The Sydney Morning Herald, Thu 5 Sep 1872 ¹

CENTRAL POLICE COURT.
WEDNESDAY.

BEFORE the Mayor and the Police Magistrate, with Messrs Day, Curran, Smart, and Meares.
…
    On the summons paper were three cases, one of which was withdrawn. Patrick Holden and John Cooney appeared to answer an information in which William Camphin, a detective constable of the police force, charged Holden that on the 28th August he did indecently assault one Elizabeth Doolan, and that Cooney did aid and abet Holden in the commission of the said offence. Camphin deposed that, about a quarter-past 12 o’clock in the morning of the 28th ultimo, he and detective Lyons being on duty at the corner of Elizabeth-street and Cleveland-street, he saw a cab coming towards them, from the direction of Baptist’s gardens, from which proceeded a female voice demanding to be let out; the cab stopped, and he heard the cabman say to the persons inside, “Don’t break the windows;” a voice from inside said, “Drive us to the Common,” and the driver proceeded; witness called upon the driver to stop, when Cooney (the driver) replied that he had no time, or words to that effect; witness and Lyons followed the cab and stopped it; inside were the defendant Holden and a woman named Doolan; in reply to a question, Holden said that nothing was the matter, but the woman jumped out and made a complaint, in consequence whereof he laid this information against the defendants. Detective-constable Lyons gave similar evidence. Elizabeth Doolan deposed that she is a widow, and resides at Surry Hills; she has under her care an infant in a very delicate state of health; on the night of the 27th or the morning of the 28th of last month, she went to a public-house for some gin to give the child, and found it closed; a cab was standing at the door, and a man sat in the cab; she told the driver what she wanted, when the man inside told her to get into the cab and he would take her where she could get some gin; she got in, and when they had got near to Baptist’s Gardens,  the man committed the assault of which she complained; she resisted, caught him by the whiskers, and called out; the driver pulled up and said that he did not want his windows broken; the man inside told him to drive to the Common, and he drove on again; the cab stopped again, and she saw the detectives, to whom she made complaint. Cooney was discharged, and Holden was committed for trial at the Quarter Sessions. 

~ ~ ~ ~ ~

Empire, Wed 9 Oct 1872 ²

COURT OF QUARTER SESSIONS.—TUESDAY.
————
(Before His Honor Mr District Court Judge Dowling.)

    Mr Foster prosecuted on behalf of the Crown.
…

INDECENT ASSAULT.

    Patrick Holden and John Coony [sic] were charged with having, on the 28th of August, 1871, [sic] unlawfully and indecently assaulted one Elizabeth Doolan. A second count charged the prisoners with unlawfully assaulting the said Elizabeth Doolan. Both prisoners pleaded not guilty, and were defended by Mr W Roberts. Mr Roberts raised an objection to the prisoner, Cooney, being placed upon his trial, as he had been twice examined at the police court for being concerned in this offence and discharged; and, because he happened to be within the precincts of the court as a witness, he was, without any previous intimation, placed upon his trial. His Honor said that the Chief Justice of the colony had frequently decided that the Attorney-General had the power to place a prisoner upon his trial without a previous examination. For the present purpose however, he would decide that the prisoner Cooney ought to plead, but he would take a note of Mr Robert’s objection. The circumstances of the case are as follows: Prosecutrix is a widow, residing at Surry Hills, and on the evening of the day in question, she came out about the time when the public houses were being closed for the night, in order that she might get some gin for a child, who was lying at her home very sick. She went to the door of a public house, where Holden was standing; a cab which Cooney was the driver being also there. Prosecutrix could not get into the public-house, and Holden asked her what she wanted, when she told him that she was endeavouring to get some gin for a sick child. Holden then told her that if she would get into the cab he would take her to where she could get the gin. She consented to do this, and as soon as she had done so, the prisoner Cooney jumped on to his seat and drove off with Holden and prosecutrix. When they had gone a short distance Holden began to take liberties with prosecutrix, upon which she began to cry out. For a distance of about 200 yards she was heard to shriek and cry to the cabman to stop and let her out. She then began to beat upon the windows of the cab, and Cooney called out to her not to break the windows. Holden then sang out to Cooney to drive on to the Common. About this time the cab was by two detectives—Lyons and Camphin—who stopped it on hearing a woman crying out. Prosecutrix then got out, and the detectives, after getting the number of the cab, and the names of the two prisoners, went with her to her house, where they found a girl about eleven years of age, nursing a child a few months old. Prosecutrix was cross-examined by Mr Roberts, during the course of which she admitted that she had said, at the police court, that she had no complaint to make against Cooney. She, however, adhered to her original statement with regard the circumstances under which the offence was committed. Prisoner called one witness, a Mr Barnes, who stated that each of the prisoners had borne very good characters. Mr Roberts addressed the jury for the defence, and the Crown Prosecutor replied. The jury then retired to consider their verdict, and after an absence of nearly one hour and a-half, returned into court with a verdict of guilty of indecent assault against Holden. A verdict of not guilty on both counts was returned in the case of the prisoner Cooney. His Honor then sentenced the prisoner to be imprisoned in Darlinghurst gaol for three calendar months.

  The court then adjourned till Friday next, at 10 o’clock, for the hearing of appeals.

~ ~ ~ ~ ~

Evening News, Wed 9 Oct 1872 ³

QUARTER SESSIONS.—
TUESDAY
————

INDECENT ASSAULT.

    Patrick Holden and John Coony [sic] were charged with having, on the 28th of August, 1871, unlawfully and indecently assaulted one Elizabeth Doolan. A second count charged the prisoners with unlawfully assaulting the said Elizabeth Doolan. Both prisoners pleaded not guilty, and were defended by Mr W Roberts, who addressed the jury for the defence, and the Crown Prosecutor replied. The jury then retired to consider their verdict, and after an absence of nearly one hour and a-half, returned into court with a verdict of guilty of indecent assault against Holden. A verdict of not guilty on both counts was returned in the case of the prisoner Cooney. His Honor then sentenced the prisoner to be imprisoned in Darlinghurst gaol for three calendar months.

    The court then adjourned till Friday next, at 10 o’clock, for the hearings of appeals.

~ ~ ~ ~ ~

The Sydney Morning Herald, Wed 9 Oct 1872 ⁴

LAW.
———◦———
COURT OF QUARTER SESSIONS.
TUESDAY.

Before Mr District Court Judge Dowling.
    Mr WJ Foster prosecuted for the Crown.
…

INDECENT ASSAULT.

    Patrick Holden and John Cooney were charged with having, at Sydney, on the 28th of August last, unlawfully and indecently assaulted one Elizabeth Doolan. There was a second count for common assault.

    The prisoner Holden appeared which called on his recognizances, and being called upon to plead, pleaded not guilty.

    John Cooney was, at the instance of the Crown Prosecutor, also called upon by the orders of the Acting Clerk of the Peace, Mr Isaacs, and on his coming into Court was called upon (in the ordinary form to plead) as if he had been committed to stand his trial by the magistrates for the offence with which he was now charged.

    Mr William Roberts (solicitor), who appeared for Patrick Holden, said that, before the Court took Cooney’s plea, he desired to take the Judge’s ruling as to whether it was correct for the Crown to place a man upon his trial without previous investigation had before a magistrates’ Court, and due committal made, according to the provisions of Sir John Jervie’s Act. He submitted that the course proposed to be taken by the Crown was irregular. John Cooney had been twice brought before a magistrates’ Court on the charge now proposed to be preferred against him in this Court, and on both occasions, by two different magistrates, had the case against the man Cooney been heard, and the prisoner Cooney discharged. He considered the course now taken to be unprecedented.

    The Crown Prosecutor objected to Mr Roberts being heard if he was there only as the advocate for the prisoner Holden.

    Mr Roberts said: I appear for both of these men.

    The Crown Prosecutor, in that case, did not object to Mr Roberts being heard on Cooney’s behalf.

    Mr Roberts repeated that the course the Crown proposed to adopt in respect of Cooney was unprecedented. It was one that, apart from it evident irregularity, was extremely harsh and unjust, when it was borne in mind that Cooney had been twice discharged by a magisterial court. It was, moreover, a course which, he submitted, materially embarrassed the defendant Holden in the defence he was fairly entitled to offer.

    The Judge thought it a rather unusual course, but it had nevertheless been held that a committal was not in all cases indispensable. The Attorney-General had power at common law to put any man on his trial for what the Crown might be prepared to prove against him.

    Mr Roberts granted that the case of perjury committed in the Courts or in contempts, but these were exceptional cases. In all others it was provided by statute that the persons to be tried should first have had the charges to be preferred against them investigated before the magistrates.

    The Judge said: the Chief Justice had decided that persons who had not been committed by the magistrates’ court could nevertheless be placed upon their trial by the Attorney-General.

    The Crown Prosecutor said: It had been ruled so in several instances—in the case of the Queen against Bennett for example. Parties who had been so put upon their trial had been prosecuted to conviction.

    Mr Roberts confessed that he had never heard of such a thing before. If this were the case what use was Sir John Jervies’s Act?

    The Judge said: that there would be no objections to a postponement if the advocate moved for it, but his objection to the course taken by the Crown could not be now sustained.

    Mr Roberts said: that he should not apply to the Court for a postponement if his Honor held that to be the law.

    The Judge: I hold that the defendant, John Cooney, may be called upon to plead.

    Mr W Roberts: Perhaps your Honor will take a note of my objection.

    The Judge said he would do so.

    The defendant Cooney then pleaded “Not guilty.”

    The Crown Prosecutor stated the facts to the jury. There were two counts—one for indecent assault, and one for a common assault. In a misdemeanour such as this the principal and his associate, or accomplice, were in the eyes of the law equally guilty, if a guilty consciousness were proved against him. The charge was that the prisoner Holden had committed the offence with which he was charged in Cooney’s cab; and the question as regarded Cooney, was did Cooney lend himself to the commission of the offence charged? If he did know what was going on in his cab he was guilty, and the law held that he did in that case, “assist.” The learned counsel then detailed the facts to be proved in evidence—such as have been already made public.

    The case for the Crown was supported by the evidence of detective officers William Camphin and Patrick Lyons, and Mrs Doolan. 

    For the defence, Mr Roberts called a Mr Byrnes, who spoke to the general good character of the prisoner Holden, but admitted that he was a man who had got into trouble once or twice, when “on the spree.” Cooney was said to be a respectable married man with two children.

    Mr Roberts addressed the jury, commenting on what he considered to be the meddlesome conduct of detective Camphin in the getting up of this case. He contended that the charge would never have been heard of at all if the two policemen had not officiously stopped the cab when they heard the woman call out. It was a great hardship to Cooney that he should be thus suddenly placed upon his trial without that committal at a preliminary investigation required by statute law—in Sir John Jervies’s Act. Cooney was now for the third on his trial for an offence in respect of which, after full investigation before two experienced magistrates, he had been twice discharged. It looked very much as if the course taken by the Crown was taken to deprive Holden of Cooney’s evidence. The jury would, however, do justice to the case, and would bear in mind that the charge was initiated by the over-zealous detective Camphin. If it was the law that any man could be tried at the Quarter Session or gaol delivery for what there had been a non-committal at the Courts of Petty Sessions, the Legislature should look to it at once, for no man would be safe. The advocate continued an able speech by analyzing [sic] the evidence of the principal witness for the Crown, with a view to discrediting that evidence in its main particulars. He declared Cooney to have been clearly the victim of circumstances, and maintained that he was wholly untouched by the evidence.

    The Crown Prosecutor replied.

    The Judge summed up, carefully recapitulating all the particulars.

    The jury retired at twenty-five minutes past 2 o’clock, and (at their reappearance in Court at twenty-two minutes to 4) returned a verdict of “guilty of indecent assault” against Holden, and, as against Cooney, “not guilty.”

    The man Cooney was discharged.

    Sentence: To be imprisoned in Darlinghurst Gaol for three calendar months, with hard labour.

    Remanded to next sessions:—John Dakin and M Knapp, severally charged with stealing, were remanded until the next sitting of the Court, in the absence of witnesses; bail in each case allowed.

~ ~ ~ ~ ~

Patrick J. Holden, Gaol photo sheet ⁵

---

Gaol Photo Sheet - Transcribed Details

No. 613
Number on Gaol register: 3972/72

Portrait Taken: 27th December 1872

Name: Patrick Holden

Native place: Sydney Year of birth: 1841 Arrived        Ship:  in Colony }   Year:  Trade or occupation previous to conviction  } Mail driver Religion: R C. Education, degree of: R&W Colour of hair: Fair Colour of eyes: Blue Height: 5' 6½" Weight     On committal: 166 lbs in lbs     }  On discharge:  Special Marks: Top of the fore finger of right-hand injured. Heart tattooed on left forearm. Scar over left eye. Two slight scars on left knee. Several of the back teeth out. General Description:

Where and when tried: Offence: Sentence: Remarks:

(No. of previous Portrait ... )  PRISON HISTORY
Where and When				Offence.	Sentence
Queanbeyan Q.S Tenterfield ditto ditto Sydney Q.S CPO ditto Sydney Q.S	26 24 24   5 19   5   8   5	2 4 3 4 12 7 2 6	1863 1879 1870 1870 1872 1875 1876 1876	Larceny Vagrancy Drunk (Obtain ?) goods by false pretences Stealing an axe Larceny Assault Steal from the person	6 months impris Maitland Gaol 1 month imprisonment 24 hours 6 months imprisonment 6 months Labor 3 months Labor 2 months C 18 months L Maitland Gaol

 

---

¹  The Sydney Morning Herald, Thu 5 Sep 1872, p. 2. Emphasis added.

²  Empire, Wed 9 Oct 1872, p. 3. Emphasis added.

³  Evening News, (Sydney, NSW), Wed 9 Oct 1872, p. 3.

⁴  The Sydney Morning Herald, Wed 9 Oct 1872, p. 2. Emphasis added.

⁵  SRNSW: NRS2138, [3/5954B], Darlinghurst Gaol photographic description book, 1872-1873, No. 3927, p. 1, R5097.

---