The Sydney Herald, Fri 10 Mar 1871 1
WINDSOR.
———◦———
POLICE OFFICE.—Saturday, March 4th.—Before Mr JM McQuade, JP. Henry [aka Charles] Barber, an aboriginal native, 16 years of age, was brought up in custody charged with the commission of an unnatural offence at Portland Head, and after hearing evidence was committed for trial at the ensuing Central Criminal Court.
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Depositions for Charles Barber 8 May 1871 Sydney trial 2
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Depositions of Witnesses.
New South Wales, Windsor,
TO WIT }
The examination of John James Fitzpatrick of Windsor in the Colony of New South Wales, Senior Sergeant of Police, taken on oath, this 21st day of February in the year of Our Lord One thousand eight hundred and seventy one, at Windsor in the Colony aforesaid, before the undersigned, two of Her Majesty’s Justices of the Peace for the said Colony, in the presence and hearing of the accused, Charles Barber, who is charged this day before us, for that he the said Charles Barber, on or about the 25th day of January last at Portland Head, in the said Colony, with a certain mare feloniously, wickedly, and against the order of nature, had a venereal affair, and then and there carnally knew the said mare.
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William H Thomas, CPS,
Court House Windsor, 6 March 1871
William Edmond Plunkett, Under Secretary,
Crown Law Department, Sydney
Sir,
Under separate cover I have the honour to forward depositions and other proceedings had and taken in the case of Charles Barber who stands committed to have his trial for sodomy at Darlinghurst on the 8th day of May next.
I have the honour to be,
Sir,
your most obedient Servant.
[Signed] William H Thomas, CPS.
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John James Fitzpatrick on his oath saith:– I am Senior Sergeant of Police stationed at Windsor. I apprehended the prisoner yesterday at Portland Head Sackville Reach on the Hawkesbury River, by virtue of a warrant, which I now produce, under the hand and seal of Robert Dick, a Magistrate of this Colony, wherein prisoner is charged with carnally knowing a mare – the prisoner is a half-caste of this Colony and speaks English well – he had told me he had been to school and could read a little – I told him the charge – I told him that I apprehended him for carnally knowing a
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mare – he said “What does that mean?” – I told him it was by his entering his privates onto the body of the mare – he said nothing – I cautioned him in the usual way, he still made no reply – I asked him if he had anything to say to the charge. He said he had not – I brought him to Windsor and lodged him in the gaol – He answers to the name of Henry Barber
Prisoner put no questions:
[Signed] JJ Fitzpatrick.
Sworn at Windsor this 22nd February 1871 before us.
[Signed] John M McQuade, JP, Robt. Dick, JP.
Prisoner remanded till the 28th inst.
[Signed] John M McQuade, JP, Robt. Dick, JP.
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28th February 1871
Court House, Windsor
Charles Barber was brought before the Court this day pursuant to remand and further remanded till the 4th of March now next.
By us:
[Signed] Henry Day, JP, John M McQuade, JP, Robt. Dick, JP, Edward [Name illegible]
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Depositions of Witnesses.
New South Wales, Windsor,
TO WIT }
The examination of John McNeely of Wilberforce, in the Colony of New South Wales, Constable, John Dean of Portland Head in the said Colony, Farmer, and Adam De Rome of Wilberforce aforesaid, Labourer, taken on oath this 4th day of March in the year of Our Lord One thousand eight hundred and seventy one, at Windsor 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 the accused Charles Barber who is charged this day before me with the felony aforesaid.
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4th of March 1871
Court House Windsor
Mr Coley Walker appeared on behalf of the prisoner.
The previous evidence having been first read over the following witnesses were examined.
John McNeely on his oath saith:– I am a Constable stationed at Wilberforce in the District of Windsor – I was in company with Senior Sergeant Fitzpatrick when he arrested the prisoner on the 20th February last – I heard him explain the nature of the charge that prisoner was apprehended upon – I heard
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him cautioning the prisoner in the usual way – prisoner was left in my custody whilst the Sergeant went somewhere else. It was at Sackville Reach – prisoner said “What’s against me?” I said “The Sergeant told you the charge, for having connection with a mare – the prisoner said “I was put up to that trick” – I said “What trick” – he said “The trick with the mare” – He said “Someone up the Hunter put me up to it” – he did not know their names – all the way to the watch house he kept asking if anyone was coming up against him – I told him there was – he also said that the other man had
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said they had done it themselves – he said “I did nothing to the mare” –
By Mr Walker: I can only judge prisoner’s age by his appearance – I have no information about his age – he said he was going for 16.
[Signed] John McNeely.
Sworn at Windsor this 4th March 1871 before me.
[Signed] John M McQuade, JP.
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John Dean on oath saith:– I am a farmer and live on the Hawkesbury River at Portland Head – I know the prisoner I have known him since he was a little boy – I think he is between 16 and 18 years of age. I have known him 14 years and he could run about well when first I knew him – I was coming along a swamp at Portland Head on the 25th of January last – I saw the prisoner there – he was 110 yards off when I first saw him – I saw him standing on a log behind the a mare, which was backed up against the log – there was a large gum tree
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between me and where the boy was – Adam De Rome was in company with me – I called De Rome’s attention to the matter – he advanced toward where the prisoner and his mare were – he got close to the large tree – De Rome was with me then – the tree is 26 yards from where the prisoner were – I saw him having connection with the mare – she moved on a bit he got down off the log and backed her up against it again – then he got up on the log – he pulled her tail on one side with his right hand and went frigging at her again. His left had was on the mare’s rump – he put his
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person against the mare and put his body in motion as if he was having connection with her – I was at the prisoner’s back – there was a horse up the range which winnied [sic]. The boy looked round and saw me and got down off the log. He appeared to be fastening up his trousers – he kept his back to me – I know the mare he had – she is very quiet – she is a draught mare – where he stood the rotten sap was all trampled off – the ground had the marks of the mare’s feet on – not 2 minutes elapsed from the time I first saw prisoner till he got off the log – I asked him what he was up to with the mare he said
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“Nothing” – I said “How can you say that when I and this chap see you frigging the mare” – I walked the 110 yards neither fast nor slow – last Wednesday I examined the log and am satisfied that had the prisoner chosen he could have entered the mare’s body whilst standing on the log. The mare is a roan mare belonging to Mr George Johnson – she is branded GJ. I cannot swear whether the boy’s penis entered the body of the mare – I believe from what I saw he was endeavouring to have connection with the mare – I can’t swear he had any connection with the mare –
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By Mr Walker : My evidence is not contradictory – I did not see him 5 minutes altogether with the mare – he only got down once to push the mare back. He had his clothes on – I did not see his naked person –
Re- examined: I can’t say how long he may have been with the mare before I saw him – the top of the log or where he stood is about 1ft 9 inches or 10 inches from the ground – the boy never turned round to me – he appeared to me to be fastening up the front part of his trousers – I pointed out a horse to the Police, nearly the size of the mare – I saw this horse backed against the log where prisoner stood, and am of opinion that the offence of having connection
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with the mare could have been accomplished.
[Signed] John Dean.
Sworn at Windsor this 4th March 1871 before me.
[Signed] John M McQuade, JP.
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Adam De Rome on his oath saith:– I am a Labourer and live at Wilberforce – I was at John Dean’s at Portland Head on the 25th of January last – I was in company with Mr Dean that day – I know the prisoner – I saw him that day, in the bush against John Dean’s place – I saw him standing on a log with a mare in front of him – I was about 110 yards off there – I am Mr Dean walked on towards him – there was a large gum tree which kept us from prisoner’s view – we got to the tree – we were then about 26 yards from the prisoner – I saw him holding the mare’s tail on one side with his right hand
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his left was down against his fundament, I mean his penis, his private parts – I saw his arse working backwards and forwards – I saw the mare move a little from the log and him jump down to put her back again – he then got on the log and began to do the same thing again, by which I mean as if he were having connection with the mare – a horse having winnied the prisoner looked round and jumped down off the log – he kept his back to us – I saw him put his hand down as if he was buttoning up his trousers – I suppose the prisoner was 4 or 5 minutes with the mare from when I first saw him till he
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jumped off the log the second time – Mr Dean asked him what he was doing to the mare – he said “Nothing” – Mr Dean said “What’s the use of you saying that when one this chap watched you fucking her” – the mare is a dark ivory grey or roan – she was a big mare, a draught mare I would think – she appeared to be very quiet –
By Mr Walker: I can’t swear that he put his person into this mare –
Re- examined: I can’t swear he did it.
[Signed] Adam De Rome.
Sworn at Windsor this 4th March 1871 before me.
[Signed] John M McQuade, JP.
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Statement of the Accused.
New South Wales,
TO WIT }
Charles Barber stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 4th day of March in the year of Our Lord One thousand eight hundred and seventy one for that he, the said Charles Barber on or about the 25th day of January AD 1871 at Portland Head, in the Colony, did commit the felony aforesaid 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; and the said charge being read to the said Charles Barber and the witnesses for the prosecution John James Fitzpatrick, John McNeely, John Dean and Adam De Rome being severally examined in his presence, the said Charles Barber 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 Charles Barber saith as follows:– “I have nothing to say.” Taken before me, at Windsor in the said Colony, the day and year first above mentioned.
[Signed] John McQuade, JP.
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Prisoner was thereupon fully committed to take his trial at the next sitting of the Central Criminal Court Sydney to be held on Monday the 8th day of May next. By us, Courthouse Windsor, 4th of March 1871.
[Signed] John M McQuade, JP.
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Justice JF Hargrave’s Notebook 3
3
[Darlinghurst, 8 May 1871]
4 Queen v Charles Barber
On 25th January 1871
At Portland Head } – Bestiality with mare
1. Sergeant John J[ames] Fitzpatrick at Windsor – apprehended prisoner on 20th February – told him charge (of ?) (Mayor ? [meaning ‘mare’ ?] asked me what it meant – I explained it to him. Said he had nothing to say to charge. 5
2. Constable J [John] McNeally with prisoner when arrested by (1), [Fitzpatrick] heard explanation. Prisoner left in my custody when (1) went away. He asked what was against him. I told him having connexion with mare. He said he was up to trick with mare. He said put up to it on Hunter. He said he did nothing to mare. On way to watch house – I told him person coming against him – he said in Sydney 16 years.
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3. John Dean. Farmer at Hawkesbury – known prisoner long time, 10 or 12 years – 16 or 18 years old.
Saw him on 25th January with a mare at a log, at the back part – standing with mare’s backside towards prisoner’s front – he had hold of mare’s tail – he was trying to hold the tail on right side – his left hand on mare’s hip bone – I went along 110 yards off when first saw him – came behind a big gum tree – he came down & did his trowsers up. I said what were [you] doing – he said nothing. I said how can you say that when I & this chap saw you – I said I should tell the constable. –
He was moving while behind mare – close up – can’t say whether person entered the mare – he got down & put the mare back – saw his hand go down as if buttoning up – know the mare, she is a quiet animal.
Cross-examined. JFH [Judge JF Hargrave ?] I left him there with the mare.
4. Adam De Roham labourer with Mr Dean (3) know prisoner, saw him with a mare on 25th January – I was with Mr Dean – saw prisoner on log with mare in front of him – 110 yards off – then went to 26 yards.
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He did not see us by a big gum tree – prisoner was standing on a log – pull the mare’s tail on one side, put his other hand to front of his trowsers – the mare was backed up against log – saw him working back and forwards, then mare went along a little – then he backed her again & went on again same way – Then a horse whinnied & prisoner turned around & saw us coming – he said he was doing nothing – when Mr Dean [said] we saw you – (then ?) – can’t swear (was ?) in mare, can’t swear whether his person in mare.
Cross-examined. JFH [Judge JF Hargrave ?] Saw.
Verdict guilty of attempt to (&c. ?) 2 years hard labour in Darlinghurst Gaol.
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The Sydney Morning Herald, Tue 9 May 1871 6
CENTRAL CRIMINAL COURT.
MONDAY.
Before his Honor Mr Justice Hargrave.
The Solicitor-General prosecuted for the Crown.
…
UNNATURAL OFFENCE.
Charles Barber, a half-caste aboriginal youth, was indicted for having, at Portland Heads, on the 25th January last [1871], committed an offence against nature. Prisoner pleaded not guilty. He was undefended. He was found guilty of an attempt to commit the crime, and was sentenced to two years’ imprisonment in Darlinghurst gaol.
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The Maitland Mercury and Hunter River General Advertiser, Thu 11 May 1871 7
CENTRAL CRIMINAL COURT.—MONDAY.
————
(Abridged from the Evening News.)
(Before his Honor Judge Hargrave.)
…
Charles Barter [sic], an aboriginal, sixteen years of age, was indicted for the commission of an unnatural crime at Portland Heads, near Windsor. He was convicted of the attempt, and sentenced to two years hard labour at Darlinghurst.
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The Sydney Mail and NSW Advertiser, Sat 13 May 1871 8
LAW AND POLICE.
Supreme Court.
…
CENTRAL CRIMINAL COURT.
Before his Honor Mr Justice Hargrave.
The Solicitor-General prosecuted for the Crown.
…
UNNATURAL OFFENCE.
Charles Barter [sic], a half-caste aboriginal youth, was indicted for having, at Portland Heads, on the 25th January last, committed an offence against nature. Prisoner pleaded not guilty. He was undefended. He was found guilty of an attempt to commit the crime, and was sentenced to two years’ imprisonment in Darlinghurst gaol.
1 The Sydney Herald, Fri 10 Mar 1871, p. 3.
2 SRNSW: NRS880, [9/6537], Supreme Court, Papers and depositions, SGD, May 1871, No. 208. Emphasis added.
3 SRNSW: NRS6032, [2/4391], Judiciary, JF Hargrave, J. Notebooks Criminal Causes (Darlinghurst), 1865-78, pp. 3-5. Emphasis added.
4 Mn: Archb. p. 589
5 Mn: Cross-examined: part in (?) on to gaol, part in Sydney
6 The Sydney Morning Herald, Tue 9 May 1871, p. 2.
7 The Maitland Mercury and Hunter River General Advertiser, Thu 11 May 1871, p. 2.
8 The Sydney Mail and NSW Advertiser, Sat 13 May 1871, p.334.