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1869, Henry Shuttleworth - Unfit For Publication
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The Sydney Morning Herald, Thu 23 Sep 1869 1

    THE CIRCUIT COURTS.—The sittings of the Circuit Court at Deniliquin will commence on Monday, the 6th of October. There are at present eight cases in the calendar:—1 Julius Shanlark, perjury. 2 John Daley, larceny. 3 and 4, two other charges of larceny against John Daley. 5 and 6, Mark Joseph Blake, obtaining money by false pretences—two charges. 7 John Taylor, horse stealing. 8 Edwin John Flood, larceny.

    At Armidale, where the sittings are also fixed for the 4th, there is but one case for trial, namely, that of Thomas Vivers and William Vivers, for cattle stealing, and receiving.

    At the Wagga Wagga Court, to be holden at the same time, there are eight cases for trial:—1 James Ball and Patrick O’Brien, sheep stealing. 2 and 3 Thomas Cassidy, cattle stealing—two charges. 4 Thomas Christian, Timothy Murphy, and John Sullivan, cattle stealing. 5 Richard Burke, refusing to aid a constable. 6 Henry Shuttleworth, offence against nature. 7 James Hamilton, horse stealing. 8 George Ah Wah, horse stealing.

    At Maitland, where the sittings will commence on Friday, 15th October there are but two cases for trial:—1 Thomas Martin and Francis Trindall, wounding with intent to murder. 2 William Larkins, libel.

    At Goulburn, where the sittings will commence on Monday, the 18th October, there are seven cases for trial:—1 James Owens, arson. 2 James Taylor and George Bales, robbery, being armed. 3 Joseph Horne and John Bollard, attempting to rob, being armed. 4 John Couper, murder. 5 Mortimer Corbett, manslaughter. 6 James Consedine, perjury. 7 Richard Clark, manslaughter.

    At Bathurst, where the sittings will commence on Monday, the 25th October, there are three cases for trial:— James Mara, feloniously killing cattle. 2 William Burdett and Jane Kerr, larceny and receiving. 3 Maurice Dalton, manslaughter.

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Wagga Wagga Advertiser and Riverine Reporter, Wed 6 Oct 1869 2


    His Honor Sir Alfred Stephen  took his seat at the hour of 10 am, the members of the legal profession present being, Mr C Manning, Crown Prosecutor; Mr WC Windeyer, and Mr D Forbes, barristers– Messrs Williams, Windeyer, Gibbes, and Fitzhardinge, solicitors. The usual proclamation having been read and the jury empanelled, his Honor said he wished to make some remarks. He had been reported in the local press to have expressed opinions from the Bench during his last visit, which he had not only never expressed, but never held, and which had been quoted to his disadvantage in the Legislature. 3 He did not wish to make any complaint. Reporters, no doubt, had great difficulties to contend against. They had to write rapidly, and mistakes were excusable. But he desired to set himself right with the public, and would therefore, take this opportunity of contracting these incorrect reports in the place where they had been made. He had been represented as having said that the existing penalty for bushranging was too heavy—that higher punishment should be substituted—and in particular that the punishment of flogging was a barbarous and dreadful practice. He had, of course, never said anything of the kind. While everyone must deplore the necessity of severe punishment, it was undeniable that they were necessary. Flogging had been found effectual in putting a stop to the crime of garotte robberies at home, and in the same way the severe clauses of the outlawry Act had checked, to a most beneficial extent, the crime of bushranging here. There was another matter, also, to which he might as well allude. It had been put forth as a ruling of his that constables escorting prisoners from one part of the country to another had no right to handcuff them. This, of course, was simply absurd. Constables were bound to take all necessary precautions for the safe custody of their charge, and handcuffing was one of these precautions. He hoped this would be distinctly understood. The following cases were then proceeded with:—


    Henry Shuttleworth was charged with bestiality, [with a bitch ], at Narandera [sic]. Mr Forbes instructed by Mr Gibbes, appeared for the prisoner.

    James Wilson, constable, deposed to the arrest of the prisoner, he denied the charge.

    Cross-examined: Always believed prisoner to be of good character.

    William Flood, storekeeper, deposed that the prisoner was in his brother’s service, and that at half past nine on the morning of the 24th June, witness saw him commit the offence with which he is charged.

    For the defence:—Stephen Payne, butcher of Narandera, deposed to a quarrel having taken place between Mr Flood and the prisoner shortly before the present charge was brought. Mr Forbes having addressed the jury, and the Crown Prosecutor having replied, his Honor summed up, saying that the jury must either find prisoner guilty or impute perjury to Mr Flood. The jury, after a short absence, returned a verdict of guilty of the attempt.

    His Honor said that he would make no remarks on the case, there could be no room for doubt of prisoner’s guilty. The sentence was that he should be imprisoned in Goulburn gaol for two years.

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The Sydney Morning Herald, Sat 9 Oct 1869 4


THE SPEAKER took the chair at 29 minutes past 3 o’clock.


    THE SPEAKER took the chair at half-past three o’clock.


    MR WISDOM moved the adjournment of the House. In the Wagga Wagga Express of Wednesday last (October 6th), under the head of Circuit Court, he saw the following: “Unnatural offence. Henry Shuttleworth was charged with bestiality at Narandera, on the 24th of June last. Mr Forbes, instructed by Mr Gibbes, appeared for the prisoner.” Mr Forbes was the Crown prosecutor for the Southern district, and Wagga Wagga was, he believed, a portion of that district. It did seem to him somewhat extraordinary, if not indecent, that Mr Forbes should be defending a prisoner in a place where, at about the same time, it would be his duty to appear as prosecutor for the Crown. At the same assizes he saw the name of Mr Charles Manning as prosecutor for the Crown. It appeared to him that if the Crown prosecutors could go travelling about the country attending races and engaging in private practice in the defence of prisoners, there was nothing to prevent them from discharging their duties to the Government; and that therefore the eighty guineas which would be paid to Mr C Manning might and ought to have been saved to the country. He supposed that Mr Forbes would not have acted in the defence of a prisoner unless he had obtained the permission of the Crown Law officer, as to do so was contrary to the practice which prevailed. We were told with some braggadocia [sic–braggadocio–vain and empty boasting] by the hon member opposite, that things would be much better managed now that the Attorney-General was not a member of the Government; but he thought that nothing could more tend to demoralise public opinion than a spectacle of the kind to which he referred, and which he supposed must have been sanctioned by the Attorney-General. If Mr Forbes had so acted without authority, he ought not to be allowed to remain in his position; and if the Attorney-General had given his permission, the thing was indecent and improper. He saw that Mr Windeyer and Mr MH Stephen were present, both of whom were as competent to undertake the defence of a prisoner as Mr Forbes, and there was, therefore the less excuse for the appearance of that gentleman as counsel for the defence. He should like the head of the law department—(a laugh)—to explain, if he could, how this matter had arisen.

    MR ROBERTSON said that if he had been aware of the hon member’s intention to bring this matter forward, he might have been in a position to offer some explanation. At present he knew nothing about it. He would make inquiries.

    The motion was then put, and negatived.


1 The Sydney Morning Herald, Thu 23 Sep 1869, p. 4. Emphasis added.

2 Wagga Wagga Advertiser and Riverine Reporter, Wed 6 Oct 1869, p. 2. Emphasis added.

3 The previous occasion Justice Sir Alfred Stephen set at Wagga Wagga Circuit Court was 21-24 October 1867. Unfortunately no Wagga Wagga newspapers are available covering 1867. The author contacted the NSW Parliamentary Librarian, Greig Tillotson,  regarding Sir Alfred being “… quoted to his disadvantage in the Legislature.” There are no official Parliamentary Debates ( Hansard) for the period in question, 1867-69. However, the Sydney Morning Herald  published reports of the Parliamentary debates, prior to the establishment of the Parliamentary Reporting Staff. While these Herald reports are not verbatim and as complete as the later Official Reports, they do provide an invaluable record of speeches in the NSW Parliament. Scanned extracts of the Herald reports are available on the Parliament’s website: www.parliament.nsw.gov.au. Next click on the “Hansard and Papers” box on the website’s home page, you will see a link to “Records of Proceedings from 1824”, which will then take yo to “Reports of Parliamentary Debates in the Sydney Morning Herald”, arranged by year. Various searches were done by the author without finding any references to this particular issue.

4 The Sydney Morning Herald, Sat 9 Oct 1869, pp. 5, 6. Emphasis added.