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1866, Matthew Kelly - Unfit For Publication
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Depositions for Matthew Kelly 15 May 1866, Sydney trial 1

Charles A Sinclair, PM & Visiting Justice,
Port Macquarie Gaol, 29 December 1865

Secretary, Crown Law Offices, Sydney

Sir,
    I have the honour to forward for the information of the Honorable the Attorney General the accompanying depositions taken in the case of the prisoner named in the margin (Matthew Kelly a prisoner undergoing sentence in the Port Macquarie Gaol) who is committed to take his trial at the next ensuing general gaol delivery to be holden at Darlinghurst, for the abominable offence with which he stands charged. 
    Two of the principal witnesses against the accused are prisoners undergoing their respective sentences in the gaol at Port Macquarie.

I have the honour to be,
    Sir,
your Obedient Servant.

~ ~ ~ ~ ~

Memorandum of Depositions Transmitted, Matthew Kelly, 29 Dec 1865

 

Gaol Police Office. Port Macquarie
                         29 December 1865

 

Memorandum of Depositions Transmitted

 

Names and Description of the Persons Committed

 

Nature of the Charge

 

Date of Committal

 

Names of Witnesses Bound to appear

 

To what Officer and Place the Depositions have been sent, and when

 

Matthew Kelly B now a Prisoner in Port Macquarie Gaol

 

Unnatural Crime

 

27 December 1865

 

Joseph Gates

Henry Scrambel

John William Donnelly

 

Secretary B Crown Law Officers B Sydney

 

 

 

Henry Scambel and John William Donnelly have not entered into a recognizance as they can be produced by a writ of habeas corpus [Initialled] CAS

 

To The Honorable [sic], The Attorney General, Sydney.                    [Signed] Charles A Sinclair PM

 ~ ~ ~ ~ ~

Port Macquarie, New South Wales
TO WIT                                        }

On this 2nd day of January 1866, Matthew Kelly a prisoner in Port Macquarie Gaol in the Colony of New South Wales on oath deposes as follows, Jeremiah Hannagan, a warden in this Gaol and Charles Peck, a prisoner in this gaol are necessary witnesses for my defence The Warden Jeremiah Hannagan to prove that there was a light in the dormitory where the alleged offence was committed, and the other witness Charles Peck to prove that there was a conspiracy against me

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to charge me with the commission of some offence the nature of which I am not aware.
[Signed] Matthew (his X mark) Kelly.

[Signed] F Becke, Clerk of Petty Sessions, Port Macquarie.

Made and sworn by the above named deponent on the day and year first above mentioned.
[Signed] Charles A Sinclair, PM, Visiting Justice.

~ ~ ~ ~ ~

66/110

Joseph Gates, Port Macquarie Gaoler
3 January 1866

Acting Prisons Inspector

    On behalf of the Crown I will want the necessary Habes [habeas corpus ?] for the removal of the prisoner Matthew Kelly (the accused), Henry Scambel (Prosecutor) John Donnelly as witness – and should wish to know from the Attorney General if I will be required on the Trial so that arrangement can be made for my absence. I am, Sir, your Obedient Servant,
[Signed] Joseph Gates, Gaoler.

~ ~ ~ ~ ~

Forwarded to the Secretary to the Crown Law Officer.

    I would be glad to have an early intimation of whether the Gaoler will be required or not as also whether the witnesses required by the prisoner will be brought down by the Crown. B.C. 11th January 1866.

    Harold Maclean, Sheriff, by John Phelan, Under Sheriff, noted 11th January:

~ ~ ~ ~ ~

The prisoner Kelly is committed for the Criminal Court to be held at Sydney next sitting.
[Signed] JB.

~ ~ ~ ~ ~

66/190

Matthew Kelly, Port Macquarie Gaol
12 January 1866

Acting Inspector General of Prisons, Sydney

Sir,
I beg leave respectfully to inform you that I have applied to the Visiting Justice [Charles A Sinclair] here to allow some prisoners to be forwarded to Sydney on my behalf, that gentleman decline to accede to the request. May I beg you Sir will sanction my applying to the learned the Attorney General on the subject. I’m, Sir, Your Most Obedient Servant.
[Signed] Matthew (his X mark) Kelly.

~ ~ ~ ~ ~

Note regarding the above letter, n.d.

Charles A Sinclair, PM &Visiting Justice,
Port Macquarie Gaol

    There are three prisoners John Davidson, Arthur Pascoe, James Daly whom the prisoner Matthew Kelly asked to subpoena as his witnesses, but on examining them I found they could give no evidence in his favour and therefore refuse to give my consent to putting the Govt to unnecessary expense.

~ ~ ~ ~ ~

Harold Maclean, note regarding the above letter, 22 Jan 1866

    Forwarded to the Crown Solicitor with reference to the other papers in his hands concerning this trial. I would be glad to be informed, as soon as possible, whether any officer, will be required from the Gaol. It would be inconvenient for the Gaoler to be brought from his post.

~ ~ ~ ~ ~

[Various internal notes and responses]

13th January [1866] – 66:57.

    Sheriff, B.C. 11th January, inquiring if the Gaoler will be required, + whether Prisoner’s Witnesses will be brought down by the Crown.

    Reg: v. Matthew Kelly. (Unnatural Crime.) (Port Macquarie Gaol.) – 7,866. – S: C:–

~ ~ ~ ~ ~

24th January 1866

    Inform the Sheriff that it has not yet been decided ? to bring the three prisoners to Sydney + that the determination of that question awaits the request of the [illegible word(s) here].
[Initialled] A/G, JHP

    Sheriff informed accordingly.

~ ~ ~ ~ ~

B.C. 22:1:[18]66.

22nd January [1866] – 66:128

Sheriff, to Crown Solicitor; submitting an application from one Matthew Kelly, to have certain Prisoners brought to Sydney as Witnesses, on his Trial.

~ ~ ~ ~ ~

7,866. – S: C: Reg v. Matthew Kelly.

(Unnatural Crime.)

Committed at Port Macquarie.

~ ~ ~ ~ ~

See [illegible word(s) here]
[Initialled] A/G, JHP 24 January 1866

     Refer again when Visiting Justice and ask him to make a particular enquiry as to the evidence which the three prisoners when attendance is requested. Can give (?) again (?) that (?) their testimonies (?) of no value let the prisoner be informed that the Crown can’t bring them to Sydney
[Initialled] A/G, JHP 24 January 1866

~ ~ ~ ~ ~

25 January 1866
Visiting Justice
This Gaol Pt Macquarie
Informed accordingly.

~ ~ ~ ~ ~

66/289

Harold Maclean, Sheriff’s Office, Prison Branch,
Sydney, 29 January 1866
135/1866

Secretary, Crown Law Office, Sydney

Sir,
    I have the honour to acknowledge receipt of your communication of 24th instant Number 14 relative to witnesses applied for by the prisoner named in the margin (Matthew Kelly) and to call attention to the notification that the Steamer “Grafton”, which will return from Port Macquarie immediately before gaol delivery, sails for the former place on 7th proximo.

I have the Honour to be, Sir, Your Most Obedient Servant,
[Signed] Harold Maclean.

~ ~ ~ ~ ~

[Various internal notes and responses]

29th January [1866] – 66:135
Sydney, 29 January.

    Sheriff, stating Steamer Grafton, will return from Port Macquarie, immediately before Gaol Delivery, and Sail on 7th Proximo with reference to Matthew Kelly’s application for Witnesses.

~ ~ ~ ~ ~

(see 66:128.) [above]

    I haven’t yet (?) to order there (?) to be brought up at the public expense and in all probability shall not do so. Should they be called ? up it must be by Habeas Corpus which the Crown (?) under (?)
[Initialled] A/G, JHP

~ ~ ~ ~ ~

30 January 1866. Sheriff informed accordingly

~ ~ ~ ~ ~

Charles A Sinclair, PM & Visiting Justice,
Port Macquarie Gaol, 5 February 1866

Secretary, Crown Law Offices, Sydney,

Regina v. Matthew Kelly
Unnatural Offence

Sir,
    I have the honour to acknowledge the receipt of your letter of the 25th January which appears not to have been posted until the 30th that not being a post day for Port Macquarie, it must have been dispatched by the next opportunity, viz the 1st of February and only reached me today when I at once proceeded to the gaol and had the statements of the prisoners named in the margin (Arthur Roscoe, James Daly and John Davidson) taken down in presence of Matthew Kelly and a gaoler which I now forward as well as the cover of your letter that you may see the postmarks of the date of its being posted and received here. A steamer arrives here once a month, generally the 8th, and leaves for Sydney next day.

I have the honour to be,
    Sir,
your obedient servant.

1

    The Prisoner Arthur Roscoe being asked in the presence of the prisoner Matthew Kelly what evidence he could give in his [Kelly’s] favour states, that he was not awake on the night the offence was said to have been committed nor does he know anything at all about it. I did not go to sleep until 12 o’clock, I saw nothing of the kind going on – I sleep two beds from the prisoner Kelly

2

it might have taken place without my knowing it. The lamp was lit all Christmas night.
[Signed] Arthur Knowles Roscoe.

This is all the evidence I could give that I brought to Sydney.
[Signed] Arthur Knowles Roscoe.

Made and signed before me this 5th day of February 1866.
[Signed] Charles A Sinclair, Visiting Justice.

3

James Daley, states in the presence of the prisoner Kelly and stated he was [with] him at nine and again at half past 10 o’clock. After eleven o’clock he said lost sight of (?) – it could not have taken place at the hour I was awake without my noticing it. This is all the evidence I can give, the lamp was burning during the time I speak

4

off this is until 11 o’clock. When I woke at 3 o’clock it was then burning this is all the evidence I can give.
[Signed] James Daley. There are 3 men sleeping between me and the prisoner Kelly,
[Signed] James Daley.

Made and signed before me this 5th day of February 1866.
[Signed] Charles A Sinclair, Visiting Justice.

5

James Davidson stated in the presence of the prisoner Matthew Kelly, stated that during the time that I was awake nothing of the kind as Kelly is charged with could have happened without my seeing it. I did not go to sleep until 3 o’clock in the morning, I lie on the opposite side to Kelly about 8 feet from him – in an angle on the opposite side of the ward.

6

  2 I could see from where I sleep to Kelly’s bed, I did not tell Mr Gaoler that something dirty was going on and that I wished to have nothing to say in the matter, or to do in the matter.
[Signed] James (his X mark) Davidson.

Made and signed before me this 5th day of February 1866.
[Signed] Charles A Sinclair, Visiting Justice.

~ ~ ~ ~ ~

The prisoner Davidson told me on first enquiring that there was something wrong going on wrong in the wing but he wanted to have nothing to do in the matter.
[Signed] Joseph Gates, Gaoler.

~ ~ ~ ~ ~

Matthew Kelly, Darlinghurst Gaol,
Sydney, 12 February 1866

John Cecil Read, Principal Gaoler, Darlinghurst Gaol

Sir,
    I beg most respectfully to request you will lay this before the proper Authorities with the view of having my case put off until the 4 witnesses named in the margin (Prisoners– John Davidson, Charles Peck, Arthur Roscoe, James Daley) can be brought to Sydney to give evidence on my behalf. I remain, Sir, Yours Humbly,
[Signed] Matthew (his X mark) Kelly.

Attention: for the Crown Solicitor.

~ ~ ~ ~ ~

[Various internal notes and responses]

18th February 1866

Send this to the Crown Solicitor (?) as all the informations (?) are the had better be prosecuted with (?) this sitting. Let (?)

~ ~ ~ ~ ~

19th February [1866] – 66:309.

    Sydney 19th February. WG Beverley, inquiring if Case – Reg. v. Kelly – (Unnatural Offence,) is to be tried at present Sittings, Criminal Court.
Immediate

1

William Gore Beverley, Sheriff’s Office,
Sydney, 19 February 1866

John Hubert Plunkett, Attorney General, Sydney

My dear Sir,
    With reference to the case of the prisoner Kelly awaiting trial for an unnatural offence committed in Port Macquarie Gaol the Sheriff is anxious to know whether it is intended that the case shall be tried at the present Court as an opportunity offers for returning the Gaoler by steamer this evening which is very desirable.

    The Gaoler is here with all witnesses required

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by the Crown and also the prisoner.

The Warden, which is one of the witnesses applied for by the prisoner, is one of the escort.

Yours faithfully,
[Signed] WG Beverley.

~ ~ ~ ~ ~

Matthew Kelly, Darlinghurst Gaol
23 February 1866

John Williams, Crown Law Solicitor, Sydney

Sir,
    I am a prisoner of the Crown and stand committed to take my trail at the next Criminal Assize at Darlinghurst. My case has been postponed for the attendance of my witnesses, by Judge Hargraves. The Witnesses are all Prisoners except one, a Warder at Port Macquarie. Four of the prisoners are at Port Macquarie and three of them are in Darlinghurst. 

    I humbly request, Sir, that you will subpoena the witnesses of which I send you a list, and that you will see that their attendance is enforced as they are necessary to prove my innocence. I am, Sir, Yours Truly,
[Signed] Matthew Kelly.

The names are: Jeremiah Hannagan, Warder, Port Macquarie;
John Davidson, Prisoner, Port Macquarie;
Charles Peck, Prisoner, Port Macquarie;
James Daly, Prisoner, Port Macquarie;
Arthur Roscoe, Prisoner, Port Macquarie,
Thomas Mace, Prisoner, Darlinghurst;
Thomas King, Prisoner, Darlinghurst;
George Wilson, Prisoner, Darlinghurst.

~ ~ ~ ~ ~

Matthew Kelly, Darlinghurst Gaol
4 March 1866

John Williams, Crown Law Solicitor, Sydney

Sir,
    I beg to request that you will subpoena the witnesses for my defence (a list of which I send you). I wrote to you some time ago on the subject but have not received any communications concerning the matter. I’m very anxious to know if my witnesses will be in attendance the time is drawing nigh for trial and they have not yet arrived from Port Macquarie, will you please be kind enough to inform me if they will be up by the time of trial. I am, Sir, Yours Truly,
[Signed] Matthew Kelly.

[On the reverse of the above letter is the same list of witnesses as per 23rd Feb 1866 letter cited above.]

~ ~ ~ ~ ~

[Note on above letter]

John Cecil Read, Principal Gaoler,
Darlinghurst Gaol, 4 March 1866

    I know that it is almost unnecessary to fund them but to present the depositions of this prisoner having any excuse at his trial I beg leave to forward [them].

~ ~ ~ ~ ~

Document, n.d. & n.a.

    Charles Peck now under sentence at Port Macquarie stated before the Presiding Magistrate in the office of the Gaol at Port Macquarie – after my committal.

    That he heard the prosecution, Donnelly in my case – repeatedly say that if he would get reward from Mr Gales charge if he had to make a Criminal Court job of it –

    James Davidson – stated at the same twice he was awake until 3 o’clock in the morning and that it was impossible for the said offence to have taken place without his cognizance thereof – 

    James Daly at the same twice stated before the Magistrate that he was awake until 11 o’clock on the night in question. And saw nothing of the alleged offence which could not have transpired without his seeing it up to that hour – 
Arthur Roscoe – states: I lay next to the prisoner on the night in question and was awake up to 12 o’clock and saw nothing to arouse his suspicions much less the revolting offence brought against the prisoner Matthew Kelly.

~ ~ ~ ~ ~

No. 66/30

Frederick Becke, CPS
Port Macquarie, 1 March 1866

436/1866

William Edmond Plunkett, Under Secretary
Crown Law Department, Sydney

Sir,
I am instructed by the Visiting Justice of the Gaol at this place, to transmit to you a fresh (Recognizance 27 Feb 1866) recognizance taken in the case of the prisoner named in the margin (Matthew Kelly charged with unnatural crime) whose trial has been postponed until the next general gaol delivery to be holden at Darlinghurst on the 12th of March, instant.

I have the honour to be,
    Sir,
Your Obedient Servant,
[Signed] F Becke.

~ ~ ~ ~ ~

William Gore Beverley,
Sydney Sheriff’s Office, 8 March 1866

Dear GC Fraser,
    Thomas Mate, one of the witnesses in the case of Kelly sodomy, was sometime since removed to Berrima Gaol for separate treatment but he will be required at the Trial next Criminal Court, will you forward a writ of habeas corpus under which he can be brought down.
Yours faithfully,
[Signed] William Gore Beverley.

~ ~ ~ ~ ~

66/720

212
Harold Maclean, Sydney Sheriff
10 March 1866

Crown Solicitor, Sydney

Sir,
    In acknowledging the receipt of your letter of 8th instant, notifying that the trial of prisoner Kelly for sodomy is postponed till the next criminal court, I have the honour to request that you will cause all necessary papers for the production of the witnesses to be forwarded to me in sufficient time to admit of them being brought from Port Macquarie.

I have the Honour to be,
    Sir,
your most obedient Servant,
[Signed] H Maclean.

~ ~ ~ ~ ~

1

Depositions of Witnesses.

New South Wales
TO WIT                }

The examination of Joseph Gates of Port Macquarie Gaol in the Colony of New South Wales, Gaoler, and Henry Scambel [aka Scambell], of Port Macquarie Gaol in the Colony aforesaid, a prisoner and of John William Donnelly [aka Donelly] in the said Colony, of Port Macquarie Gaol, prisoner, taken on oath this twenty seventh day of December in the Year of Our Lord One Thousand Eight Hundred and sixty five at Port Macquarie Gaol 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 Matthew Kelly of Port Macquarie Gaol in the Colony aforesaid, prisoner who is charged this day before us for that he the said Matthew Kelly on the 25th day of December 1865 at Port Macquarie Gaol in the said Colony, did in and upon one Henry Scambel, a prisoner in Port Macquarie Gaol in the said Colony feloniously made an assault and then feloniously wickedly and against the order of nature had a venereal affair with the said Henry Scambel and then feloniously carnally knew the said Henry Scambel and then feloniously wickedly and against the order of nature with the said Henry Scambel commit and perpetrated that detestable and abominable crime of Buggery not to be named among Christians against the form of the statute in that case made and provided and against the peace of our Lady the Queen her Crown and Dignity.

2

    Joseph Gates being duly sworn states – I am gaoler at Port Macquarie Gaol, the prisoner Matthew Kelly now before the Court is a prisoner confined in this gaol and was received in this gaol on the 8th of December instant [1865] from Sydney and is still a prisoner in the gaol, he and Henry Scambel also a prisoner in the gaol sleep in the same ward and in the next bed by each other and have slept in the same ward since their arrival from Sydney. From information I received this morning from other prisoners in the same ward that there was some improper conduct going on between the man Scambel and the prisoner Kelly I sent for the man

3

Scambel to my office and questioned him in this matter and he Scambel told me that “connection” had taken place between him and the prisoner Kelly the same as between a man and woman, and in questioning him further, he Scambel told me that he was placed on his side when Kelly committed the unnatural offence on him.

    I then captured prisoner and have him now brought before the court for this offence. After being asked by me Scambel made this statement voluntarily without any threat or pressure being held out to him.

    By Prisoner: There is a man named John Donelly [sic] who sleeps on the other side 

4

of Scambel.
[Signed] Joseph Gates

Before us, at Port Macquarie Gaol, this 27th day of December 1865.
[Signed] Charles A Sinclair, PM. SM Donald, JP.

    This Deponent Henry Scambel on oath saith as follows: I am a prisoner in this gaol and sleep in the same ward with Matthew Kelly, the prisoner now before the court. On Christmas Night this man Kelly asked me if he “would do me over”. He then groped me about my private parts, he came then into the same blanket with me when he was groping my parts his hands were

5

under my blanket and his bed and my bed were next to each other and touching and he put his “thing” into my bottom – by thing I mean his private part – he was not very long about it. I felt something wet pass from his thing into my bottom. I knew what it was it was his seed that passed inside me, there was no light at the time in the room – it was dark. That was the first time he did it. It was about 9 o’clock at night. “Little Donnelly” was on the other side of me and he was now asleep. I did not know what he was going to do with me

6

Kelly asked me if I would let him have a bit. I did not tell anyone what had taken place I was too ashamed. I’m quite sure that Kelly put his private part into my bottom and left there something wet. He entered my bottom about 3 inches before the emission took place. I have been to school and been taught that there’s a God, I don’t know my age Prisoner did not offer me anything he has not spoken to me since.

    By Prisoner: I say it was on Christmas night when this took place and I believe it was about 9 o’clock. I don’t speak to any of the prisoners and I have not been told what

7

I am to say. You did hurt me at the time. I did not sing out because I was ashamed. I did not put my hand under your blanket. No one ever did the same to me before what you did. I have heard my father repeat the Lord’s Prayer.
[Signed] Henry (his X mark) Scambel.

Sworn before us at Port Macquarie Gaol this 27th day of December 1865.
[Signed] J Becke. Charles A Sinclair, PM. JM Donald, JP.

    John William Donnelly being duly sworn states – I am a prisoner in this gaol and I knew the prisoner Matthew Kelly now before the Court

8

and he sleeps in the same ward with me. I have on several nights observed the prisoner very nearly put out the light and on one night he put out the light altogether. This was some 3 or 4 nights before Christmas.

A couple or three nights before Christmas.

    Scambel sleeps between Matthew Kelly and myself, on Christmas night – the prisoner Kelly and Scambel being under the same blanket the light was dim but sufficient for me to see what was going on, I got up and on the following morning I reported it to the Principal Warder as it was not proper.

9

While the two Kelly and Scambel were under the one blanket I heard Scambel say to Kelly “I won’t – I won’t – ” the light that same night was put down dim by prisoner and it was on Christmas night there I saw the two men Scambel and Kelly under the one blanket. When Scambel called out “won’t – I won’t – ” I then felt it was improper.

    By Prisoner: Where I lie is about 18 inches from Scambel – could see you playing under the blanket and you were moving about under the blanket. I reported it on Tuesday morning to the Wardsman of our ward.
[Signed] John W Donelly.

Sworn before us at Port Macquarie Gaol this 27th December 1865.
[Signed] Charles A Sinclair, PM, and JM Donald, JP.

10

Statement of the Accused.

 

New South Wales
TO WIT                 }

Matthew Kelly stands charged before the undersigned, two of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 27th day of December in the Year of Our Lord One Thousand Eight Hundred and sixty five for that he the said Matthew Kelly on the 25th day of December 1865 in Port Macquarie Gaol in the said Colony, did in and upon one Henry Scambel, a prisoner in Port Macquarie Gaol in the said Colony, feloniously make an assault and then feloniously wickedly and against the order of nature had a venereal affair with the said Henry Scambel and then feloniously carnally knew the said Henry Scambel and then feloniously wickedly and against the order of nature with the said Henry Scambel commit and perpetrate the detestable and abominable crime of buggery not to be named among Christians and the examinations of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the accused having been read or caused to be read to him by the said Justices by or before whom such examination has been so completed, and the said Justices 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 have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trial, notwithstanding such promise or threat; and the said charge being read to the said Matthew Kelly and the witnesses for the prosecution Joseph Gates of Port Macquarie Gaol Gaoler, and Henry Scambel of Port Macquarie Gaol Prisoner and of John William Donnelly of Port Macquarie Gaol in the said Colony, prisoner, being severally examined in his presence, the said Matthew Kelly is now addressed by us 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; whatever you say will be taken down in writing, and may be given in evidence against you upon trial;” whereupon the said Matthew Kelly said as follows: “I am as innocent as the child unborn.”

Made before us, Port Macquarie Gaol this 27th of December 1865.
[Signed] Charles A Sinclair, PM & JW Donald, JP.

11

    The Prisoner Matthew Kelly stands committed to the General Gaol Delivery, to be holden at Darlinghurst, Sydney, when an indictment will be prepared against him for the offence of which he stands charged.
[Signed] Charles A Sinclair, PM & JW Donald, JP.
Port Macquarie Gaol 27th of December 1865.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

27th December 1865
7866
Depositions.
Regina v. Matthew Kelly
Unnatural crime
Next Sydney Gaol delivery
[Initialled] AG

6 Feb 1866
Sodomy
Port Macquarie (Gaol)

~ ~ ~ ~ ~

Justice A Stephen’s Notebook 3

81

[Sydney, 15 May 1866]

2 years ago. Guilty but recommended to mercy on the score of good character –
3 years Hard Labour Roads &c.

    Matthew Kelly. Sodomy with one Henry Scambel at Port Macquarie on Christmas Day last.

    Joseph Gates. Gaoler at Pt Macquarie. In December prisoner was (then ?) confine(d) there. So was Henry Scambel & John Donnelly. – Kept in 4 cell – 38 in all. S’s bed was next prisoner’s on 5 Donnelly was the opposite side:– On the afternoon of 26th received some information and removed S. from cell. Donelly told me The beds are iron … above the floor.

82

    Cross-examined It (was ?) me by that Scambel … & not you … was in the middle. It was No. 2 ward. There was a large oil lamp lit in it every night … in a window … which I saw there always at ½ past 9 at night. Never heard any bad conduct of yours. Donnelly’s character was fair … good … except on one occasion when he was very outrageous. 6 I am sure that the light had been on up to 10 that night. Had no examination by a surgeon. Understood that a surgeon could give no information. – The beds were within 6 inches of each other … the room being then crowded. Can’t recollect whether S. said that the light was out. Port Macquarie is considered by the prisoners to be a place of severe punishment and from which they are all anxious to escape.

83

    Henry Scambel. (B) 7 Believe that I am 17. Father a Corporal of 11th in Sydney. Can’t read. Not taught to say my prayers. Father and Mother born (?) in England. She is Irish. I was sentenced to 12 months for stealing plates. 8 I slept in the middle between Donnelly on one side & prisoner on the other … next to me. It was on Christmas Night. Made up our beds at ½ past 5. Went to bed. This prisoner Kelly was doing something wrong to me something bad. (Gates explains the position of the beds & the light and windows &c.) – Did to me what a man does to a woman. Said that I was better than a woman. With that he done it to me. Put his private parts in to me. It was to my back part: to my bottom. He touched my privates with his hands. About 11 o’clock

84

He got into my bed. He was doing it about a minute. There was wet came from him. Can’t say especially the hour. It was somewhere about 11. The light was out. Can’t tell if Donnelly was awake. Prisoner said that he would pay my passage to Sydney. That was in the morning. Don’t remember any one saying about turn over.

    Deposition read at the prisoner’s request – “Prisoner said could he give me a do over.” There was no light. Kelly put it out. Only ½ hour before. 9

    Cross-examined Nobody ever promised me any thing … no clothes or money. Nobody asked me to tell against you. I meant to tell it before I was brought in before Mister Gates. Should not have told if it had not been for Donnelly’s had been to Mister

85

Gates. Can’t tell the day of the week. Nor when Christmas Day is. – I was lying on my side. (Describes the position of each person.) The lamp was turned ½ down: not quite out.

    Gates. A man of prisoner’s height could turn down the lamp by standing on the bedstead: not otherwise. Don’t believe that a prisoner inside could see if his neighbour’s eyes were open … if the lamp was turned out.

John W Donnelly. In gaol for receiving. 10 – I was next to Scambel & on my opposite side was a prisoner: since dead. 11 Went to bed about 9. Did not go to sleep. Had some suspicions about prisoner – About 2 in the morning my attention was called by Hornbury to prisoner’s bed. I looked and saw prisoner & Scambel under the same blanket. In either prisoner’s or Scambel’s own bed … can’t say which of the 2 as they were so close.

86

The light had been turned down very low … don’t know by whom. I had seen prisoner turn it down several times … once altogether out. I reported about the 2 men immediately after breakfast … to the wardsman. 12

    Cross-examined I heard Scambel say I won’t. I know (?) him very well. I have slept alongside him for 6 weeks. The watchman could not see every thing going on. I was once put in the cells for rioting. – I am nearly 50: my wife is 38. Once some tobacco was thrown in and it was picked up by several. You had some and I asked you for some. Don’t recollect if you refused. I never said that I would be revenged on you. Nor that I would get away at all risks. Hornbury begged me not. 13

    Prisoner calls Thomas Mace. Have 3½ years to serve. Went to Port

87

Macquarie from Darlinghurst. I was in the ward at opposite angle to where prisoner slept. Light very good at 9 o’clock. You were sitting on the floor smoking – We had all pudding that day and better food than usual 14 … & better spirits accordingly. Could see you at 11 & 12 that night. Most of the men were awake at that hour and some not even gone to bed. Saw nobody go to the lamp ever. Was awake till 2 or 3 in the morning. Don’t believe it possible that you could have done what you are charged with without being seen by several. Have heard Donnelly say that he would be “one” with you. That was after the tobacco business. He said also that he would get out of the place at all hazards. 15  16

    Jeremiah Hanaran. I was warder. On No. 2 ward on last Christmas. Can see nearly all the prisoners by looking through [Judge’s note – A free man. Respectable looking]

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the window. On duty all night through. Observed no trifling with the lamp. Nothing particular. Looked frequently through into the ward. Particularly know where you slept. Saw you at the tub once. Two men could be in one bed, I believe without being known … for a short time. I may have been 20 minutes without looking through. 17

    Charles Peck. Only 3 months to serve. A few days before Christmas Donnelly told me that he would get away from Port Macquarie any hour – & that I would see in a few days – He asked several questions about you and what was your character. Once I heard him say for you refusing him some tobacco that he would be “one” with you some day. After this affair Donnelly said to me that nobody would blame him for doing all he could to get away.

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Nothing particular on Christmas Night. Don’t believe it possible that you could do what is imputed to you that night … not without being seen by several. I was awake myself till nearly 2 in the morning.

    Cross-examined I have known prisoner 3 years. I met him first in Parramatta Gaol. I was confined there … for an offence previous to my present one. 18

    Arthur Knolles Roscoe. Have 2 years and 4 months to serve. Lay 6 ft. from you. An empty bedstead was between us. I was awake till 12 and saw you and there was nothing wrong. Lamp was burning rightly till 4 in the morning. I am 25. Will not say if I was convicted before.

    James Daly. Have 16 months to serve. Remember Christmas Night. The lamp was alight till ½ past 10 and

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again till 3. Saw you till ½ past 10. I went to sleep then. I know the boy Scambel. He will answer any thing … not right in his head. I woke at 3 and went to the bucket.

    Thomas King. I have 10 years to serve. Was awake till 11 or 12. Saw you till near 10. Good light. Up to 12 many men were awake. – Awoke different times and did not see or hear any thing wrong. 19

    George Willison. 11 years to serve for charge of highway robbery. I was not in the yard. Scambel was put in our yard after Christmas 20 – Asked him why he was shifted in to us. He said that he had been separated to Mister Gates;

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and said what it was for – I said how came you to allow it and Scambel said No … that it was the men in the yard told him to go to Mister Gates … & he said something about his going to Sydney.

    John Davidson. Slept about 8 feet from prisoner – Did not go to sleep Christmas Night till between 2 and 3 o’clock. Others also were awake. Lamp was light. Neither saw nor heard any thing wrong. Saw you at times. I am in for Robbery. 16 years sentence by Milford J. –

    Prisoner: I have been many years in the Army and I know that many prisoners would accuse another of any thing for a billet … or to get even removed to another gaol … or something even more insignificant. I

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am suffering unjustly for stealing chimney sweeper’s tools which were lent to me. Am accused only by convicts … only one in fact; and he is an imbecile, easily put up to any story.

    Acquitted.

    The Verdict is not to be wondered at. But the prisoner was convicted in this Court a few years ago of an attempt to commit the same crime.

~ ~ ~ ~ ~

The Sydney Morning Herald, Wed 16 May 1866 21

CENTRAL CRIMINAL COURT
TUESDAY [15 MAY 1866]

    BEFORE his Honor [A Stephen] the Chief Justice and a general jury.

UNNATURAL OFFENCE.

    Matthew Kelly, a prisoner of the Crown, (whose trial on this charge stood over from last sittings at prisoner’s request), was indicted that he did at Port Macquarie gaol, on the night of the 25th December last, commit an unnatural offence.
    The Solicitor-General [Robert McIntosh Isaacs] conducted the case for the Crown. Prisoner was undefended.
    The main facts adducted in the evidence for the prosecution (which are unfit for publication) were stated by prisoners of the Crown, serving at Port Macquarie gaol. These were cross-examined at considerable length by prisoners, who also called many witnesses, to prove that the charge had been got up by the witness Donnelly, [witness for the defence] in order to get away from the prison, and also to show that the offence, if committed, under the circumstances stated in the evidence of witnesses for the prosecution, must have been observed by others, who did not see anything of the kind committed.
    Prisoner then made a statement in defence, strongly denying the truth of the charge against him, stating his former career, and attributing the charge to a desire on the part of his accusers to get to Sydney.
    The solicitor-general replied, and his Honor having summed up, admitting that the evidence for the Crown made out a case against prisoner, but, that, on the whole, taking the evidence on both sides, there was reason for doubt in the minds of the jury.
    The jury, without leaving the box, returned a verdict of not guilty.
    His Honor concurred in the verdict, but nevertheless had no doubt of prisoner’s guilt, and he held that in his hand which satisfied him on the point.
    Prisoner threw himself on his knees and proclaimed his innocence. Afterwards he asked his Honor to recommend a mitigation of the sentence he was serving, part of which he had passed in the greatest misery.
    The Court adjourned until 10 o’clock this morning.

~ ~ ~ ~ ~

Bell’s Life in Sydney and Sporting Chronicle, Sat 19 May 1866 22

CENTRAL CRIMINAL COURT.
————

    The present assize was opened on Monday by His Honor, Mr Justice Faucett, and has continued throughout the week. The calendar was unusually heavy. Unnatural offences (2), murder (8), wounding with intent to murder (1), fraudulent insolvency (2), wounding with intent to do grievous bodily harm (2), robbery with violence (1), larceny and receiving (2), forgery and uttering (4), stealing in a dwelling (1), bigamy (1), receiving stolen property (1), robbery being armed (3), obtaining goods under false pretences (2), larceny being a bailee (1), stealing from the person (3), concealing the birth of a child (1), cattle stealing (4), stealing gold (1).

TUESDAY, MAY 15.
(Before his Honor Sir Alfred Stephen, Chief Justice, and general jury.)

UNNATURAL OFFENCE.

    Matthew Kelly, a prisoner from Port Macquarie, was charged with this crime on a imbecile, a youthful prisoner named Scanlon [sic], in Port Macquarie gaol, on the evening of Christmas Day. The evidence was lengthy, but unfit for publication. Scanlon admitted, and a prisoner named Donnelly swore to, the offence, and seven or eight prisoners swore to the contrary.
    The prisoner was acquitted, his Honor agreeing in the verdict as based upon the evidence, but expressing a strong opinion of guilt.

~ ~ ~ ~ ~

The Sydney Mail, Sat 19 May 1866 23 

CENTRAL CRIMINAL COURT.
MONDAY. 

    Before his Honor Mr Justice Faucett and a general jury.

TUESDAY 

    Before his Honor the Chief Justice and a general jury.

    Matthew Kelly, a prisoner of the Crown, (whose trial on this charge stood over from last sittings at prisoner’s request,) was indicted that he did at Port Macquarie gaol, on the night of the 25th December last, commit an unnatural offence.
    The Solicitor-General conducted the case for the Crown. Prisoner was undefended.
    The main facts adduced in the evidence for the prosecutor (which are unfit for publication) were stated by prisoners of the Crown, serving at Port Macquarie gaol. These were cross-examined at considerable length by prisoner, who also called many witnesses, to prove that the charge had been got up by the witness Donnelly, in order to get away from the prison, and also to show that the offence, if committed, under the circumstances stated in the evidence of witnesses for the prosecution, must have been observed by others, who did not see anything of the kind committed.
    Prisoner then made a statement in defence, strongly denying the truth of the charge against him, stating his former career, and attributing the charge to a desire on the part of his accusers to get to Sydney.
    The Solicitor-General replied, and his Honor having summed up, admitting that the evidence for the Crown made out a case against prisoner, but that, on the whole, taking the evidence on both sides, there was reason for doubt in the minds of the jury.
    The jury, without leaving the box, returned a verdict of not guilty.
    His Honor concurred in the verdict, but nevertheless had no doubt of prisoner’s guilt, and he held that in his hand which satisfied him on the point.
    Prisoner threw himself on his knees and proclaimed his innocence. Afterwards he asked his Honor to recommend a mitigation of the sentence he was serving, part of which he had passed in the greatest misery.

  


1  SRNSW: NRS880, [9/6480], Supreme Court, Papers and depositions, Sydney May 1866. Emphasis added.

2  Mn: This is not the evidence he gave before me on a former occasion [initialled] C[harles] A S[inclair]

3  SRNSW: NRS7696, [2/7038], Judiciary, A Stephen, CJ. Notebooks Criminal, 1840-71, pp. 81-92. Emphasis added.

4  Mn: It was then very crowded

5  Mn: one side & that of

6  Mn: prisoner’s time would expire in August. Donnelly’s not till 1871. Scambel’s in September 66.

7  Mn: (B) An ugly ill-shaped and very stupid looking lad:– half idiotic: both neglected and ignorant

8  Mn: I was in the Port Macquarie gaol: the ward with prisoner and Donnelly:–

9  Mn: Prisoner stood on the bedstead to put out the lamp

10 Mn: sentenced by Meymott DI – I pleaded guilty – Have never been in any trouble before

11 Mn: Hornbury

12 Mn: went to the night tub and when I got back the prisoner and the boy were in their own beds.

13 I never heard Hornbury’s name in connection with this affair

14 Mn: It being Christmas Day

15 Mn: Will not say if I was ever convicted in Victoria.

16 Mn: 1 being of his name convicted in Queanbeyan

17 Mn: I am sometimes on only & was so on Christmas Day from 6 to 6: & then from 8 pm all night.

18 Mn: 3 times punished for larceny

19 Mn: Both prisoners sentenced by Wise J.

20 Mn: No. 2 – I was in No. 6.

21 The Sydney Morning Herald, Wed 16 May 1866, p. 5.

22 Bell’s Life in Sydney and Sporting Chronicle, Sat 19 May 1866, p. 3. Emphasis added.

23 The Sydney Mail, Sat 19 May 1866, p. 6.