep 1861, p. 2. Emphasis added.

6  The Bathurst Times, Sat 9 Sep 1861, p. 2. Em phasis added.

7  Bell’s Life in Sydney and Sporting Chronicle, Sat 7 Sep 1861 p. 3. Emphasis added.