1878, Dennis Connolly

Below also see: Dennis Connolly, 1878–II

Depositions for Dennis Connolly 4 Apr 1878 Yass trial ¹

Memorandum of Depositions Transmitted, 26 Feb 1878

G. 66 Police Office, Yass
Memorandum of Depositions Transmitted 26^th February 1878
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
Dennis Connolly	Sodomy	2 6 February 1878	Tommy Dodd, Aboriginal Native
			Charles Costley
			Patrick Brennan
To the Honorable, the Attorney General, Sydney [Signed] Leopold Yates, [Yass] PM

~ ~ ~ ~ ~

(M., 11 & 12 Vic., Cap. 42.)

Depositions of Witnesses.

New South Wales, Yass
TO WIT. }

The examination of Tommy Dodd [aka Dod] of Yass in the Colony of New South Wales, an aboriginal native, Henry Willett and confined in Her Majesty’s Gaol at Yass in the said Colony, Charles Costley a Warden of Her Majesty’s Gaol at Yass in the said Colony, and Patrick Brennan of Yass in the said Colony, Sub-Inspector of Police, taken on oath this 26th day of February in the year of Our Lord one thousand eight hundred and seventy eight at Her Majesty’s Gaol at Yass 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 Dennis Connolly who is charged this day before me, for that he the said Dennis Connolly [aka Connelly], on the 25th day of February Instant at Yass in the said Colony, did commit an unnatural offence with Tommy Dodd an aboriginal native aforesaid against the form of the statute in such case made and provided.

Her Majesty’s Gaol Yass

26th February 1878

Dennis Connolly
Attempt to commit Sodomy

Tommy Dodd an Australian black on oath saith as follows:– I am a member of the Church of England. I am at present a confinee in Yass Gaol serving a sentence of 14 days for drunkenness. I went to bed last evening about sundown. I do not know the number of the cell in which I slept. There were 2 others sleeping in the same cell, the prisoner Dennis Connolly was one and Harry Willett the other. We each had a separate bed. The prisoner Connolly was next to me and Willett the other side of him. About 9 o’clock I was dosing, half asleep, when the prisoner rolled on to my bed. He rolled close against me. I was lying outside the blanket and was wearing a shirt only. The prisoner had nothing more on than his shirt. No words

passed between us at the time. The prisoner spat in his hand and rubbed it on my backside. He did this 2 or 3 times, then he came close up to me and he put his person up against my backside – having first raised my shirt. His person penetrated my backside about ½ an inch. I am making no mistake in saying this. I felt nothing warm or moist come from the prisoner while he was in this position. I jumped up and hit prisoner over the jaw. I did not say anything to him but he said to me “You are mad”. I struck him again after this 2 or 3 times – prisoner then caught me round the neck and jammed me up against the wall. He hit me in the mouth and I sang out. I awoke Willett. I said to him “This cove is riding me.” Willett said nothing. In consequence of the noise in the cell, Warden Costley came up and also the gaoler. I did not say anything to either of them.

Bench: Costley when he came up asked what was the matter and I said, pointing to the prisoner Connolly, “This cove has been riding me.” Prisoner only said to Costley

“Bring the handcuffs in and hobble me up.” Costley then went away and returned shortly with Mr Fitzgerald the Gaoler. I gave prisoner no encouragement to do what he did. It was against my will. We were good friends the day before, I had no spite against him.

I was lying on my side at the time I felt the prisoner’s person penetrating me. I struck at prisoner as soon as I felt his person in me. I think I am about 16 years of age. Prisoner was raising his leg over my thigh when I turned round and struck him.

To prisoner: The reason I said nothing to you after you for the first time rubbed your hand in my backside was that I did not like to say anything to you because I was frightened. You asked me yesterday if I ever saw anything in your conduct to complain about and I said “No”. I did not say before going to bed before Willett and yourself “Do you want to see my arse”. I had a call of nature and you asked me what I was doing and I then said “Do you want to see my arse”. I was lying down in the yard with prisoner Merritt

the day before yesterday talking. I said to you that everyone disliked you. I have repeatedly heard the same in the yard say they did not like to speak to you the reason being for what you did to Merritt. I did ask you last night what you were committed for the other day.

[Signed] Tommy (his X mark) Dodd.

Sworn before me this 26th February 1878,
[Signed] Leopold Yates, PM.

And this Deponent Henry Willett on oath saith. I am a prisoner in Yass Gaol awaiting trial. I recollect going to bed last night in number 1 cell. Connolly and the black boy Tommy Dodd slept in the same cell. We each had a separate bed. I was awoke by the black boy, I asked him what was the matter. He made no answer but called for the Warder. The black boy again called to me and again I asked him what was the matter and he replied that prisoner Connolly “was trying to ride him”. Blows were then struck between them. I did not hear Connolly make any remark when the black boy said to me he had been trying to ride him. Warder Costley and the Gaoler then came to the cell and I heard the black boy make the same complaint to Costley as he had made to me. I cannot say if Mr Fitzgerald was at that exact time present. We (the prisoner, black boy and myself) remained in the same cell until morning.

Prisoner: The black boy awoke me by calling my name “Harry”. He called for the warder except

I did not hear him calling for a light. I am not aware that you struck a light.

[Signed] Henry (his X mark) Willett.

Sworn before me this 16th February 1878,
[Signed] Leopold Yates, PM.

And this Deponent Charles Costley on oath saith. I am a warder in the Yass Gaol. I was on duty last night. I was sitting in the sentry box about ½ to 9 o’clock. I heard a noise from the building. I went upstairs and was then aware that the noise proceeded from No 1 cell occupied by prisoners Connolly, black boy Johnny Dodd, and Willett. I went up to the door and asked what the row was about. The black boy said to me “Shift me out of this cell.” Connolly was talking very loudly so that I could not hear what more the black boy was saying. I did not enquire of the black boy why he wished to be shifted out of the cell, nor did I hear him say that Connolly had been riding him. Although he might have made such a charge to me but he was half crying at the time. When Mr Fitzgerald came up the prisoner said “I insist upon sending for a doctor”. He did not say what he wanted the doctor for, nor did I ask him. You have generally kept by yourself walking up and down

the yard. I am aware that you have been punished twice while in gaol for making use of bad language.

[Signed] Charles Costley, Warden.

Sworn before me this 26th February 1878.
[Signed] Leopold Yates, PM.

And this Deponent Patrick Brennan on oath saith, I am Sub-Inspector of Police stationed at Yass. I charged the prisoner Dennis Connolly this morning with attempting to commit an unnatural offence on a black boy named Tommy Dodd. He replied “I did not, you must know the charge is false.” Common sense would tell a man that it was false.

Prisoner has no question to put to this witness:

[Signed] PG: No. Brennan. Sworn before me this 26th February 1878.

[Signed] Leopold Yates, PM.

~ ~ ~ ~ ~

(N., 11 &12 Vic., Cap. 42.)

Statement of the Accused.

New South Wales,
TO WIT. }

Dennis Connolly stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 26th day of February in the year of Our Lord one thousand eight hundred and seventy eight for that he, the said Dennis Connolly on the 25th day of February Instant at Yass, in the said Colony, did commit an unnatural offence with one Tommy Dodd an aboriginal native 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 caused to be read to him by me, the said Justice, (by/for) before whom such examination has been so completed; and I, the said Justice, having also stated to the accused and given him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trial, not withstanding such promise or threat: and the said charge being read to the said Dennis Connolly and the witnesses for the prosecution, Tommy Dodd, Henry Willett, Charles Costley and Patrick Brennan being severally examined in his presence the said Dennis Connolly 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 are not obliged 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 Dennis Connolly says as follows:– “I never had a stain on my character in my life and it is unreasonable to suppose that I should have been guilty of such an offence, within 2 days from my committal for a similar charge. It is a concoction from the beginning to end in the 2 cases and Merritt and the black man Christian are at the heart of it.”

[Signed] Dennis Connolly.

Statement made before me at Yass this 26th February 1878.
[Signed] Leopold Yates, PM.

The prisoner stands committed to take his trial at the Circuit Court to be holden at Yass on Monday the 1st day of April 1878.

[Signed] Leopold Yates, PM.

~ ~ ~ ~ ~

(O. 1, 11 & 12 Vic., Cap. 42.)

Recognizance to give Evidence.

New South Wales,
TO WIT. }

Be it remembered, that on the 26th day of February in the year of Our Lord one thousand eight hundred and seventy eight Patrick Brennan a Sub-Inspector of the Police Force, Tommy Dodd an aboriginal native of Yass at present a confinee in Her Majesty’ Gaol Yass in the Colony of New South Wales, Henry Willett of Yass in the said Colony, a confinee in Her majesty’s Gaol at Yass aforesaid and Charles Costley of Yass Gaol Warden in the said Colony, personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledge themselves to owe our Sovereign Lady the Queen the sum of

FORTY POUNDS EACH,

of good and lawful money of Great Britain, to be made and levied on their Goods and Chattels, Lands and Tenements, for the use of our said Lady the Queen, her Heirs and Successors, if they the said before mentioned person shall fail in the condition endorsed. Taken and acknowledged, the day and year abovementioned, at Yass in the said Colony, before me.

[Signed] Leopold Yates, PM.

The condition of the within written recognizance is such, that whereas Dennis Connolly was this day charged before Leopold Yates, Esquire, one of Her Majesty’s Justices of the Peace for the said Colony, with sodomy if therefore, they the before mentioned person shall appear at the next Court of Assizes to be holden at Yass, in and for the Colony of New South Wales, on the 1st day of April next at 9 of the clock in forenoon, and then and there give such evidence as they now, upon the information to be then and there preferred against the said Dennis Connolly for the offence aforesaid to the Jurors who shall pass upon the trial of the said Dennis Connolly, then the said recognizance to be void, or else to stand in full force and virtue.

[Signed] Leopold Yates, JP.

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[On the depositions’ cover sheet is the following]

Circuit Court Yass
April 1st 1878
No. 44
Depositions.
Regina No. 5.
v.
Dennis Connolly
Sodomy
Committed at Gaol, Yass
on 26th February 1878

~ ~ ~ ~ ~

Sodomy

4/3/78
[Initialled] W[illiam] J[ohn] F[oster] AG

~ ~ ~ ~ ~

Justice WM Manning’s Notebook ²

Yass April 4th 1878
No. 10 resumed Regina v. Dennis Connolly

Regina v.
Dennis Connolly	}	Sodomy

Mr [RM] Sly (LLD) for prisoner as assigned counsel.

Mr [E] Lee to Jury. Prisoner in alley with a blackfellow named Tommy Dod & one Willett & there at night attempted sodomy with the blackfellow – who says he [sentence unfinished].

Tommy Dod. Examined by me [Justice Manning] as to his competence & considered to be competent. ³

I come from (?). Have been (worker ?) under Captain (French ?), & have

been accustomed to go to the English Church. Don’t know my age, (about 27 or 28 I think) I was put into gaol for 14 days for drunkenness here. Prisoner was also there. Slept in same cell – & Harry Willett, three different beds. I went to my bed just about dark some weeks ago. I went in by myself first – then prisoner & then Willett, but all one after the other. Were locked in at sundown. I took my clothes off – trowsers & had nothing on but shorts. Lay outside blanket. Went to sleep – a half sleep, after dark a good bit. We had been talking before. My bed about a foot wide – from prisoner’s & he & Willett close together – my bed a foot wide. This prisoner rolled up to me –

beds all on the floor – kept rolling up & rolling up & then he spit in his hand & put it on my behind – his spit. & then spit again on his hand & rubbed on again – then rolled up closer & again spit on his hand & rubbed on my backside – third time. Then he came up close again me, & put his long thing – & put it up my backside. I am sure it entered right in – about an inch – I was lying on my side with face towards the wall & he behind me.

I was all over wet with spit – only with spit off his hands.

When I felt that I jumped up & hit him across the side of his jaws & hit him a second time. He said I was mad. I then got a boot & hit him over the head with that. Then I got the tub – night tub, & hit him with that – He said to Harry that fellow’s bloody mad. I did not say “nothing”. Then when I

hit him with the tub, he got hold of me & knocked me down on the floor. I got up & struck him & jammed him against the wall – & he got his arm round my neck & hit me on the (lip ?). The other man was (holding ?) him & trying to pull him off me. I told the other fellow – I said “Harry, Harry get up”. He did not & would not answer. I said “Get up Harry this cove is riding me.” I said that 2 or 3 times. He did not do anything till I hit the prisoner. I called the warder.

He came & asked me what’s up. I said “This chap is riding me.” He did not hear me – prisoner was making a noise. Warder afterwards came in & I told him – Prisoner said you bring the leg-irons & put them on my legs. He said he did not know what he was saying, he was

frightened. He was crying.

The warder went for Mr Fitzgerald the gaoler, and he came. I told him the same thing, that the prisoner was riding on me. The prisoner said to him Put on the bloody leg-irons.

They left us all in the same cell that night – no leg-irons put on prisoner. Nobody told me to tell lies about prisoner – I had had no falling out with the prisoner. I am quite certain he was right in.

Cross-examined by Sly. I was gammoning to sleep – I was just going to sleep – was not asleep at all. Willett was in his bed next to prisoner. Prisoner was in the middle. They were talking.

Checked by Sly: Prisoner asked Harry Willett – They were not talking up to the time prisoner asked Harry Willett.

Ditto: He asked him if he was asleep. Harry said I am going to sleep now.

It was about 10 minutes after that that prisoner rolled to my bed. I gammoned to be asleep. He spat on his hand 3 times & rubbed on me. I let him – I said nothing – When he did the offence to me I said nothing. About 10 minutes after his first beginning to roll up to me to the time of the offence – I did not move. I hit him with my fist first then with boot on head – threw the boot at him & it hit Willett. I hit him with fist and tub – don’t know where I hit him. It was dark. I [means I’m] certain I hit him. I felt him. He was pretty close to me. I saw him spit on his hand. I am sure of that. I am sure I hit him & he hit me. He had hold of me – made my lip bleed. Warder brought a light. I did not (show ? stem ?) the bleeding, about a handful of blood. Did

much bleed. Willett did not answer me. I did not see him move.

I and prisoner had a fight & rolled over on the floor. Harry did not get up. I did not see. I could not, because it was dark. I said to the warder This [man] was riding me two or three times. He did not hear me. He was deaf, I expect. Prisoner was making a great noise, wanted to stop me from talking to warder, was (crying ?) (out ?) (yowling ?) & talking. He said this man jumped up & I did not know what he was (?) (?).

Cross-examined by Lee. I heard him spit on his hand. I could not see.

Cross-examined by me [Justice Manning]. The long thing was in me for about 10 minutes. I jumped up as soon as I could.

I did not give him time to put his long thing in, only to put it in a little. While he was spitting on his hand & rubbing me & (?) up I gammoned to be asleep. When he put it in I jumped up as quick as I could.

Cross-examined by Sly. Do you know what will happen to him? Do you know he will be hanged. He ought to be hanged. He deserves it.

Cross-examined by me. I did not know the prisoner – it was the first time [I] saw him. I had been in another cell before but this night I was put in with him. I had been in the same cell with Harry Willett – & in another cell

& they shifted me.

Henry Willett. Prisoner from Gaol (No. 4). I was in this gaol awaiting trial. The prisoner & Tommy & I were sleeping in the same cell – in February. Prisoner in centre. Locked up at 5 o’clock.

Warm weather – all slept in our shirts. I slept outside my blanket. We undressed at about 7. I went to sleep at 9 – I heard the clock strike 9 – or 8 & I went to sleep a little after.

I don’t recollect the last thing the prisoner said to me. Don’t recollect his saying are you asleep. After I was asleep, I was awaked by Tommy Dodd calling Harry – loud. I saw nothing. I asked him what was the matter. He called out for warder. I asked him what’s the

matter & he said strike a light – no light struck. Then I heard blows & they tussled on floor.

He said the prisoner Connelly was trying to have connection with him – the exact words, trying to ride him – said this once or twice. Prisoner denied it. I can’t exactly say what he said.

Warder Costley call came. Tommy called out open the door, the prisoner Connelly is trying to ride me. Warder then outside. Opened the door. Prisoner sitting on his bed, making a noise. Can’t say what way. Spoke out in a loud voice.

When door opened, Tommy wanted the warder to let him out. He would not. Prisoner Connelly said he wanted to see the Doctor to examine him on this charge. No Doctor came. We were left

there till the morning. When Tommy said first that the prisoner was trying to ride him, he denied it. Can’t give his words.

I was examined immediately after this before the magistrates. I don’t recollect saying that when the black made his complaint, prisoner never said a word.

Cross-examined by Sly. I am sure I heard the words “The man is trying to ride me” before the scuffle. I could not have been asleep more than 10 minutes – I heard nothing before I heard the cry. The prisoner was making a noise after warder came in & opened the door. Was talking very loud. Can’t say what he said. Tommy said he wanted to be shifted out of cell because the prisoner was riding him. The warder

he was opening the door. He half opened the door. I can’t say whether the warder could hear. I should think he could hear, because the black boy was asking to be shifted to another cell.

I can’t say whether the warder asked for the Doctor to be sent for. Prisoner did deny. I think at that time by the sound of his voice that Tommy was standing up. I think he must have heard prisoner deny.

Cross-examined by me. The blows came (firstly ?) (?) (after ?) the call to me. I asked him what was the matter before the blows. I can’t say whether Mr Fitzgerald came. The door only half opened & I was behind – I can’t say

that Tommy asked for him. The warder did not go away & come again.

Charles Costley. Warder Yass Gaol. 25th February I was on duty. I heard noise in No. 1 cell. I was in sentry box in yard – 20 yards off. The noise I learned was knocking at cell door and I went up & heard voices talking loudly. I asked what the row was about. The black boy said he wanted to be shifted out of the cell. I could not hear distinctly what he said. I would not open the door till Mr Fitzgerald came. He happened to come when noise [sentence ends]. He came up. I could not hear what the black said because Connelly was talking loudly & somebody making a noise in the opposite cell – calling out

that Connelly was choking the black boy. Tommy may have said that the man was riding him. When Mr Fitzgerald came, the black said he wanted to be shifted but he told me to lock the door & come away. We both went down.

The prisoner insisted upon a Doctor being sent for – on account of the black boy making a charge in the cell for doing something in the cell – I don’t know what. Mr Fitzgerald over me & I did not enquire what.

Cross-examined by Sly. I pushed the door open as wide as I could with the 3 men in it. Half open – more than half open. Connelly was talking in a very loud tone in a sort of passion.

I did not see him. No light except the light in the passage. I did not walk in & don’t know whether he was standing or sitting. The black boy was standing at the door.

Cross-examined by Lee. This sort of thing does not happen continually. The first time. Every cell was full.

Cross-examined by Juror. Mr Fitzgerald had as good an opportunity as I of hearing that the prisoner wanted the Doctor.

By the Juror: “That will do.”

Mr [James] Fitzgerald. Gaoler. 25th February my attention called by noise in No. 1 cell. Loud talking. Warder said some row in the ward. I went & asked what it

was about. Willett spoke first. Tommy said that the prisoner Connelly had been riding him. He did not say to me he wanted to be shifted out of the cell. Connelly said he wanted to see the Doctor. Did not say what for. I guessed. I said I would not send for the Doctor. Then I gave Willett charge of the others, & told him to see that Connelly did not offend (?) during the night. The cells were all full.

Cross-examined by Juror. I am a medical man. Prisoner did not ask me to examine the black boy.

Cross-examined by Lee. If the penis (was ?) (immediately ?) removed there would be no means of detection

by examination & there would be no semen. That’s why I said I would not send for the Doctor.

Cross-examined by me. The gaol was overcrowded. I had two sick men who ought to have been alone, but were in cells with other men.

Cross-examined by Sly. The prisoner is in (gaol ?) (15 ?) months for doing grievous bodily harm. I know of no other imprisonment.

& by Lee. He was sent from Wentworth & described as having marks of flogging. ⁴ He is an old soldier.

Sly to the Jury.

Mr Lee did not reply.

The Jury after my summing up retired at 1.30.
Returned at 2.15.

Guilty of assault with intent.

Sentence 2 years HL in

Prisoner said he was close on to 70 years – & that the case was put up by Merrett & (?). That he had been out 45 years, Came out as a soldier. Was discharged & never in gaol until for the assault for which he is now in custody.

That he has asked to get shifted because of the conduct of the

men towards him.

Mr Lee intimating that he meant to have the prisoner tried upon another charge. I remanded him for sentence.

See post p. 77

2 years hard labour Berrima Gaol. Recommendation to be kept apart at night.

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The Yass Courier, Fri 5 Apr 1878 ⁵

LOCAL AND GENERAL.
————
YASS ASSIZES.
TUESDAY, APRIL 2 [1878]
Before his Honor Sir W Manning.

Mr E Lee prosecuted for the Crown, and the other legal gentlemen in attendanc [sic] during the day were Messrs JH Want and RM Sly, barristers; and Messrs Wilkinson and Iceton, solicitors.
…

THURSDAY, APRIL 4.

SODOMY

Denis Connolly, a prisoner, was placed in the dock to answer the charge of having committed the above offence in the Yass gaol on the 25th February last.

Prisoner pleaded not guilty, and was undefended.

His Honor then assigned to prisoner Mr RM Sly as counsel, and requested Mr Iceton to assist him.

The hearing of the case was then postponed to allow counsel to consult with the prisoner.
…

SODOMY.

The case of sodomy against Denis Connelly was then proceeded with.

After the evidence was taken, Mr Sly addressed the jury.

His Honor summed up the evidence, and complimented Mr Sly for the manner in which he conducted the defence, and said he was much obliged both to Mr Sly and Mr Iceton for watching the case for the prisoner.

The jury retired at twenty-five minutes past one o’clock, and returned into court at ten minutes past two o’clock with a verdict of attempting to commit the offence.

The Crown Prosecutor informed his Honor that there was a second case against the prisoner of attempting the same crime with another person.

Prisoner having been duly cautioned, said he was seventy years of age, and was forty-five years in the colony. He had been a soldier, and was never in gaol in his life, though in the army he had been tried by a court martial. He considered it was not fair to him to be convicted on the evidence of such men as McKenzie (who was sentenced yesterday for the murder of his wife) and a blackfellow.

The Crown Prosecutor stated to his Honor that he would put the prisoner on his trial for the second charge [see below].

His Honor then said he would not pass sentence until the second case was heard.
…
The court rose at ten minutes past four o’clock until ten o’clock this [5 April] morning.

The following are the prisoners remaining for trial:–
Denis Connelly, attempt to commit an unnatural offence.
Henry Willett, larceny.
William Vaugn, larceny

Dennis Connolly, 1878–II

Depositions for Dennis Connolly 5 Apr 1878 Yass trial ⁶

Memorandum of Depositions Transmitted, 25 Feb 1878

G. 66 Police Office, Yass
Memorandum of Depositions Transmitted 25^th February 1878
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
Dennis Connolly	Attempt to Commit Sodomy	23^rd February 1878	Alfred Merritt *	* Being prisoners were not bound over by Recognizance
			Stewart McKenzie *
			James Fitzgerald
			Patrick Brennan
To the Honorable, the Attorney General, Sydney [Signed] Leopold Yates, [Yass] PM

~ ~ ~ ~ ~

(M., 11 & 12 Vic., Cap. 42.)

Depositions of Witnesses.

New South Wales, Yass
TO WIT. }

The examination of Alfred Merritt a confinee in Her Majesty’ Gaol at Yass in the Colony of New South Wales, Stewart McKenzie a confinee in Her Majesty’s Gaol at Yass aforesaid, James Fitzgerald Gaoler of Her Majesty’s Gaol at Yass aforesaid sand Patrick Brennan Sub-Inspector of Police at Yass, in the said Colony, taken on oath, this 23rd day of February in the year of Our Lord one thousand eight hundred and seventy eight at Yass 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 Dennis Connolly who is charged this day before me, that he the said Dennis Connolly, on the 20th day of February Instant at Yass in the said Colony, did assault one Alfred Merritt aforesaid with intent to commit an unnatural offence against the form of the Statute in which case made and provided.

~ ~ ~ ~ ~

Her Majesty’s Gaol Yass

23rd February 1878

Dennis Connolly a confinee

Unnatural Offence Assault with intent to Commit

This deponent Alfred Merritt on oath saith:– I am at present a prisoner in Yass Gaol serving sentence of 18 months for horse stealing. I remember Monday night last the 20th Inst. I slept in No. 1 cell on that night. I went to bed just after sundown. I had a bed of my own. The prisoner Dennis Connolly now before the court, Stewart McKenzie and another prisoner whose name is Willett slept in the same cell with me. Each of the prisoners had separate beds, my bed was placed between the prisoner and Willett’s. There might have been a space of 8 or 9 inches between the beds. I fell asleep about 9 o’clock. Before I fell asleep I was lying on my side, with my back towards the prisoner. I was undressed. I had nothing on but a shirt. The prisoner was also undressed. I was awoke by feeling the prisoner’s hand being across my breast, his other hand was on the lower part of my back, his flesh against mine. Prisoners privates were pushed close

to me and he was working with his private as though he were with a woman. I then threw prisoner’s hands off me and shoved him completely away. I put my hand down to my person and found my seat wet with a slimy moisture. When I shoved prisoner away from me he called me a sulky bugger. Stewart McKenzie woke up and asked me what was the matter. This was after I discovered the moisture on my person. The prisoner heard this. This was about ½ past 10 o’clock. I told McKenzie that the prisoner meaning Connolly was trying to commit sodomy on me. McKenzie replied that I had better report in the morning otherwise he would. I reported next morning to the Gaoler. Prisoner made no remark when I told McKenzie. There was no part of the prisoner’s private had penetrated my body, but he was close to my flesh. I gave the prisoner no inducement to do this, not the slightest. The prisoner had left his own bed and had got into mine. When I threw the prisoner away from me he rolled over into his own bed. When I woke the prisoner’s person was as tight or close between my thighs as he could get. There were 8 or 9 inches between the beds. When I found what had taken place I made a complaint while I was making a row about it.

McKenzie woke up. I said to McKenzie in a loud tone that you were trying to commit sodomy on me. There was sparking between us in the yard on the same evening, also in the cell – it was only for a lark. McKenzie did not sit down on my bed that evening with his clothes off. You were not complaining of being cramped up for want of room to stretch your legs. I reported about 12 o’clock to the officer, and in the evening I reported it to the Gaoler. I did not tell the warder (Costillo ?) directly I went down into the yard. I have made a remark that I would get shifted; that I would not serve the 18 months in Yass Gaol.

Brennan: When I first saw the gaoler in the morning I asked that I might be shifted out from the cell I was occupying. I told the gaoler the reason I wanted to leave the cell – previous to what I am complain [sic] of I had not the slightest animosity towards the prisoner. I had reasons for wishing to leave Yass Gaol. My reasons were that I might go to a gaol where I could learn a trade.

Bench: I can swear positively that the prisoner now before the court was the man who committed the offence. He was the only one behind me, the other 2 prisoners were sleeping in front of me. I was (17 ?)

years of age on last Christmas morning.

Prisoner: There had been previously a sly religious controversy between yourself and McKenzie. This happened a week ago. There was nothing to provoke any ill feeling.

Bench: On the night in question it was bright moonlight and the light shone into the cell. Even if the night had been dark, I could have identified the prisoner by his voice when he called me a sulky bugger.

[Signed] Alfred (his X mark) Merritt. Sworn before me this 23rd day of February 1878.

[Signed] Leopold Yates, PM.

And this deponent Stewart McKenzie on oath saith, I am at present a prisoner awaiting trial in Yass Gaol. I remember Wednesday night last the 20th inst. I was sleeping in No. 1 Cell, Merritt the prisoner Connolly and another man whose name I do not know occupied the same cell. We each occupied separate beds. The beds were close together, a few inches only between each bed. The beds were made up on the ground, I was lying next [to] the door, Merritt was lying next to prisoner. The order in which we were lying was thus: I was next the door, the man whose name I do not know was lying next to me, and then Merritt and then the prisoner next to him. These were all who were in the cell. I fell asleep. I heard a row and woke up. I heard prisoner and Merritt jarring about something. I asked what was the matter when I woke. Merritt replied that the prisoner Connolly wanted to commit sodomy on him. I said that he was a scoundrel, meaning Connolly. I said that I would report it in the morning.

Bench: Prisoner replied it was false when Merritt told me that he, prisoner, had attempted to commit sodomy. I have not ill feeling or animosity towards the prisoner. He is quite a stranger to me.

I have known the prisoner in the yard for 6 weeks.

Brennan: I do not think the other prisoner Willett heard the row. I believe he was asleep all the time.

Prisoner: I did not hear you say to Merritt on the night in question in the cell that he, Merritt, wanted to have a row with you, by the manner in which he was sparring with you in the yard – about a fortnight ago a simple difference of opinion about religion occurred between yourself and I. I have not given a thought to it since.

[Signed] Stewart McKenzie.

Sworn before me this 23rd February 1878.
[Signed] Leopold Yates, PM.

And this deponent James Fitzgerald on oath saith, I am Gaoler of Her Majesty’s Gaol Yass. I know the prisoner Connolly, also Merritt. The latter made a statement to me on the morning of the 21st inst about 11 o’clock concerning the prisoner Connolly. I had seem Merritt previously that morning in consequence of that statement the present proceedings are now taken.

To prisoner: I could not tell on what day Merritt and McKenzie were shifted out of No. 1 cell. I believe they were shifted when Merritt made the report to me. I immediately shifted him from the cell.

[Signed] James Fitzgerald.

Sworn before me this 23rd day of February 1878.
[Signed] Leopold Yates, PM.

And this deponent Patrick Brennan on oath saith, I am Sub-Inspector of Police stationed at Yass. I this morning in the Yass Gaol charged the prisoner Connolly with attempting to commit an unnatural offence on the person of a fellow prisoner named Merritt. Prisoner Connolly made no reply to the charge.

Prisoner has no question to put to witness:

[Signed] P Brennan.

Sworn before me this 23rd day of February 1878.
[Signed] Leopold Yates, PM.

(N., 11 & 12 Vic., Cap. 42.)

Statement of the Accused.

New South Wales, Yass
TO WIT. }

Dennis Connolly stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 23rd day of February in the year of Our Lord one thousand eight hundred and seventy eight for that he, the said Dennis Connolly on the 20th day of February instant at Yass, in the said Colony, did assault one Alfred Merritt with intent to commit an unnatural offence and the examination of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the accused having been caused to be read to him by me, the said Justice (by/or) before whom such examination has been so completed; and I, the said Justice, having also stated to the accused and given him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, 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 Dennis Connolly and the witnesses for the prosecution Patrick Brennan, Henry Willett, Stewart McKenzie, Alfred Merritt, James Fitzgerald being severally examined in his presence, the said Dennis Connolly 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 Dennis Connolly says as follows:– “I totally deny the charge. I never thought such a thing, such a thought never entered my breast. I wish to call a witness.” Taken before me, at Yass, in the said Colony, the day and year first abovementioned.

[Signed] Leopold Yates, PM.

Defence

And this Deponent Henry Willett on oath saith, I am a prisoner in Yass Gaol awaiting trial on a charge of larceny. I remember the night of the 20th inst. I heard no row. I did not hear McKenzie asking Merritt what was the matter, or any other question. I was lying between McKenzie and Merritt. There were about 6 inches between the beds. I am a very heavy sleeper. I heard no disturbance during the night and do not know what did occur.

Brennan: There may have been words passed between the prisoners. I have not heard of any charge being made against Connolly until I came to now – I might wake once or twice during a night; I sleep very soundly. It takes a great deal to wake me up once going to sleep. I am aware now for the first time of the charge against prisoner Connolly, no-one has told me before this.

To prisoner: The Gaoler has not spoken to me about the present matter.

[Signed] Henry (his X mark) Willett.

Sworn before me this 23rd day of February 1878.
[Signed] Leopold Yates, PM.

Prisoner Dennis Connolly stands committed to take his trial at the next Circuit Court to be holden at Yass the 1st day of April next.

[Signed] Leopold Yates, PM.

~ ~ ~ ~ ~

(O. 1, 11 & 12 Vic., Cap. 42.)

Recognizance to Give Evidence

New South Wales, Yass
TO WIT. }

Be it remembered, that on the 23rd day of February in the year of Our Lord one thousand eight hundred and seventy eight Patrick Brennan a Sub-Inspector of the Police Force of Yass, in the Colony of New South Wales, and James Fitzgerald of Yass Gaoler, of Her Majesty’s Gaol in the said Colony, personally came before the undersigned one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledge themselves to owe our Sovereign Lady the Queen the sum of

FORTY POUNDS EACH,

of good and lawful money of Great Britain, to be made and levied on their Goods and Chattels, Lands and Tenements, to the use of our said Lady the Queen, her Heirs and Successors, if they the said before mentioned persons shall fail in the conditions endorsed. Taken and acknowledged, the day and year first above mentioned, at Yass in the said Colony, before me,

[Signed] Leopold Yates, PM.

The condition of the within written Recognizance is such that whereas Dennis Connolly who was this day charged before Leopold Yates Esquire, one of Her Majesty’s Justices of the Peace for the said Colony, with attempting to commit sodomy if therefore, they the before mentioned persons shall appear at the next Court of Assizes to be holden at Yass, in and for the Colony of New South Wales, on the 1st day of April next, at 9 of the clock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said Dennis Connolly for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Dennis Connolly then the said Recognizance to be void, or else to stand in full force and virtue.

[Signed] Leopold Yates, JP.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

Circuit Court Yass
April 1st 1878
No. 45
Depositions.
Regina No. 6.
v.
Dennis Connolly
Attempting to commit Sodomy
Committed at Gaol, Yass
on 22rd February 1878

~ ~ ~ ~ ~

Attempting to commit Sodomy

4/3/78
[Initialled] WJF [William John Foster] AG

~ ~ ~ ~ ~

Justice WM Manning’s Notebook ⁷

Yass April 5th 1878
No. 12 Regina v. Dennis Connolly

Regina v.
Dennis Connolly	}	Attempt to commit sodomy on one Alfred Merritt

Alfred Merritt. In Yass gaol under 18 months sentence. 20th February last I was in cell with 3 others, Stewart MacKenzie, Dennis Connolly the prisoner & Henry Willett.

I went to bed about ½ past 7, just after sundown. I went to sleep, I daresay about 9. Prisoner slept on one side & H Willett on the other. We had all turned in at about the same time.

I was awoke, I believe between 10 and 11 o’clock. I found prisoner with his right hand

over my left side and with his penis between the thick of my thighs & working at me as with a female. I hit him backward with my hand & threw him back and he called me a filthy bugger. Mackenzie woke up & asked what was the matter. I said Dennis Conolly was trying to commit sodomy with me. MacKenzie said he was a brute & if I did not report it in the morning, he should. I did not hear the prisoner deny it or make any remark.

I reported it in the morning to the Gaoler at about 11 o’clock & he was brought before the magistrates & committed.

He did not penetrate me. He was close to my vent, in the thick of my backside. There was some wet on me. It seemed slimy. I don’t know what it was. It was where

his penis was.

Cross-examined by prisoner. It was over my right side your arm was – I made a mistake.

I don’t recollect any conversation before we went to sleep about a man’s forehead about (Prisoner says “about his physiognomy” but you are illiterate & don’t understand that).

I don’t recollect any thing being said, that a man with a low forehead would do any thing.

[Judge Manning] Stewart MacKenzie called. I said I thought it not desirable to call in a man with a heavy sentence by this Court. ⁸

James Fitzgerald. Gaoler. This prisoner and Merritt were in

gaol together. Complaint made to me by Merritt, in consequence of which I shifted him & instituted proceedings.

Cross-examined by prisoner. You came out of the cells at 7. Merritt did not report you then. You had asked me before to let you have a cell to yourself & I did when I could. You also asked to be removed to another gaol, but the Attorney General refused because no sufficient reasons were assigned. I locked you up for insubordination on two occasions. You were generally disliked amongst the men. I advised you to make yourself agreeable to the men. I don’t recollect your saying it was impossible for you to be on good terms with such men.

Sub-inspector P Brennan. I charged prisoner on 23rd with an attempt to commit an unnatural offence on Alfred Merritt. He did not say a word. I had him called up from the bottom of the yard. He was by (himself ?), nothing to prevent free speech. There may have been a warder at hand. It was the same day on which he was committed.

Cross-examined by prisoner. I had been away in bush till that morning & when I heard of this matter I went & charged you. I can’t say whether the charge would prevent your speaking. I should knock a man down myself who charged me with such an offence – but men’s views differ. I think the warder was at a distance.

Charles Costley. Warder called by prisoner. On the 21st I was on your post. Merritt came up to me & said he wanted to be shifted out of the cell – that Connolly wanted to take liberties with him. I said I could not, but referred him to Mr Fitzgerald.

It was about the middle of the day.

[Judge Manning] I had said that if the jury thought it necessary to have MacKenzie he should be sent for.

At first the reply of a juror apparently speaking for all was that he was not required. But now one juryman said that four of the jury did require to have him in.

Mr Fitzgerald. Merritt told me

at about 11.

Charles Costley. Merritt might have complained to Mr Fitzgerald earlier in the day. He was there when the men came down first from the cells. You never kept aloof from the other prisoners during a part of your time.

Stewart MacKenzie. I was a prisoner awaiting trial on 20th February – with 3 others in the cell. Went to sleep at about 9 or 10. Was awoke by hearing a row – a few words. I heard Merritt & Connolly speaking & I asked what was the row about. Merritt told me that Connolly wanted to commit sodomy with him. Connolly made answer & said it was false. The words continued.

They [were] calling one another (names ?). I said it was a serious offence to charge any man with if it was false. He said it was true. I said if he did not report it in the morning, I should.

I have no ill-feeling against the prisoner. Did not know him till I met him in the gaol.

Cross-examined by prisoner. I don’t remember any conversation about men being known by their foreheads. I don’t recollect asking you what your opinion was of Merritt’s forehead. I had taken very little notice of you. There was an ill-feeling against prisoner on account of this matter. I don’t myself know of any previous ill-feeling. I had not been long in gaol.

If I had wished I could have

made the report directly I came down, but it was not my business. I left that to Merritt. I had told him if he did not, I would.

Prisoner states that there was an ill-feeling against him, because he would not consort with the other prisoners – that the charge was made in consequence – that it was impossible to meet it – says Merritt liar &c, & robbed his own father.

That he was soldier – nearly 50 years in the Colony – never sentenced except by a court martial, until the case for which he is now in. Puts it that grossly improbable that after this first accusation & committal he should do the same thing 2 days after as charged with the black man – common sense & self preservation would prevent it.

I summed up, pointing out on the one hand, the facility with which such a charge may be made & the difficulty of repelling it, & the obligation to be careful against (requesting.?) (more ?) testimony &c &c &c.

The jury retired for about half an hour.

Verdict guilty.

1 years Hard Labour Berrima Gaol after expiration of first sentence. Not to be in same cell with other prisoners. ⁹

I shall cause enquiry to be made about the Wentworth case spoken of by prisoner.

Mr Fitzgerald very insubordinate to myself & visiting (justice ?). Preferred to work (twice ?) to attend (religious ?) (intention ?) once.

Have not the slightest reason to believe there was such a feeling as would have induced false charges. I was often asked to shift (a ?) (man ?) – without reason assigned. I suppose they did not like to mention.

~ ~ ~ ~ ~

The Yass Courier, Tue 9 Apr 1878 ¹⁰

LOCAL AND GENERAL.
————
YASS ASSIZES.
Friday April 5 [1878].
Before his Honor Sir W Manning.

ATTEMPT TO COMMIT AN UNNATURAL OFFENCE

Denis Connelly was placed in the dock to answer the charge of having, on the 20th February, in the Yass Gaol, attempted to commit an unnatural offence.

Prisoner pleaded not guilty, and was undefended.

The jury returned a verdict of guilty against the prisoner.

The gaoler (Mr Fitzgerald) gave prisoner a very bad character while he was in gaol.

Prisoner said he belonged to the 4th regiment, and received corporal punishment while he was a soldier. He was discharged 27 years ago, and was never in any court since.

His Honor sentenced prisoner for the first [see above] offence to two year hard labour in Berrima gaol, and for the second offence he sentenced him to twelve months in Berrima gaol, the sentences to be cumulative.

¹ SRNSW: NRS880, [9/6635] , Supreme Court, Papers and depositions, Yass, 1878, No. 44. Emphasis added.

² SRNSW: NRS7343, [2/6026] , Judiciary, WM Manning, J. Notebooks Circuit Courts, 1872-80, pp. 36-54. Emphasis added.

³ Mn: Speaks English well

⁴ Mn: Prisoner says he was flogged in the army

⁵ The Yass Courier, Fri 5 Apr 1878, pp. 2-3. Emphasis added.

⁶ SRNSW: NRS880, [9/6635] , Supreme Court, Papers and depositions, Yass, 1878, No. 45.

⁷ SRNSW: NRS7343, [2/6026] , Judiciary, WM Manning, J. Notebooks Circuit Courts, 1872-80, pp. 68-77. Emphasis added.

⁸ Mn: NB. This being a second charge after a first conviction, see ante

⁹ Mn: Sentence 18 months 4th August 1877

¹⁰ The Yass Courier, Tue 9 Apr 1878, p. 2.

Sodomy