The Singleton Argus and Upper Hunter General Advocate, Wed 20 Aug 1879 1
SCANDALOUS AGRARIAN
OUTRAGE.
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INCENDIARISM AT TENTERFIELD.
FOR the past few months this district has attained a rather unenviable notoriety for repeated acts of incendiarism, there having been no less than four during the past eight months. The fire at Barney Downs Station in December last, and for which a young man named Driscoll was convicted at the last District Court, will be fresh in the recollection of our readers; while since then, and only a few weeks ago, the large hay and produce sheds at Clifton and Maryland Stations were entirely destroyed, both of which it is strongly suspected were the work of some malicious persons at present unknown. This week we have to record another act of a like serious nature, which has been perpetrated on the property of Mr EW Watson, of Bemerton Farm, about four miles from Tenterfield, in the total destruction of a barn and its contents on Saturday night last. Fortunately, for the safety of the property of others, the scoundrel, who committed this deed of wanton destruction, is in custody, and will, it is to be hoped, be prevented for some time from injuring others in a like manner. The conduct of the incendiary is in this case greatly aggravated by the abominable statements he has made respecting his employer’s wife, about which there is not one word of truth. The loss is a severe one for Mr Watson, and consists of a barn, 36 feet x 16 feet, with a skillion attached 8 feet wide, and roofed with corrugated iron, which cost about £70. The contents consisted of wheat, and other produce, which together with harness, tools, and farming implements, is estimated at £100, making a total of £170. Much sympathy is felt for Mr Watson under the circumstances, especially as this is the second time he has suffered from a similar calamity, having about eight years ago had his house burnt down, by which he lost nearly £400 worth of property.—Tenterfield Star.
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The Singleton Argus and Upper Hunter General Advocate, Wed 8 Oct 1879 2
MURRURUNDI POLICE COURT.
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THURSDAY, OCTOBER 2nd, 1879.
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(Before Mr GR Evans, JP.)
INDECENT ASSAULT.
Timothy Driscoll was brought up, charged on suspicion with attempting to commit an indecent assault upon a female child named Peri Cairns, only two years and a half old, at Black Creek.
The case was remanded until Tuesday, the 7th October. Bail refused.
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The Singleton Argus and Upper Hunter General Advocate, Wed 15 Oct 1879 3
MURRURUNDI POLICE COURT.
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TUESDAY, OCTOBER 7th, 1879.
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(Before Mr TB Boyce, JP.)
INDECENT ASSAULT.
Timothy Driscoll, in custody, on remand from the previous Thursday, was charged with attempting to commit an indecent assault on Peri Cairns, at Yarraman.
Mr JP Abbott appeared for the defence.
Sergeant Abbott applied for a further remand until Monday next, as he had been unable to secure the attendance of the necessary witnesses up to that time.
Prisoner was remanded until Monday next, at 10 am.
UNNATURAL OFFENCE.
Timothy Driscoll was further charged with having, on the night of the 29th or morning of the 30th June last, at Yarraman, committed an unnatural offence in connection with James Lang.
Mr JP Abbott appeared for the defence.
Prisoner was remanded until Monday morning next, at 10 o’clock.
James Lang, in custody, was charged on suspicion with being an accessory to an unnatural offence committed by Timothy Driscoll, at Yarraman.
Mr JP Abbott appeared for the defence.
Sergeant Abbott deposed to arresting prisoner, and asked for a remand.
Prisoner was remanded until Monday next, at 10 am.
Mr JP Abbott applied for bail, which was refused.
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The Singleton Argus and Upper Hunter General Advocate, Wed 22 Oct 1879 4
MURRURUNDI POLICE COURT.
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MONDAY, 18th OCTOBER, 1879.
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(Before Mr TB Boyce, JP.)
INDECENT ASSAULT.
Timothy Driscoll, on remand, in custody, was brought up charged on suspicion with attempting to commit an indecent assault upon Peri Caines, [sic] a child about two and a half years old, at Yarraman.
Mr JP Abbott appeared for the defence.
The arresting constable’s evidence was read over.
George Cook deposed that he was a drover residing at Yarraman Creek; he heard of something having taken place there, and on the day that it was reported to have taken place he was at Yarraman Station in the morning; he saw the prisoner there; he was the worse for liquor when witness saw him; he saw him at the gate of the head station; prisoner was talking to the children there; he had the little girl, Peri Caines, by the hand; Miss Cobham asked him to cut some wood, and he went to the wood heap for that purpose; the last time he saw the prisoner he was between the wood heap and the house, and the child was then with him.
By Mr Abbott: The wood heap was about ten yards from the house; he had seen the children constantly with Driscoll; he was always about the house cutting wood.
Alexander Pyke deposed that he was a storekeeper residing at Yarraman; he remembered hearing of an assault being committed by the prisoner on Peri Caines; this was about three or four weeks ago, to the best of his recollection; on the day in question he was going over from his store to the head station; he had got half way between the hut that used to be called Tim’s, when he met Miss Cobham running out; she asked him something, and just then he heard a child “sing” out; witness was at the back of the hut, and he turned round when he heard the child’s voice, to go back to the hut; just then he saw the prisoner bring the child, Peri Caines, round from the front of the hut; he took the child up in his arms when he saw witness and Miss Cobham there; Miss Cobham took the child from him, and witness went back to the store; that was all he knew; the child was crying to the best of his belief; from the position he was in with regard to the hut, the prisoner could not have brought the child from anywhere else but the hut; when passing the hut he heard a noise inside.
By Mr Abbott: The hut is about thirty yards from the woolshed; it is about 150 yards from the house; I did not notice Driscoll when he came round from the hut as to the state of his clothes; the time was between half-past ten and twelve; the child appeared to be crying when the prisoner brought her out; I did not notice any other children about; the prisoner appeared to be under the influence of drink.
By the Bench: I could not say what kind of noise it was I heard when passing the hut; I was about thirty yards away from the hut at the time; if I had heard a child “cry” I would have gone over.
Mary Maud Cobham deposed that she was living at the Yarraman station; she knew the prisoner; on Saturday morning, the 13th September, she went out to look for Peri Caines; Miss Blacker, a young lady staying at the station, said she saw Driscoll leading the child towards the hut known as Tim’s hut; she walked down towards the hut; she met Mr Pyke, a storekeeper at Yarraman; she spoke to him, and then she heard screams from the hut; witness got within two yards of the hut, when she saw the prisoner bring the child out of the hut from the front; Mr Pyke and herself were at the back; the child appeared as if she could not walk, and Tim picked her up and carried her to the house; she examined the child in consequence of a complaint made to her by the child. (The evidence was here unfit for publication.) The child was ill for two or three days; it was fully two hours before the child could walk about after she was brought up from the hut; the child’s mother came home the following evening; during her absence she had charge of the child; when the mother came home witness told her what had taken place; it was not a usual thing for the prisoner to take the child away like that; she had never known him to do it before; he always appeared very kind to the children about the house, but never took any away by themselves; the prisoner seemed to be slightly intoxicated, but appeared to know what he was doing; she did not see George Cook there that morning; she had not seen the prisoner that morning before with the children until she saw him at the hut with the child; she had seen him, but not with the children.
By Mr Abbott: I did not see the prisoner with the children that morning at the back of the house, nor did I see George Cook there; the wood heap is about 250 yards from the hut, and close to the back gate of the head station; I told the prisoner to go and cut wood that morning; the children were not with him then; if Cook has sworn that they were, he has sworn what is not true; the screams I heard were distinct, and easily recognised as those of a child; Mr Pyke had as good an opportunity of hearing the screams as I had; from the time I first heard the screams, till I saw Tim Driscoll with the child, about seven minutes elapsed, and I heard no screams before I met Mr Pyke; when I met Mr Pyke we were facing in different directions, I looking towards the hut and he towards the homestead; when the scream was heard it attracted Mr Pyke’s attention, and we both looked the same way; I am positive that three or four minutes elapsed after I heard the screams until I saw the prisoner with the child; in about three or four minutes after I saw the prisoner coming round from the front of the hut; when I saw him first he and the child were both walking; I then went towards the child, and Mr Pyke towards the store; Mr Pyke was about one hundred and fifty yards from the prisoner before he turned to go back to the store; the prisoner did not continue to lead the child until I got up to him; this was about a minute or two after Mr Pyke went away; I did not take the child from Tim Driscoll; he carried her to the homestead; when the child saw me it did not stop crying; it cried all the way to the homestead; the child is about two years and three months old; when Mr Pyke was talking to me I did not see the child; Miss Blacker was not with me when I made the examination; there was no other female in the house beside myself except Miss Blacker; I examined the child immediately after taking her home; I had never examined the child before; I had never examined a child before under similar circumstances. (The evidence was here unfit for publication.) The child was never examined by any medical man as I am aware of; I do not know anything about any diseases of children of this age, nor that the child was suffering from any. (The evidence was here unfit to publish.) I could not say that the marks I have described were not occasioned by falls or by the child riding across a stick, as children are in the habit of doing.
Cross-examined by Sergeant Abbott: I think it was about 300 yards from the homestead to Tim’s hut; I am not a judge of distance; I told Tim more than once that morning to go and cut wood; Mr Pyke and I were about 200 yards from the hut when I heard the screams; when I got up to Tim and the child, Mr Pyke was past the hut with his back towards us; the child had a piece of bread and jam in its hand; I have been in the habit of washing and dressing her, and I have never seen her in the same state; it was about an hour before that that I had seen the child, before I saw her coming from Tim’s hut; she then appeared all right; playing about; she had not been away from the place at all until I found her down there.
By the Bench: I saw the child about an hour before on the back verandah; I had been in the habit of washing the child during the absence of her mother, and I had never noticed any marks on her before; there were no marks on her that morning when I dressed her; if there had been I must have seen them; she never complained to me before of any pains about her body. (Evidence unfit to publish.) I did not charge the prisoner with any offence myself, nor did anyone else in my presence; the prisoner offered no explanation; I saw no marks in any other part of the child’s body; as soon as I heard the screams I went towards the hut, and the prisoner came out of it; I was standing about two hundred or two hundred and fifty yards away from the hut with Mr Pyke when we heard the screams, and as I approached the prisoner came out; it was not possible for Cook to have heard me tell prisoner to cut wood; he may have been in the house, but I did not see him; he was not in the kitchen; I told the prisoner more than once that morning to cut wood.
Emily Blacker deposed that she lived at Yarraman Creek; she remembered hearing of something having taken place at Yarraman; this was about a month ago; she did not see the prisoner on the morning referred to, to her recollection, about the station.
By the Bench: I saw the child that morning after I heard that the offence was committed; the child appeared to be as well immediately after I heard the offence was committed as before, and was quite able to walk; if Miss Cobham has sworn that the child was unable to walk, I do not know whether she has sworn the truth or not; when she brought the child into the room the child was walking, and walked about the rest of the day; I do not know how long after the offence was said to have been committed that she was brought into the room.
By Mr JP Abbott: This was said to have occurred on a Saturday, and I remained there until the Monday following; Miss Cobham never asked me to examine the child at all, nor did she shew me any marks on the child; nor did she tell me there were any marks on the child; she told me that Tim Driscoll had committed an assault on the child; she told me this when she brought the child into the dining-room; I did not notice whether the child was crying or not, because she is a child that is always crying; after that the child played about all day as usual, also on Sunday and Monday; when I left the child was up, and I never heard her complain; she was playing with the other children; Mrs Caines returned home on Sunday night.
Emily Caines deposed to living at Yarraman home station; she was the mother of Peri Caines; she returned home on the 14th September; that was Sunday; Miss Cobham told her something on Monday morning; from what she told her witness examined the child; she could not see any marks about her; the child made a complaint to her, and her limbs seemed to be stiff.
By Mr JP Abbott: I was in company with Miss Cobham on Sunday evening; she made no communication to me that night, although I saw her several times; she told me about it on Monday morning, as soon as she was up; if great violence had been used on Saturday, the marks, anyone would imagine, would have remained on the child till Monday.
By the Bench: I was speaking to Miss Cobham on Sunday night; she had not an opportunity of telling me about the assault on Sunday night, without going into a private room, as there were other people there; I spoke to the prisoner about this assault, and he denied having taken her to the hut, or having committed the offence.
William Bissett Knowles deposed that he was a legally qualified medical practitioner, residing at Murrurundi; he made an examination of the child, Peri Caines, that morning; he found no traces of marks of violence on the child, nor had any capital offence been committed on her.
By Mr JP Abbott: I have heard the examination of Miss Cobham with reference to the marks found on Peri Caines by her on Saturday, the 13th September; if such marks, as described by Miss Cobham, had been made on Saturday I think traces of them would have remained on the Monday following.
By the Bench: If great violence had been used, the marks would not have disappeared in a day or two.
The evidence was read over, and the usual caution administered to the prisoner, who replied that he had nothing to say.
The prisoner was committed to take his trial at the next Circuit Court to be held at Tamworth, or such other place as Sweetheart Attorney-General may appoint.
Mr JP Abbott applied for bail.
Bail allowed, himself in £100, and two sureties of £50 each.
SODOMY.
Timothy Driscoll and James Lang, on remand, were brought up in custody, charged with having committed sodomy, at Yarraman.
Mr JP Abbott appeared for the defence.
Sergeant Abbott deposed that about half-past 4 on Saturday the 4th instant, he, in company with constable Christain [sic], went to where Lang resided on Black Creek. He asked him if his name were Lang, and he replied yes. Witness asked him if he remembered being at Nicholl’s when something took place between him and Tim Driscoll. He said ‘No, never in my life; three troopers were here about that.’ Witness said, ‘Well, was it on the night of the sports?’ Lang said ‘no,’ and turning to constable Christian he said to him, ‘You saw me there the next day morning.’ Witness said, ‘Never mind about the date, I am going to arrest you,’ and further, ‘I now arrest you on suspicion of having allowed Tim Driscoll to commit the crime of sodomy with you at Nicholl’s, upon a date that you will be told after.’ Prisoner asked, ‘On suspicion?’ He replied, ‘Yes.’ Prisoner then said, ‘Have you any proofs?’ Witness said, ‘I think so—you will know in good time.’ He then cautioned prisoner, telling him, ‘I don’t ask you to make any statement; you may do so if you like, but anything you do say I shall make use of against you.’ Prisoner was then taken to the Black Creek lockup.
By Mr JP Abbott: On the road to Murrurundi prisoner referred to the subject by saying he was very drunk that night, and did not know what happened; I said, ‘Then you mean to say that you were so drunk that you did not know what Tim did;’ I heard at Yarraman that he was drunk that night; the prisoner also told me that three nobblers would, taken one after another, knock him over at any time, that he had a kick on the side of the eye from a horse, and he thought that was the cause of it.
Thomas Rowarth deposed to being a carrier residing at Yarraman; he remembered seeing, some time ago, the two prisoners together at Yarraman, at Nicholl’s hotel, about the first Sunday that Nicholl’s house was opened; he slept in a little store-room off the house; he woke up hearing Lang halloo out, “Oh! Oh! My God!” or something like that; when he went out the prisoners were both lying side by side quietly in the front verandah; he then went to bed again; he was again disturbed, a few minutes after, hearing the same cry from Lang; he put on his trousers and went out again. (Evidence was here unfit for publication.) He picked up a stone and knocked Tim on the side of the head, and then went inside again he heard a similar noise again, Lang again calling out near the kitchen, about eight or nine yards from where witness was sleeping, close to a brick oven at the back of the house; he heard Driscoll tell Lang, that he would give him half-a-sovereign in the morning (Evidence unfit for publication). He heard Lang then walk away to Davis’ waggon, and Tim looking about; Tim then walked round the end of his room towards the end of the house. (Evidence unfit to publish.) Next morning he saw Lang coming from Davis’ waggon to the kitchen, and said to him, “If you do not give Driscoll in charge, I will send for the police and give the two of you in charge;” Lang said, “What for;” he told him; Lang replied, “I do not recollect anything of the sort;” he had known Driscoll four or five years, perhaps longer, and could not have been mistaken as to its being him that night; he had known Lang ten or fourteen years, he could not say which—he had known him for many years—and could not be mistaken as to him; he did not hear Driscoll make any remark when he hit him with the stone; when he threw the stone he went away at once.
By Mr JP Abbott: This was on a Sunday night, but I can’t say in what month; it was the first Sunday after Nicholl opened his new house; I can’t say where I was on the Saturday that Nicholl opened his public house; I cannot say where my teams where [sic]; I can’t say whether I was absent from Nicholl’s house at all; I lived there at the time; I went to bed about 10 or 11 o’clock that night, just as the house was being shut up; as I went to bed I saw both of the prisoners under the front verandah; I cannot say whether there were any other persons there; both the prisoners seemed to be the worse for liquor; they were both pretty well drunk; Lang appeared to be helplessly drunk; he was on his feet walking about a minute or two before; I had not drunk anything that day, or for some time before; the room where I slept was about 8 yards from the back of the house; the verandah was in front of the house; I don’t think I swore in the examination-in-chief that I ‘woke’ up—I had not been asleep; at the back of the house I could hear Lang’s voice; I went out the first time without my trousers; I had no suspicion of what was going on; I heard Lang calling out, and went out to see; I went within two yards of them; I cannot say whether it was moonlight or dark the next time I went within the same distance of them; although I was within two yards of them on the second occasion, I could not say what position Lang was in. (Evidence unfit for publication.) It was about twenty yards from where I was sleeping to Davis’ waggon.
By Sergeant Abbott: About this time I was building a portion of Nicholl’s new premises; there is a lamp in front of the house; I cannot say whether it was alight; if it had been I could not say whether it would shew a light on the verandah where the men were; I did not take that much notice.
By the Bench: I don’t know what kind of a night it was—whether still or rough; (Evidence unfit for publication.) I never spoke to Driscoll about the affair the next morning.
William Nicholl deposed to being the landlord of the Yarraman Hotel, at Yarraman; he commenced business in his new house there on Saturday the 28th June last; on the Sunday night after, and he closed the house about 10 o’clock; the prisoners were there; he afterwards saw them outside on the verandah; there were nine or ten other persons about that night; he was looking through his dining-room window for nearly an hour at them, as they were fighting; Lang had his shirt off; he went to bed about 11 o’clock; his lamp was alight; it shows a light on the verandah; shortly after he went to bed he got up again, and went to the dining-room window, which looked on to the verandah; he saw the prisoner Driscoll kicking Lang; Driscoll then got up and walked away; Driscoll was lying down kicking him; Lang was also lying down; Lang paid for all he had that night; he spent a few shillings; Driscoll cashed a £2 cheque that night; Lang paid for whatever he called for; after he went to bed that night he went to sleep and did not wake until he heard Driscoll and another man sing out to him the next morning at daylight; he saw Rowarth was there in the evening, and that he did not drink any spirits; he took a glass of ginger beer or syrup, nothing more.
By Mr JP Abbott: Rowarth went out that night as well as the others, when I closed the house; the prisoner Driscoll was pretty well on that night; Lang was also pretty well on; the last time I looked out on the verandah I saw the prisoners there, but no one else; I heard others talking; if persons were outside they must have seen any one on the verandah; but not if they walked out from a light; where Rowarth was sleeping was bout 20 yards from the back, and for him to go round the end of the house it would be more; that night the verandah was open at both ends, but it is not now; I saw Lang and Driscoll the next day; Davis’ team was camped about 8 or 10 yards from the spirit-room where Rowarth was sleeping.
By the Bench: I am aware of the charge against the two prisoners; I did not see anything of such an offence; after I saw Driscoll kicking Lang I went to bed; I sleep soundly, and did not hear any expressions used between either of the prisoners; there were several partitions between where I was sleeping and the verandah; Rowarth did not tell me the next morning what he had seen during the night; I heard others talking about it, but did not charge either of the prisoners with it; I passed and spoke to Rowarth the next day; Lang had a £1 note and half-a-sovereign the next morning; Driscoll had no money the next morning until about 11 o’clock, when he came to me and said he had made “punch,” that he had found a £1 note at his feet, where he had been lying; I do not know whether Lang had that money the night before, but I heard he cashed a cheque with Mr Pyke that day; Mrs Nicholl pays Lang’s wife his daughter’s wages, who is a servant at my house.
Anthony Hile [sic–Hill] deposed that he was a carrier, living at Black Creek; at the time of the opening of Nicholl’s house he was camped at Yarraman; he was there on the Sunday after the night the house opened; amongst others he saw the two prisoners there; witness went to his dray about the middle of the night; he camped under his dray; as he was going to his dray he heard Lang singing out, ‘Oh! oh!’ he turned back and looked, and saw Driscoll and Lang near the oven; they were lying down. (Evidence unfit to publish.) He did not go very close to them; he was about eight or ten yards away from them; they were lying very close together. (Evidence unfit for publication.) Witness did not go very close; he did nothing to them. (Evidence unfit for publication.) Driscoll said to Lang, ‘I will give you another half-sovereign in the morning’; witness then went to his dray; he saw a man standing not far away, whom he believed to be Tom Rowarth; where they were lying was not the usual place for men to go and sleep; he was at the public house during the evening; he saw Driscoll and Lang there; he last saw them about ten o’clock, when the house closed; they both had liquor; they were both able to walk about.
By Mr Abbott: I was sleeping under my dray that night; I was camped about twenty yards from the public house; I have had no conversation about the case with Rowarth; I went out of the bar when Nicholl shut up, and went and sat on the end of the verandah; I was sitting there as near as I can recollect for about two hours before I went to my dray; Billy Long was with me, talking about teams; I never left the verandah till I went to my dray; Long went away to the stables to sleep; I did not take any notice of anything going on in the verandah during that time; I did not see Tim Driscoll lying on the verandah while I was there; nor did I see Driscoll kick Lang off; it might have happened while I was sitting on the verandah; I did not hear Lang sing out, ‘Oh! oh! my God,’ and he (Lang) on the verandah; I know where Nicholl’s store-room is, at the back of the house; although those words may have been heard in Mr Nicholl’s store-room by Rowarth, I may not have taken any notice of them; I don’t know whether it is likely that Rowarth at the back of the house could hear Lang singing out, and I not hear it; I and Long were busy talking; I did not see Rowarth come round in his shirt; I did not see Rowarth come round to the verandah and hit Tim Driscoll, who was said to be on the verandah, with a stone; after Mr Nicholl shut up the house I saw two men outside; I did not notice the two prisoners on the verandah; Rowarth told me that he was standing at the oven a few days ago; Rowarth did not tell me what he saw; I said to Rowarth that I saw a man standing at the oven; he said, ‘I am the man;’ when Lang and Driscoll were lying together at the oven I was about eight or nine yards off; I saw their faces, and knew their dress; I could tell the two men; Rowarth did not tell me what I have sworn that Lang said, I heard it myself; I did not know what was going on when I heard Lang crying out; everyone was talking about the case.
Sergeant Abbott stated he had another material witness, and that if the Bench were not of opinion that a prima facie case had been made out, he would ask for a remand. If a committal were decided upon, the other witness could be produced at the trial, and the witnesses examined bound over without the necessity of compelling them to attend again.
The Bench considered that a clear case had been made out, and that the evidence adduced was quite sufficient.
Mr JP Abbott: Not for the capital offence; there is no evidence of that.
The Bench thought there was, and would leave it to the Attorney-General or a jury to say if there were not.
Mr Abbott: It will prevent the prisoners from being allowed bail, and will be a great injustice to them.
The Bench considered there was a strong prima facie case of the capital offence.
Mr Abbott then recalled
Thomas Rowarth, who deposed that it was three times that he heard something between these two men going on; the first time was on the verandah, when he heard Lang sing out, ‘Oh! oh! my God;’ witness then went round in his shirt, and saw Driscoll and Lang at one end of the verandah; he did not notice any one else on the verandah at that time; he did not see two men sitting on the verandah in conversation; the then went round again. (Evidence unfit for publication.) When he hit Tim with a stone, he did not hear him say anything, and the third time he heard them was near the oven; he know Anthony Hile, [sic] a carrier, and Long, a groom at Nicholl’s; he did not see them on the verandah; he may have had a conversation with Hile and several others about the case; everyone was talking about it; he did not think it would be possible for two people to be sitting on the verandah and not have heard Lang sing out; he had no dispute with Driscoll about three pounds; he owed Driscoll that sum.
For the defence the following witnesses were called:—
Henry Edward Ellis deposed that he was a constable in charge at Blackville; he hear the rumours of this offence having been committed a long time since; he thought about the 1st July; he went to Yarraman for the purpose of making inquiries; he there saw Rowarth, and spoke to him; he led witness to believe at the time that he knew nothing about it; he believed Rowarth did know at the time he was misleading him; he laughed the affair off, and said to the effect that it was only a joke; this is, he led witness to believe so; he had since asked Rowarth why he misled him, and he said he did not like to come forward, because the others held back.
By Sergeant Abbott: I had only been at Black Creek about a fortnight at that time, and was a total stranger to them all; after Tim Driscoll had been arrested by constable Christian, on the way to the station, I cautioned him; I told the prisoner that he need not state anything, but if he did I might make a note of it and use it against him; on the road to the station he said, ‘I am a man that should never take a glass of grog, for if I do I generally get into trouble;’ Mr Nicholl, Anthony Hile, and Mr Pyke all misled me, and laughed the affair off as a joke.
Michael Keough deposed that he was a carrier, and resided at Yarraman; he knew the prisoner; he knew a man named Rowarth; he heard the case talked about a good deal at Yarraman; he had a conversation with Raworth, [sic] who told him he saw Tim Driscoll commit an indecent assault on James Lang.
The evidence was read over and the usual caution given to the prisoners, when they each replied:—‘I have nothing to say; I am not guilty.’
Both prisoners were then committed to take their trial at the next Circuit Court to be held at Tamworth, or such other court as the Attorney-General may appoint.
The Court commenced at 10.30 am, adjourned at 1.30 pm to 15.3pm [sic], and lasted until 7.30 pm.
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Depositions for Timothy Driscoll and James Lang 2 Apr 1880 Tamworth trial 5
(M., 11 & 12 Vic., Cap. 42.)
Depositions of Witnesses.
TO WIT.
The examination of Charles Abbott of Murrurundi in the Colony of New South Wales, Sergeant of Police, Thomas Roworth [aka Rowarth] of Yarraman in the said Colony, Teamster, William Nicholl [aka Nichols] of Yarraman in the said Colony, Publican and Anthony Hill of Yarraman, in the said Colony, Teamster. Taken on oath, this 7th and 13th days of October in the year of Our Lord one thousand eight hundred and seventy nine at Murrurundi 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 Timothy Driscoll and James Lang who are charged this day before me, for that they the said Timothy Driscoll and James Lang, on or about the 29th day of June last at Yarraman in the said Colony, did commit the crime of sodomy.
1
Court House Murrurundi
7th October 1879
James Lang was brought up in custody charged with having committed the crime of sodomy with Timothy Driscoll.
Mr JP Abbott, Solicitor appeared for prisoner.
Charles Abbott being sworn states I am a Sergeant of Police stationed at Murrurundi, about half past 4 on Saturday last I with Constable [John] Christian, went to where prisoners reside on Black Creek, I asked him if his name was Lang? He replied “Yes,” I asked him if he remembered being at Nicholl’s when something took place between him and Tim Driscoll. He said “No, never in my life;” three (troopers ?) were here about that.” I said “Well at was it on the night of the (sports ?)” He said “No,” and (luring ?) to Constable Christian he said to him “You saw me there following next day morning.” I said “Never mind about the date I am going to arrest you.” I said “I now arrest you on suspicion of having allowed Tim Driscoll to commit the crime of sodomy with you at Nicholl’s, and upon a date that you will be told after he said “On suspicion?” I said “Yes.” He replied “Have you any proofs.” I said “I think you will know in good time.” I then cautioned him by telling him “You don’t have to make any statement. You may do so if you
2
like, but that anything you do say I shall make use of against you.” He was then taken to the Black Creek lock up.
By Mr JP Abbott: On the road to Murrurundi prisoner referred to the subject by saying he was very drunk on that night and did not know what happened. I said “Then you mean to say that you were so drunk that you did not know whether Tim went with you or not?” I heard at Yarraman that he was drunk that night. The prisoner also told me that 3 nobblers would, take one after the other, knock him over at any time that he had a kick on the side of the edge from a horse, and he thought that was the cause of it.
[Signed] Charles J Abbott, Sergeant.
Taken and sworn at Murrurundi this 7th day of October 1879 before me.
[Signed] Thomas Burnham Boyce JP.
Remanded until 10 o’clock on Monday the 13th instant.
[Signed] Thomas B Boyce JP
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Court House Murrurundi
13th October 1879
Timothy Driscoll and James Lang were brought up on remand charged with sodomy.
Mr JP Abbott appeared for the prisoners.
Thomas Rowarth being sworn states I am a Carrier residing at Yarraman; I remember seeing, some time ago, the 2 prisoners together at Yarraman, at Nicholl’s Hotel, about the first Sunday that Nicholl’s place was open. I slept in a little storeroom just off the house. I woke up hearing Lang bellow out. He sang out “Oh! Oh! My God!” or something like that. When I went out they the prisoners were both lying side by side quietly. I then went to bed again. I was afterwards disturbed again a few minutes after. I heard the same again, Lang bellowing out. I put on my trousers and went out again. I saw Driscoll on top of Lang. I could not see how Lang was lying as it was dark. Driscoll was moving about in a similar way to that of a man having connection with a woman. I picked up a stone and knocked Tim on the side of the head and then went inside again. I heard a similar noise again; Lang again bellowing out near the kitchen about 8 or 9 yards from where I was sleeping, close to a brick oven at the back. I heard Driscoll tell Lang that he would give him half a
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sovereign in the morning. I heard Lang say “that’s good enough Tim,” old man Lang bellowed out again and said “So help me God.” (?) old man I cannot suffer it, I could suffer hanging better. I heard Lang then walk away. I heard Lang go to Davis’ wagon. I heard Tim looking about. He walked around the end of my room towards the end of the house. I then heard Tim say “I wonder where that f-----g Lang is” or something like that. He said “I must have another fuck before I go.” Next morning I saw Lang coming from Davis’ wagon to the kitchen. I said to Lang “If you do not give Driscoll in charge I will send for the Police and give the two of you in charge.” Lang said “What for?” I told him, “For riding him.” Lang said “I do not recollect anything of the sort.” I have known Driscoll 4 or 5 years. I could not have been mistaken as to its being him that night. I have known Lang 10 or 14 years, I can’t tell which. I have known him a long time. I could not be mistaken as to him. I did not hear Driscoll make any remarks when I hit him with a stone. When I threw the stone I went away at once.
By Mr JP Abbott: This was on a Sunday night but I cannot say what month. It was this first Sunday after Nicholl opened his new house. I can say where I was on the Saturday that Nicholls opened his public house. I cannot say where teams were. I can’t say
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whether I was absent from Nicholls’ house at all, as I lived there at the time. I went to bed about 10 or 11 o’clock just as the house was shut up on this night. I went to bed Just as I went to bed I saw both the prisoners under the verandah. I could not say whether there were other people there. Both the prisoners seemed to be the worst for liquor, they were both pretty well drunk. He, Lang, appeared to be hopelessly drunk. He was on his feet walking about a minute or two before. I had not drank anything that day or sometime before. The room where I slept was about 8 yards from the back of the house. The front verandah where the prisoners went to bed at the back of the house. The verandah was in front of the house. I don’t think I swore in the examination in chief that I woke up at the back of the house. I could hear Lang’s voice. I went out the first time without my trousers. I had no suspicion of what was going on. I heard them calling out and went out to see. I went within 2 yards of them. I cannot say whether it was moon light or dark. The next time I went within the same distance of them, although I was within 2 yards of them on the second occasion I could not say what position they were in, or whether Driscoll had his trousers unbuttoned, or Lang his. It was about 20 yards from where I was sleeping to Davis’ wagon.
By Sergeant Abbott: About this time I was building
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a portion of Nicholls’ premises. This is a lamp in front of the house. I cannot say whether it was alight. If the lamp were alight I could not say whether it would shew a light on the verandah where the men were said to have been. I did not take that much notice.
By the Bench: I think it was a bright night. Don’t know what kind of night it was, I cannot say whether Lang was on his face or on his back. I never spoke to Driscoll on that night the next morning.
[Signed] Thomas (his X mark) Roworth. Witness to Mark, George R Evans, JP.
Taken and sworn at Murrurundi this 13th of October 1879 before me.
[Signed] Thomas B Boyce JP.
William Nicholl being sworn states I am the Landlord of the Yarraman Hotel at Yarraman Creek. I commenced business there on Saturday the 28th of June. On the Sunday night after, I closed the house about 10 o’clock. I can’t say exactly. The two prisoners were there when I closed. I saw them again after I closed the house. I saw them outside on the verandah. There were 9 or 10 of them. I was looking at them pretty well about an hour through the window; they were fighting. Lang had
7
shirt off. I went to be about 11 o’clock. My lamp was alight. It shews a light in the verandah. Shortly after I went to be I got up again. I went to the dining room window, the one looking on to the verandah. I saw the prisoner Driscoll kicking Lang. Driscoll then got up and walked away. He was lying down kicking him, Lang was also lying down. Lang paid for all he had that night – he spent a few shillings. Driscoll cashed a two pound cheque that night. He, Lang, paid for whatever he called for. After I went to bed that night I went to sleep and did not wake until I heard Driscoll and another sing out to me the next morning at daylight. I saw Rowarth was there but not drinking any spirits.
By Mr JP Abbott: Rowarth went out that night as well as the others when I closed. The prisoner Driscoll was pretty drunk well on that night, Lang was also pretty well on. The last time I looked out on the verandah, I saw the prisoners there but no-one else. I heard others talking. If persons were outside they must have seen any one on the verandah, but not if they walked out of a light where Rowarth was sleeping was about 20 yards from the back and for Rowarth to go round it would be more. That night the verandah was open at both ends, but it was not now. I saw Lang and Driscoll the next day. Davis’ team was camped about 8 or 10 yards from the
8
spirit room where Rowarth was sleeping. By Sergeant Abbott.
By the Bench: I am aware of the charge against the two prisoners; I did not see anything of such an offence. After I saw Driscoll kicking Lang I went to bed. I slept normally and did not hear any expression between either of them. There were several partitions between where I was sleeping and the verandah. Roworth didn’t tell me the next morning what he had seen during the night. I heard others talking about it, but I did not charge either of the prisoners with it. I passed and spoke to Rowarth the next morning day. Lang had a pound note and a half sovereign the next day. Driscoll had no money the next morning until about 11 o’clock when he came down and said he made a pound, that he found a pound note at his feet, where he had been lying. I don’t know whether he, Lang, had that money the night before but I heard he cashed a cheque with Pyke (?) that day. Mrs Nicholl pays Lang’s wife, his daughter’s wages, who is a servant at my home.
[Signed] W Nicholl.
Taken and sworn at Murrurundi this 13th day of October 1879 before me.
[Signed] Thomas B Boyce JP.
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Anthony Hill being sworn states, I am a Carrier living at Black Creek. At the time of the opening of Nicholl’s house I was camped at Yarraman. I was there on the Sunday after the night the house opened. Amongst others I saw the 2 prisoners there; I went to my dray about the middle of the night. I camped under my dray. As I was going to my dray I heard Lang singing out. He sang out “Oh! Oh!” I turned back and looked and saw them, Driscoll and Lang, up near the oven, they were lying down. Lang said “I can’t suffer this. I would rather suffer hanging.” I did not go very close to them, I was about 8 or 10 yards off them. They were lying very close together. Tim Driscoll across Lang to the best of my belief. I did not go very close. I did nothing to them. When lang said “I can’t suffer it, I would rather suffer hanging,” Driscoll said “ I will give you another half sovereign.” I then went to my dray. I saw a man standing not far away. I did not know at the time who it was. To the best of my belief it was Tom Roworth; where they were lying was not the usual place for men to go and sleep. I was at the public house during the evening. I saw Driscoll and Lang there. I last saw them about 10 o’clock when the house closed. They both had liquor. They were able to walk about.
By Mr JP Abbott: I was sleeping under my dray that
10
night; I was camped about 20 yards from the public house. I have had no conversation about the case with Roworth. Roworth I went our of the bar when Nicholls shut up and sat on the end of the verandah. I was sitting on the end of the verandah as near as I can recollect for about two hours before I went to my dray. Billy Long was with me talking about teams. I never left the verandah until I went to my dray. Long went away to the stables to sleep. I did not take any notice of anything going on in the verandah during that time. I did not see Tim Driscoll lying on the verandah whilst I was there, nor did I see Driscoll kick Lang off. It might have happened whilst I was sitting on the verandah. I did not hear Lang sing out “Oh! Oh! My God!” and he, Lang, on the verandah. I know where Nicholl’s storeroom is, at the back of the house. Although their words may have been heard in Mr Nicholl’s storeroom by Rowarth I may not have taken any notice of them. I don’t know whether it is likely that Rowarth at the back of the house could hear Lang singing out and I not hear it. I and Long were busy talking. I did not see Roworth come round in his shirt without his trousers. I did not see Rowarth come round the verandah and hit Tim Driscoll, who was said to be on the verandah, with a stone. After Mr Nicholl shut up the house I saw the 2 men outside. I did not notice the 2 prisoners on the verandah. Rowarth told me that he was standing at the oven a few days ago. Rowarth did not tell me what he saw.
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I said to Rowarth that I saw a man standing at the oven. He said “I am the man when Lang and Driscoll were lying at the oven. I was about 8 or 9 yards off. I saw their faces and know their dress. I could tell the two men. Rowarth did not tell me that Lang said “I can’t suffer this!” I did not know what was going on when I heard Lang crying out “Stop!”
[Signed] Anthony (his X mark) Hill. Witness to Mark George R Evans, JP.
Taken and sworn at Murrurundi this 13th day of October 1879 before me.
[Signed] Thomas B Boyce JP.
By Mr JP Abbott: Thomas Rowarth recalled. Deposed it was three times I heard something between these 2 men going on. The first time was on the verandah when I heard Lang sing out “Oh! Oh! My God!” I then went round in my shirt. I then saw Driscoll and Lang at one end of the verandah. I did not notice anyone else on the verandah at that time. I did not see 2 men sitting on the verandah in conversation. I then went round again and saw Driscoll on top of Lang. That was the second time when I hit Tim with a stone, I did not hear him say anything, and the third time I saw heard them was near the oven.
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I know Anthony Hill a Carrier and Long a Groom at Nicholls’. I did not see them on the verandah. I may have had a conversation with Hill and several others about the case. I don’t think it would have been possible for two people to be sitting on the verandah and not to have heard Lang sing out “Oh! Oh! My God!” I have had no dispute with Driscoll about three pounds, he has asked me for it and I owe him it.
[Signed] Thomas (his X mark) Rowarth. Witness to Mark George R Evans, JP.
Taken and sworn at Murrurundi this 13th day of October 1879 before me.
[Signed] Thomas B Boyce JP.
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For the Defence
Henry Edward Ellis being worn states I am a Constable in charge of Blackville; I heard rumours of this offence having been committed a long time since. I think about the 1st July. I went to Rowarth went to Yarraman for the purpose of making enquiry. I there saw Rowarth and spoke to him. He led me to believe at the time that he knew nothing about it. I believed he sis know at the time, he was misleading me. He laughed the affair off, and said, to the effect that, it was only a joke, that he led me to believe so. I have since asked him why he misled me? And he said that he did not like to come forward because the others held back.
By Sergeant Abbott: I had only been there a fortnight at that time, and was a total stranger to them all. After Tim Driscoll had been arrested by Constable Christian on the way to the Station I cautioned him. I told the prisoner that he need not state anything, but if he did I might make a note of them against him. On the road to the station he said “I am a man that should never take a glass of grog, for if I do I generally get into trouble.” Mrs Nicholl, Anthony Hill, and Mrs Pyke all misled me and laughed it off as a joke.
[Signed] HE Ellis. Taken and sworn at Murrurundi this 13th day of October 1879 before me. [Signed] Thomas B Boyce, JP.
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Michael Keogh being sworn states, I am a Carrier and reside at Yarraman. I know the prisoner. I know a man named Rowarth; I heard the case talked about a good deal at Yarraman. I had a conversation with Rowarth. He told me he saw Tim Driscoll commit a indecent assault on James Lang.
[Signed] Michael (his X mark) Keough. Witness to Mark, George R Evans, JP.
Taken and sworn at Murrurundi this 13the day of October 1879 before me.
[Signed] Thomas B Boyce, JP.
Both prisoners committed for trail at the next Circuit Court to be held at Tamworth, or such other Court, time or place as the Attorney General may appoint.
[Signed] Thomas B Boyce, JP.
~ ~ ~ ~ ~
(N., 11 7 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales,
TO WIT. }
James Lang stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 13th day of October in the year of Our Lord one thousand eight hundred and sixty seventy nine, for that he, the said James Lang on or about the 29th day of June last at Yarraman in the said Colony, did commit sodomy with Timothy Driscoll 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 cause 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 to give 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 James Lang and the witnesses for the prosecution being severally examined in his presence, the said James Lang 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 James Lang saith as follows:– “I don’t know anything at all about it. I am not guilty.”
Taken before me, at Murrurundi in the said Colony, the day sand year first abovementioned.
[Signed] Thomas B Boyce, JP.
~ ~ ~ ~ ~
(N., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales,
TO WIT. }
Timothy Driscoll stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony, aforesaid, this 13th day of October in the year of Our Lord one thousand eight hundred and sixty seventy nine for that he, the said Timothy Driscoll on or about the 29th day of June at Yarraman, in the said Colony, did commit sodomy with James Lang 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 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; the said charge being read to the said Timothy Driscoll and the witnesses for the prosecution being severally examined in his presence, the said Timothy Driscoll 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 Timothy Driscoll saith as follows:– “I am not guilty, I know nothing at all about it.”
Taken before me at Murrurundi in the said Colony, the day and year first abovementioned.
[Signed] Thomas B Boyce JP .
~ ~ ~ ~ ~
Recognizance to give Evidence.
New South Wales,
TO WIT. }
Be it remembered, that on the 13th day of October in the year of Our Lord one thousand eight hundred and fifty seventy nine Charles Abbott Sergeant to Police, Thomas Roworth of Yarraman, Teamster, William Nicholl of Yarraman, Publican and Anthony Hill of Yarraman, Teamster, personally came before Thomas Burnham Boyce Esq one of Her Majesty’s Justices of the Peace for the said Colony, and acknowledged themselves to owe to 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 condition indorsed.
Taken and acknowledged the day and year first abovementioned, at Murrurundi in the said Colony, before me
[Signed] Thomas B Boyce JP.
The condition of the within written Recognizance is such, that whereas Timothy Driscoll and James Lang were this day charged before Thomas Burnham Boyce Esq the Justice of the Peace within mentioned, for that they did commit the crime of sodomy if therefore they, the said before mentioned persons shall appear at the next Circuit Court to be holden at Tamworth in and for the Colony of New South Wales, on the day of and there give such evidence as they know upon an information to be then and there preferred against Timothy Driscoll and James Lang for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Timothy Driscoll and James Lang then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] Thomas B Boyce JP.
~ ~ ~ ~ ~
[On the depositions’ cover sheet is the following]
Tamworth CC
1880
No. 677
Depositions.
Regina No. 1
v.
Timothy Driscoll and James Lang
Sodomy
See within [initialled] RW [Robert Wisdom, AG]
Committed at Murrurundi
on 13 October 1879
~ ~ ~ ~ ~
Sodomy
[Initialled] RW [Robert Wisdom] AG
16/10/79
~ ~ ~ ~ ~
Justice P Faucett’s Notebook 6
43
[Tamworth, Friday April 2, 1880]
Queen v Timothy Driscoll and James Lang at Yarraman 29 June last
Wisdom AG for Crown
[Mr EH] Cohen for prisoner Driscoll (Requested)
[Mr J] Dillon for prisoner Lang
Charles Abbott examined by AG. Sergeant of Police – at Murrurundi. I know prisoners only from this case. I arrested Lang on 4th October last. I asked him his name. He said Lang. I said Do you remember being at Nichol’s when something took place between you and Tim Driscoll. He said No – never in my life – three troopers were here about that – I said Do you remember the night it is said to have taken place – was it the night of the sports – Constable Christian was with me. Turning to Constable Christian he said You know – I saw you there the next day morning – I said Well never mind dates – I am going to arrest you on suspicion of having allowed Tim Driscoll to commit sodomy with you on a date that would be afterwards told. Nichol’s public house is at (Blackwattle ?) on Black Creek. He said On suspicion – have you any proofs. I said I think so. You will know in good time. I took him in to Murrurundi.
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Driscoll was already in custody on another charge.
Cross-examined by Cohen. I know Constable Ellis – Nichol – Pyke a storekeeper and Hill – all living at Black Creek. I believe Constable Ellis made some enquiries about this case – He is (50 ?) miles from where I am stationed.
Cross-examined by Dillon. I think the 29th September was the day of the sports – but I don’t know – I think it was month [sic–more] than a month before the day I arrested Lang.
Thomas Rowarth examined by AG. Carrier residing at Yarraman – 4 or 5 miles from Black Creek. I know prisoners. I was at Nichol’s Hotel somewhere about the 29 June last. I saw prisoners there on different occasions. The first Sunday that Nichols opened his new Hotel there was a good few people there. Billy Long was there – Anthony Hill was there. A man named Stephen (Rawson ?) was there. John Davis was there. That Sunday night I slept at Nichol’s Yarraman Hotel. I was sleeping in a little room 8 or 10 yards from the Hotel. I heard a man singing out Oh my God – Oh my God, as if something had happened to him.
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I fancied it was I knew the voice – I could not swear to a person’s voice. I believe it to be James Lang’s voice – I have known Lang for a great many years. I got up and (went ?) into the verandah of the Hotel – When I got there I saw both prisoners lying quiet side by side. I went back to my bed. This was after they had shut up at the Hotel. I could not say what time. I was in bed a short time when I heard a similar report again – like singing out Oh my &c. – as if coming from the Hotel verandah. It was the same voice. I slipt on my trowsers and went. I then saw Driscoll lying on top of Lang – moving. I picked up a stone and hit Driscoll on the head. I then went back to my bed. I was not lying in my bed long when I heard two persons walking round the end of the kitchen – about 8 or 9 yards from where I was sleeping. I heard Driscoll say I’ll give you 10/- old man. I have it not now. I’ll give it to you in the morning. I think he said half a sovereign. Lang said that is good enough Tim, old man. Lang said Oh (?) my God I can’t suffer it – I could suffer hanging better.
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Next thing I heard was a man walking away – I took it to be Lang – I did not see him. I heard Driscoll was walking round the bed where I was sleeping – I heard a person speak, to best of my belief it was Driscoll. I have known Driscoll a good few years. He said I wonder where that b----- Lang [is] – I wish I could find him – I must (?) – before I go home. That is all I saw that night. I saw Lang next morning. I spoke to him. I told him if he did not give Driscoll in charge I would give the two of them in charge. He said what for. I told him for having connexion with him. He said he knew nothing at all about it. Of course I might have been mistaken – I could not swear right away – I could not swear as to the men I saw on the verandah – but to the best of my belief they were Lang and Driscoll.
Cross-examined by Cohen. I had been at Nichol’s a good while off and on. Weeks – months before – still carrying on as a carrier. There were a good few people about – all appeared to be drinking. I was not drinking that day – nothing but soft stuff, ginger wine – tea – no brandy or rum that day.
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I do touch spirits – I did not touch spirits that day nor for evening before – I think the prisoners were the worse for liquor – Lang appeared to be very much. They were the worse for liquor – but could walk about. Lang was very much the worse – Driscoll was something like the same state as Lang – “Helplessly drunk”. I said at Police Court they were the worse for liquor – Lang appeared very drunk. It might have been 10 or 11 o’clock when I first went to bed. The room I was in was at the back of the house. The house was between me and them when they were on the verandah – a wooden building. I can’t say what kind of night it was – I think it was dark – I could not be certain. I went close to them 3 times. It was the second time that I saw Driscoll on Lang. I could not swear whether Lang was lying on his face or on his back – I believe he was on his face. I was then less than 2 yards from them – very close to them. I could not swear that either of them had his trowsers unbuttoned. There is a lamp at the public house – I believe it was alight – I won’t swear – it is so long ago. Some part of the Sunday I had been knocking about the place.
48
I can’t tell whether I had been away from Nichol’s that day – not far. I can’t tell what time I rose. I might have been very tired when I went to bed. I heard a man walking round my room – I believed it to be Driscoll. I won’t swear it was. I can’t say whether Driscoll had been kicking Lang the previous part of the night – I heard it spoken of. He said I wonder where that Lang is – I must (?) before I go home. I know it was not that he must find Lang and have another fight with him. Although 9 months have been past I can’t be mistaken as to the words. I saw Driscoll some time next morning – I did not speak to him about it.
Cross-examined by Dillon. I can’t tell the day the sports were. It was not the night of the sports when I saw them – I believe it was the night of the 29 June. I did not inform the Police – I was summoned 3 months after – Constable Ellis went up there – and saw me. He did not speak about this case. He met me at the (Mookie ?) Springs. He asked me what I knew about this affair. I said what little I knew was not worth bothering about.
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I heard the (?) at the Police Court that I led him to believe I knew nothing about it – I did not say it was a joke – I said it amounted to nothing. There were 8 or 10 men there drinking – Just as the house closed I went to bed – I heard a noise (?) from the verandah. I believe it was a dark night – but I can’t swear. I did not say it to Police but that Lang was helplessly drunk – I can’t say whether I said so (in ?) Deposition. Both the worse for liquor. Lang “helplessly drunk”. I would not like to swear positively prisoners were the men.
By AG. I gave evidence at Murrurundi (to ?) the wool (session ?). I was house building at Yarraman. I was not drinking at that time. When Constable Ellis spoke to me was some time after – it may have been a month after. I met Constable Ellis at (Mookie ?) Springs – Constable (Gorton ?) was with him. Ellis said I want to speak to you – I went aside with him – He said what do you know about this. I said it is not worth while.
By Dillon. I can’t say whether the (under ?) man was on his face or back – or (trowsers ?) (down ?).
By AG. A (?) (close ?) to where I heard the last (?) – near to kitchen.
50
Anthony Hill examined by AG. Carrier living at Black Creek. I remember the opening of Nichol’s hotel – in June last – I don’t remember the day – it was a Sunday – I knew the prisoners before – Lang for about 2 years – Driscoll for about 9 years – I saw them both that night – under my dray – about 100 yards from the house. I left to go to my dray about the middle of the night – I heard Lang singing out Oh – Oh – They were lying down by the oven – Lang and Driscoll. This oven is close to Nichol’s kitchen. Lang said I could not suffer this – I’d rather suffer hanging. Tim Driscoll said I’ll give you another half a sovereign in the morning – I did not notice their position – They were lying down close together. I was 8 or 10 yards off – I did not go near them. I saw another standing over opposite to me – I could not say how far he was from them. That man was Tom Rowarth – the last witness. I did not speak to Rowarth or the prisoners – I went on to my dray – and saw no one else.
Cross-examined by Cohen. I was camped at Nichol’s for a day or two. There was a good few people at Nichol’s in the day time – They were there till shut up time – about 10 o’clock.
51
I was getting my meals at the public house. I may have had a drink. I was at the public house from dusk till they shut up – I remained there till about 12 o’clock. I was on the verandah from 10 o’clock till 12 o’clock that night. I did not see him hit Driscoll on the head with a stone. Rowarth did not tell me anything particular. Rowarth did not tell me what he saw. I was on the verandah till I went to my dray about 12 or 1 o’clock.
Cross-examined by Dillon. I was at the end of the verandah till I went to my dray. I did not see Rowarth at the verandah – nor see him strike Driscoll with a stone. It was a starlight night – I was 8 or 10 yards from the prisoners. I saw a third man. I was told it was Rowarth, told so by Rowarth himself. I was not told about the other two. I know them by their voices – To best of my belief it was their voices – I won’t swear to their voices. I saw their faces but I would not swear to them.
By AG. I did not see Driscoll next morning. I saw Rowarth a day or two after – a good bit after when he was on the roads.
52
William Long examined by AG. Dealer in Murrurundi. I know prisoners – not long. I know Nichol’s public house at Black Creek – I was there at the opening of the public house on 29 June last. I saw prisoners there. I slept at Nichol’s Hotel. I did not sleep in the Hotel – I slept in the stables – about 30 yards from the house. I left the Hotel about 10 o’clock to go to the stables. I saw prisoners that night – about the time I went to bed. I saw them on the verandah. I know where Rowarth sleeps. Rowarth’s sleeping place was nearer to one end of the verandah than to the other. Prisoners were sitting on a (stool ?). Between 1 and 2 o’clock I noticed some thing peculiar. I was at the end of the verandah – furthest from where prisoners were sitting. I heard a row going on. I was not (?) before. I saw no one – I saw nothing while I was on the verandah, but when I left with the intention of going to bed. Driscoll followed me – calling me names. I ran away from him. I got to the stables about 2 o’clock.
53
After that I heard a man making a noise – a (?) hammering at the door – at Thomas Rowarth’s bed-room door – I came out of the stables and stood there. I stopt outside of the door and listened. I heard nothing – I have been telling the Constable Abbott about this case. I remember these men being charged in October. Since that I was speaking to Constable Abbott – I spoke to him this morning. Subsequently I heard a row sound on the verandah – I did not see prisoners that night after I left the verandah – When I left the verandah to go to the stables prisoners were sitting at the end of the verandah nearest to Rowarth’s place – I did not see them afterwards that night.
John Davis examined by AG. I was not examined before. I am a selector at (Mookie ?) Springs – about 15 miles this side of Yarraman. I know prisoners – long while. I remember being at Nichol’s about the time [of the] opening in June last – I saw prisoners there on a Sunday – about 29 June. I slept that night in Nichol’s Hotel – the whole night.
54
I was about the house – I saw prisoners that night – When I saw them last it was about 10 o’clock at night. Lang rolled off the (stool ?) – Driscoll was lying at the edge of the verandah. After I was in bed a certain time I heard a noise.
By Cohen. I could not swear whose voice it was – I just woke out of my sleep. I can’t say I have a belief – I saw nothing at all – I heard the voice out in the verandah – I can’t say in what part – There were two walls between – I can’t say I heard a voice that I knew that night – It is so long since – and I was woken out of my sleep. There was a great many about at the same time. I had a conversation with Sergeant Abbott about this – 2 months ago – I told him what I heard. I believe he took down in writing what I told him – I did not see that afterwards.
Sergeant Abbott [examined] by AG. I gave evidence at Murrurundi. Constable Ellis was called for the defence – and Michael Keogh. Neither is here today.
55
Cross-examined by Dillon. Constable Ellis is in charge at Blackville.
Case for Crown.
By Cohen. Nichols was called at the Police Office for Prosecution – He is here.
William Nichols examined by AG. Keep the Yarraman Hotel. I know prisoners. I opened on Saturday the 28th – prisoners were not there on Saturday – they were there on Sunday and Sunday night. Rowarth was there – prisoners did not (stop ?) there during the night. A good many about. I saw Driscoll next morning. He (?) out from a (?) behind the (?) – Lang brought £1 note and ½ sovereign for charge next morning
Cross-examined by Cohen. 10 or a dozen people were about next morning. I did a fair business that day – as usual. I closed about 10 o’clock. A good many people (?). After that there was a fight outside. My outside lamp was burning that night – It throws a light on the verandah – 58 feet long. After I went to bed I heard some singing out. I got up and went to the Dining Room which looks out on the verandah. I saw Driscoll kicking Lang. Driscoll got up and went away.
56
Lang was lying just off the verandah – on the stones. They were pretty well on. I know where Rowarth slept – his room is 16 yards from the back of the building. Rowarth told me nothing next morning. I know Michael Keogh – he is living at Yarraman. He was examined for the defence. Lang is either a (shepherd ?) or boundary rider. He was then in employment.
Cross-examined by Dillon. I looked upon this charge as a joke – I heard so many different yarns about it – before the case was brought forward in Murrurundi in the (October ?).
Case for Crown.
Cohen to Jury.
Dillon to Jury.
Attorney General to Jury. Not safe to convict of the capital charge. Material distinction between Lang and Driscoll.
Jury retires at 10/6.
Rowarth by me – at request of Jury. I did not say to-day that I left my room on the third occasion – I did not leave my room on the third occasion – I did not tell that I did. That may have been on the second occasion at the verandah.
5/11 Verdict
Driscoll Not guilty.
Lang Not guilty.
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The Tamworth Observer and Northern Advertiser, Wed 7 Apr 1880 7
CIRCUIT COURT.
SATURDAY, APRIL 3, 1880.
Before His Honor Judge Faucett, and a Jury of Twelve.
The Hon Attorney-General [Robert Wisdom] prosecuted on behalf of the Crown, instructed by Mr Lee. Messrs EH Cohen and J Dillon represented the Bar. All the local solicitors gave their attendance.
UNLAWFULLY KNOWING.
Timothy Driscoll, was arraigned on a charge of carnally knowing a child, two years old. He pleaded not guilty.
The Crown Prosecutor explained that as he was not prepared to go on with the case, he would take bail for the prisoner, himself in £80, and two sureties of £40 each. Bail could not be found, and it was explained that prisoner had been in prison nearly six months.
His Honor remarked that the bail asked was high, and that prisoner might have been tried at the last Court of Quarter Sessions. Under these circumstances, he thought prisoner should be released on his own recognisances.
Prisoner was then bound in the sum of £80 to appear at such time and place as the Attorney-General may appoint.
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The Maitland Mercury and Hunter River General Advertiser, Thu 8 Apr 1880 8
TAMWORTH CIRCUIT COURT.
————
(Abridged from the Tamworth News, April 2.)
The Circuit Court opened at Tamworth on Thursday, before his Honor Judge Faucett. Mr Wisdom, Attorney-General, prosecuted.
…
(Abridged from the Tamworth News, April 6.)
FRIDAY, APRIL 2, 1880.
Timothy Driscoll and James Laing [sic] were jointly indicted for an unnatural offence committed at Yarraman, on the 29th June, 1879. The Attorney-General prosecuted for the Crown. Mr Dillon, instructed by Mr Carter, defended Laing; and Mr Cohen was assigned by the Court to defend Driscoll, instructed by Mr Tribe. The jury, after an absence of about five hours, brought in a verdict of not guilty. Laing was discharged, but Driscoll was remanded for another offence for which he was under committal.
SATURDAY, APRIL 3.
Timothy Driscoll was charged with having indecently assaulted a young girl named Peri Cairns. The Attorney-General stated that he did not intend to proceed with the case, and intimated that he was prepared to accept bail for prisoner’s appearance when called on. The accused was discharged on his own recognisance of £40 to appear when called upon.
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The Singleton Argus and Upper Hunter General Advocate, Wed 14 Apr 1880 9
CIRCUIT COURT.
————
TAMWORTH, THURSDAY, APRIL 1, 1880
(Before His Honor Judge Faucett.)
Mr Wisdom, Attorney General, prosecuted for the Crown.
The bar was represented by Messrs Wisdom, Dillon, and Cohen. Solicitors:—Messrs Tribe, Dowe, Bedwell, Smith, Newman, Levien and Murphy, and Abbott (Murrurundi).
The Judge’s Associate read the Queen’s Proclamation for the suppression of vice and immorality.
Several prisoners were then brought up and pleaded to the informations filed against them.
…
SATURDAY, APRIL 3, 1880.
————
INDECENT ASSAULT.
Timothy Driscoll was charged was [sic] having indecently assaulted a young girl named Peri Cairns.
The Attorney-General stated that he did not intend to proceed with the case, and intimated that he was prepared to accept bail for prisoner’s appearance when called on—himself in £80, and two sureties in £40 each.
His Honor having learned that prisoner had been in gaol six months, ridiculed the idea of asking such heavy bail, and ultimately, after remarks from the Attorney General, discharged the accused on his own recognizances of £40, to appear when called upon, “at such time and place, etc.”
The required recognizance having been entered into, Driscoll was set at liberty.
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Timothy Driscoll, Gaol photo sheet 10
![SRNSW: NRS2326, [2/2107] , Maitland Gaol photographic description book, 1873-1922, No. –, p. 152, R5127.](../../images/trials/1880-Driscoll-gaol-photo-2-2107.jpg "SRNSW: NRS2326, [2/2107] , Maitland Gaol photographic description book, 1873-1922, No. –, p. 152, R5127.") |
Gaol Photo Sheet - Transcribed Details
No.
Date when Portrait taken: 4th February 1880
Name: Timothy Driscoll
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Native place: England Year of birth: 1817 Arrived Ship: Caledonia Trade or occupation Religion: R Catholic Education, degree of: Nil Colour of hair: Grey Colour of eyes: Grey Height: 5' 9½" Weight On committal: Marks or Special Features: Fingers of right hand mutilated |
Where and when tried: Murrurundi PO Offence: Sodomy & attempt Rape Sentence: For trial CC Tamworth Remarks: To Tamworth
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(No. of Previous Portrait ... ) PREVIOUS CONVICTIONS |
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1 The Singleton Argus and Upper Hunter General Advocate, Wed 20 Aug 1879, p. 6. Emphasis added.
2 The Singleton Argus and Upper Hunter General Advocate, Wed 8 Oct 1879, p. 6.
3 The Singleton Argus and Upper Hunter General Advocate, Wed 15 Oct 1879, p. 5. Emphasis added.
4 The Singleton Argus and Upper Hunter General Advocate, Wed 22 Oct 1879, p. 5. Emphasis added.
5 SRNSW: NRS880, [9/6660], Supreme Court, Papers and depositions, Tamworth, Apr 1880, No. 677. Emphasis added.
6 SRNSW: NRS5927, [2/3942], Judiciary, P Faucett, J. Notebooks Circuit Courts, 1866-87, pp. 43-56. Emphasis added.
7 The Tamworth Observer and Northern Advertiser, Wed 7 Apr 1880, p. 2.
8 The Maitland Mercury and Hunter River General Advertiser, Thu 8 Apr 1880, p. 6.
9 The Singleton Argus and Upper Hunter General Advocate, Wed 14 Apr 1880, p. 5.
10 SRNSW: NRS2326, [2/2107], Maitland Gaol photographic description book, 1873-1922, No. –, p. 152, R5127.