1880, James Miller

Depositions for James Miller 2 Apr 1880 Wagga Wagga trial ¹

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

Depositions of Witnesses.

TO WIT.
The examination of Michael King Senior Constable of Narrandera in the Colony of New South Wales, Benjamin Hall of Narrandera, William Slater of Narrandera, Daniel Joseph Carland a Constable of Narrandera and John Shadwell Keen of Narrandera in the said Colony, taken on oath this 3rd day of December in the year of Our Lord one thousand eight hundred and seventy nine at Narrandera 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 James Miller who is charged this day before us for that he the said James Miller on the first day of December at Narrandera in the said Colony, did feloniously attempt to commit sodomy upon one Benjamin Hall.

Petty Sessions Narrandera
3rd December 1879

New South Wales,
TO WIT. }

James Miller in custody charged with attempting to commit sodomy.

Michael King being duly sworn saith as follows:– I am a Senior Constable stationed at Narrandera. Yesterday morning Benjamin Hall, baker in Narrandera reported to me at the Police Station that the prisoner now before the Court made an attempt to commit sodomy upon him at 10 o’clock the night before in the Bake House. And that he had knocked him down, and that prisoner had immediately left, leaving his hat and comforter behind in the house. I then made search for the prisoner with some more of the Police and upon my return to the town about 12 o’clock yesterday after searching for the prisoner I met Constable Carland who informed me that he found the prisoner coming out of the

bush onto the railway line and took him to the Police Station. I then brought Hall into the presence of the prisoner and asked Hall if the prisoner was the man who attempted to commit sodomy upon him. He said “He is, that is the man.” He came into my Bake House and laid down alongside of me. He first felt me in front at the privates and again at the back. I jumped up and said “What do you mean?” I then went to sleep again. After I did so he unbuttoned my belt, let my trousers down and put his penis between the cheeks of my backside. I then said “You bloody wretch – what do you mean?”, and put my hand back, caught him by the penis and bent it upwards. I also struck him under the eye and he then cleared out, leaving his hat and comforter at the door, inside. I then arrested the prisoner on a charge of having committed attempted to commit sodomy

on one Benjamin Hall on Monday night the 1st instant. In answer to the charge he said “I do not recollect what I was doing.” After taking him inside the lock up prisoner said to Hall “If you had given me a good kicking if I was not doing what was right it would serve me right. You got it Ben, do what you like with me.” I searched the prisoner and found nothing of any importance.

[Signed] Michael King.

Sworn before us at Narrandera this 3rd day of December 1879.
[Signed] Albert Nathan Jonsen, JP, John L King, JP.

Benjamin Hall a Baker residing in Narrandera being duly sworn saith as follows:– I know the prisoner James Miller. He came to me on Monday the 1st instant about 12 o’clock and asked for some bread and a bit of meat to take him on the road, and I said “Yes.” I immediately employed him to make dough for me for ten shillings on Monday night. He came to the Bake House and made the dough, he then went away. He asked me for the ten shillings; I refused it to him, not having finished his work, not having taken the bread out. About half past ten o’clock I lay down in the corner of the Bake House on the floor. I told the prisoner to lay down. The first thing I remember was feeling his hand on my person. I said to him “What are you up to?” I pushed him away, saying “Do you come from the Derwent, or where do you come from?” After this he unbuckled my belt and pulled my trousers down. He then put his penis between the cheeks of my posterior and I caught hold of it and tried to hold him by it. He ran for the door. I hit him and knocked him down and kicked him. I told him if he was

not off at once I would put him in the lock up. He then went off without his boots, hat or comforter. He cleared out and I was told that if I did not report it to the police I would be taken myself. I then came direct to the police and reported the matter. This was on Tuesday morning. He must have taken his boots away during the night while I was at the Police Station on Tuesday morning. I have heard that prisoner came for his hat and comforter, and I saw prisoner go across the street about that time and I sent word to the police. This was between 9 and 10 o’clock in the morning. I was present when the prisoner was arrested. I was quite sober but I can’t say whether prisoner was sober or not.

To Prisoner: You were not drunk when you came back at about 10 o’clock.
[Signed] Benjamin Hall.

Sworn before us at Narrandera this 3rd December 1879.
[Signed] Albert N Jonsen, JP John L King, JP.

William Slater being duly sworn saith:– I am a baker living in Narrandera. I know the prisoner, I believe I saw him yesterday morning and I saw he I told him he had better clear out as Hall had gone to report him to the police. He walked away. I have not seen him since till now. I know both parties and know of no enmity between them.

[Signed] William Slater.

Sworn before us at Narrandera this 3rd December 1879.
[Signed] Albert N Jonsen, JP, John L King, JP.

Daniel Joseph Carland a Constable of Police stationed at Narrandera being duly sworn saith as follows:– Yesterday morning I went down the Hay Road and back along the railway line and found the prisoner coming onto the line coming from the other side about three quarter of a mile from here. He said he was coming into the town. I told him that Constable King wanted to see him. He came with me to the Police Station. This was about 11 or 12 o’clock yesterday.

[Signed] DJ Carland.

Sworn before us at Narrandera this 3rd December 1879.
[Signed] Albert N Jonsen, JP, John L King, JP.

John Shadwell Keen being duly sworn saith:– I am a duly qualified medical practitioner. At about quarter to one o’clock yesterday the 2nd instant I was called by the Police to examine two men. James Miller the prisoner now before the Court and Benjamin Hall. I examined the prisoner first, (with his consent) and found the end of his penis swollen but not inflamed. His penis and the parts thereto bore the signs of recent ablution. I asked him when he washed himself last. He said “Not for three weeks.” The swelling might be caused by personal manipulation. I afterwards examined Hall and found him very dirty about the buttocks. The hair was coagulated with several spots of blood but there is nothing unnatural in this for a man who does not wash himself. The prisoner’s urethra was in a healthy state and the blood upon Hall’s buttocks could not have come therefrom. The swelling on the penis of the prisoner

would could be caused by any person giving it a rip or a pull.

[Signed] J Shadwell Keen.

Sworn before us at Narrandera this 3rd December 1879.
[Signed] Albert N Jonsen, JP, John L King, JP.

Benjamin Hall being recalled on his former oath saith as follows:– I and two other bakers gave prisoner two and six each to help him on the road. This was on Monday about dinner time. I then offered him ten shillings to make dough and cut the wood for me, which he accepted and he did it and I told him I would pay him in the morning. When he asked me for the ten shillings he said he had drank the seven and sixpence.

[Signed] Benjamin Hall.

Sworn before us at Narrandera this 3rd December 1879.
[Signed] Albert N Jonsen, JP, John L King, JP.

Committed for trial at the next Court of General Assizes to be holden at Wagga Wagga on the 1st April 1880.
[Signed] Albert N Jonsen, JP, John L King, JP.

~ ~ ~ ~ ~

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

Statement of the Accused.

New South Wales,
TO WIT. }

James Miller stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 3rd day of December in the year of Our Lord one thousand eight hundred and seventy nine for that he, the said James Miller on the 1st day of December instant at Narrandera, in the Colony, did feloniously attempt to commit sodomy upon one Benjamin Hall 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 and I, having also stated to the accused and given him clearly to understand that he had nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trial, notwithstanding such promise or threat; and the said charge being read to the said James Miller and the witnesses for the prosecution Michael King, Benjamin Hall, William Slater, Daniel Joseph Carland and John Shadwell Keen being severally examined in his presence, the said James Miller 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 Miller saith as follows:– “I am totally innocent.”

[Signed] James Miller.

Taken before me, at Narrandera in the said Colony, the day and year first abovementioned.
[Signed] Albert N Jonsen, JP.

~ ~ ~ ~ ~

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

Recognizance to give Evidence.

New South Wales,
TO WIT. }

Be it remembered, that on the 3rd day of December in the year of Our Lord one thousand eight hundred and seventy nine Michael King a Senior Constable of the Police Force, Benjamin Hall of Narrandera in the Colony of New South Wales, William Slater of Narrandera in the said Colony, and Daniel Joseph Carland of Narrandera in the said Colony, personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledged themselves to owe Our Sovereign Lady the Queen the sum of

FORTY POUNDS EACH,

of good and lawful money of Great Britain, to be made and levied on their Goods and Chattels, Lands and Tenements, to the use of our said Lady the Queen, her Heirs and Successors, if they the said before mentioned persons shall fail in the condition indorsed.

Taken and acknowledged, the day and year first abovementioned, at Narrandera in the said Colony, before me.
[Signed] Albert N Jonsen, JP.

The condition of the within written Recognizance is such, that whereas James Miller was this day charged before Albert Nathan Jonsen esquire one of Her Majesty’s Justices of the Peace for the said Colony, with attempt to commit sodomy.

If therefore, they the before mentioned persons shall appear at the next Court of General Assizes to be holden at Wagga, in and for the Colony of New South Wales, on the 1st day of April next, at nine of the lock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said James Miller for the offence aforesaid, to the jurors who shall pass upon the trial of the said James Miller then the said Recognizance to be void, or else to stand in full force and virtue.

[Signed] Albert N Jonsen, JP.

~ ~ ~ ~ ~

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

Recognizance to give Evidence.

New South Wales,
TO WIT. }

Be it remembered, that on the 4th day of December in the year of Our Lord one thousand eight hundred and seventy nine John Shadwell Keen of Narrandera in the Colony of New South Wales, personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledged themselves [himself] to owe Our Sovereign Lady the Queen the sum of

FORTY POUNDS EACH, [sic]

Taken and acknowledged, the day and year first abovementioned, at Narrandera in the said Colony, before me.
[Signed] John L King, JP.

The condition of the within written Recognizance is such, that whereas James Miller was this day charged before Albert Nathan Jonsen and John L King esquire, two of Her Majesty’s Justices of the Peace for the said Colony, with attempt to commit sodomy.

If therefore, they the before mentioned persons shall appear at the next Court of General Assizes to be holden at Wagga in an for the Colony of New South Wales, on the first day of April next, at nine of the clock in the forenoon, and then and there give such evidence as they know, upon the information to be then and there preferred against the said James Miller for the offence aforesaid, to the jurors who shall pass upon the trial of the said James Miller then the said Recognizance to be void, or else to stand in full force and virtue.

[Signed] John L King, JP.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

Wagga Wagga CC
1st April 1879
No. 710
Depositions.
Regina No. 4
v.
James Miller
Attempt to commit sodomy
See within [initialled] R[obert] W[isdom, AG]
11/12/79
Committed at: Narrandera
on: 3 December 1879

~ ~ ~ ~ ~

Attempt to commit Sodomy

[Initialled] RW [AG]
11/12/79

~ ~ ~ ~ ~

Justice WC Windeyer’s Notebook ²

[Wagga, 2 April 1880]
James Miller attempting to commit an unnatural offence with Benjamin Hall
1st December 1879 at Narrandera

Michael King. Senior Constable at Narrandera, was brought to me by a police officer 2nd December. I brought him to Benjamin Hall who said that on the night of 1st December he the (prosecutor ?) was lying down in his bakehouse & that the prisoner laid down along with him – about 10 pm. The prosecutor said “the prisoner first felt me in front & again behind. I jumped up & said what do you mean you bloody wretch. I afterwards laid down & went

to sleep again when the prisoner unbuttoned my belt & & let my trowsers down, put his person between the cheeks of my backside.” I then arrested the prisoner on charge of attempting to commit sodomy. Prisoner said in answer to charge “I can not recollect what I was doing.” The prisoner afterwards said “Then if I was doing wrong you would serve me right if you gave me a good kick for him, got it (Ben ?) you can do what you like with me.”

Cross-examined. I apprehended you close to the lock up.

I swear I did not ask you how long was it since you had a woman.

Constable Daniel [Joseph] Carlin. ³ At Narrandera. Know prisoner. Saw him on 2nd December ¾ mile from Narrandera at 11 am – railway line walking towards Narrandera. I took him to King.

Benjamin Hall.

Michael King by me. I have had no dealings with prisoner.

Cross-examined by prisoner. Did not (find ?) you in (impropriety ?)

Benjamin Hall. Baker at Narrandera. Saw him on 1st December. He asked me for a bit of bread & meat to take (him ?) (for ?) (the ?) road. I said yes Jimmy & gave him a drink. (?) of us gave him 7/6 to clear out

I told him I would give him 10/- if he would do a night’s work. He made dough & went out. At 10 he came & asked for (his ?) money. I would not give him (?). I was lying down & he came & laid down beside me. All at once I felt his hand on (me ?). I felt nothing for an hour. Presently whilst I was (dozing ?) half asleep my belt came undone & he pulled my trowsers down & I felt his person behind my posterior. I turned round & caught hold of him. He made a rush for the door he got & I caught him at the door & struck him & knocked him down & chucked his things out. He left his

boots & hat & comforter. I can’t say what state he was, he seemed sober, might have been drunk (or ?) (not ?).

Cross-examined. We had no angry words. I did not strike you till after you had assaulted me. I did ask (for ?) for 2/6 to get a bottle of (stuff ?) for the (rheumatics ?). I did not say I would be (?) with you. I twisted round & caught hold of his person. Mr Wyman discharged me the next day. You did not speak to me the next morning.

William Slater. Baker at Narrandera for (3 ?) weeks. On morning of 2nd December saw prisoner (going ?) (out ?) Hall’s bake house about 7. Asked him

what he wanted. He said to see Ben. I told him that he had better get away as Ben had gone to King to report him. He walked away & I went in.

Cross-examined. (You ?) asked (me ?) what for. I said that was best known to your two selves. I did not sleep in the bakehouse that night.

Dr [John Shadwell] Keen. Legally Qualified Medical Practitioner at Narrandera. (Saw ?) prisoner on 2nd December at 12.45 pm. Examined him – his person. Found some swelling at end of the penis. Cleanliness of the parts appeared recently washed. Glands & prepuce swollen. A (?) (?) do it. There was a mark of (?) blow on his right nose.

Cross-examined. I think the prisoner has had his nose broken at some time.

Saw no blood stains on shirt. No wound on penis. You said you had washed recently. May have said a fortnight. On looking at his (?) he washed he said 3 weeks ago.

Verdict Guilty. Three previous sentences against this man, for assault with intent to ravish, (2) assault with intent to rob, (3) violent assault – April 3rd.

Sentence. 2 years hard labour in Goulburn Gaol.

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Australian Town and Country Journal, Sat 10 Apr 1880 ⁴

WAGGA WAGGA.

6 April.

…
The criminal business of the Circuit Court was concluded on Saturday evening. The severity of the sentences passed by his Honor Judge Windeyer, has excited some comment, mainly in commendation of the course take by his Honor.

The visit of the judge has been marked by a circumstance which has been provocative of much fun. On Sunday night some thief made a raid upon the Commercial Hotel, where his Honor, Mr Buchanan, and some other barristers were staying. The hotel keeper was relieved of some blankets and other household articles, whilst the judge’s boots, and those of Mr Buchanan were also seized as fairly portable and presentable spoil. The police had information of the theft, but no clue could be obtained as to the destination of the missing legal understandings. By way of reflection on the inertness of our local police, it is said his Honor remarked that not one of the force had taken the trouble to wait upon him for a description of the stolen property. That a pair of boots had been stolen appeared to be enough for their knowledge; but as to whether they were black boots or white boots, or shoes, and not boots at all, they never troubled themselves to inquire. The renowned Buchanan was, I believe, vehemently indignant at the almost sacrilege of the theft—talked of Wagga as a little village whose every face and nook and corner ought to be known to the police, so that the stolen boots might be pounced upon at once. It is said, too, that both judge and barrister the most galling part of the business was the thought that the story would get into every adjective paper in the country, so that one sees that the lofty contempt for the said papers, which is so frequently on the public tongue of men of that ilk, doesn’t extend to all the circumstances of their career. I can fancy visions of a punch cartoon this week disturbing the slumbers of both gentlemen as they think of the loss of their boots.

¹ SRNSW: NRS880, [9/6650], Supreme Court, Papers and depositions, Wagga Wagga, 1879, No. 710. Emphasis added.

² SRNSW: NRS7855, [2/7604], Judiciary, WC Windeyer, J. Notebooks Circuit Courts, 1876-95, pp. 74-80. Emphasis added.

³ Carland in transcript of depositions.

⁴ Australian Town and Country Journal, Sat 10 Apr 1880, p. 712.

Sodomy