The Bowral Free Press, Sat 2 Apr 1887 1
MITTAGONG POLICE COURT.
Monday, March 28, 1887.
[Before] F[rederick] R[obertson] Wilshire, PM, and Messrs H Childs, AJ Gerard, JsP.
…
William Brennan and Henry Monk were charged by Constable Noble with having attempted an unnatural offence at Bowral, on the night of the 26th instant. After the hearing of the evidence of the apprehending constable, accused were committed to take their trial at the Circuit Court, Goulburn, on the 22nd April. Bail was allowed; self in £80, and two sureties in £40 each, or one in £80 in each case. (The case was heard with closed doors – press excepted.)
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Depositions for Henry Monk and William McDermott Brennan 22 Apr 1887 Goulburn trial 2
(M., 11 and 12 Vict., Cap. 42.)
Depositions of Witnesses.
New South Wales, Mittagong
TO WIT. }
The examination of Constable Charles Noble of Mittagong in the Colony of New South Wales, Constable John L Waters, Charles William Baylis of Bowral and David Ellesmore of Bowral, in the said Colony, taken on Monday, this 28th day of April in the year of Our Lord one thousand eight hundred and eighty seven at Mittagong 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 Henry Monk and William McDermott Brennan who is [sic] charged this day before him, for that the said Henry Monk and William McDermott Brennan, on the 26th day of March at Bowral in the said Colony, that the said Henry Monk did assault William McDermott Brennan, with intent wickedly, and against the order of nature to commit the abominable crime of buggery with the consent of the said William McDermott Brennan.
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Police Office Mittagong
28th March 1887
Before Frederick Robertson Wilshire, PM, H Childs, JP, Alfred Gerard, JP.
Henry Monk and William McDermott Brennan charged sodomy. That Henry Monk on 26 March 1887 at Bowral did assault William McDermott Brennan, with intent wickedly, and against the order of nature to commit the abominable crime of buggery with the consent of the said William McDermott Brennan.
Reproduction: Peter de Waal
Charles Noble being duly sworn states:– I am a Constable stationed at Bowral, at about 11.30 pm 26th March 1887 I was on duty in Bendooley Street Bowral, and hearing some noise amongst some bushes in Banyette Street. I went where the noise came from, there are three houses in Banyette Street. Prisoner Brennan lives in one of those houses. There is
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some scrub on the side of the street. I was patrolling round the streets which I usually do the last thing before going off duty. I listened to hear what it was amongst the bushes. When I heard Brennan say “Fuck me Harry. Fuck me, or else I will fuck.” I looked under the bushes and there saw the two prisoners, Brennan was on his hands and knees, his trousers was let down and his jacket and shirt was on his shoulders. He was completely naked from his waist to his knees. I heard Brennan say “It is too thick.” Monk said, “Open your legs.” Monk was kneeling close behind Brennan, his trousers were undone. I struck a match and went round the bushes and took them into custody. They both began to cry. I charged them with committing an unnatural offence. Monk said “You might look over this. Think of the disgrace it will cause to my sisters.”
Brennan replied “For God’s sake think of my dying father and my poor mother.” I took them to the lock up at Bowral and locked Monk up. I then searched Brennan and did find on him one cigar, a small flask of
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brandy – Exhibit A., and other articles. Brennan said “I have got one shilling worth of cigars.” I said “You have only one here.” I then took him to Mittagong. When I was locking Monk up he shouted to Brennan “Don’t admit anything Billy!”
When I took Brennan to Mittagong I returned to Bowral in company with Constable Waters and took Monk to the place where the offence was committed. I told him I was going to ask him a question, but he need not answer it unless he liked, as it might be given in evidence against him. I then asked him (Monk) if he remembered being there last night. He replied “I remember being somewhere.” But “I don’t know whether it was here or not.” This was about three and a half hours after I arrested him. We lit a candle and searched the place and found, the flask containing brandy marked Bowral. I asked Monk if he knew anything about it. He replied “I bought one like that at Baylis tonight.” We also found five cigars in paper marked Exhibit C. There were footprints on the ground as of toe marks, and the grass was trodden down which I pointed out in the presence of the prisoner Monk. He said nothing.
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Constable Waters was with me and saw the brandy and cigars found where the offence took place.
By prisoner Monk: I found a piece of stone which would have weighed about two pounds. I picked it up to strike a match on. I walked here to Mittagong from Bowral and rode back in a Goods Train.
Brennan: Has no questions to ask.
By Snr Sgt Fowler: The prisoners were more or less under the influence of liquor.
[Signed] Charles Noble.
Sworn before us at Mittagong this 28th March 1887, [Signed] FR Wilshire, PM. H Childs, JP. A Gerard, JP.
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John Lyster Waters a Police Constable stationed at Mittagong on oath states:– About 2 am on the 27th Instant, I accompanied Constable Noble to Bowral. We went by goods train. We took Monk with us from the Bowral lock up to a place in Banyette Street in the town of Bowral where Constable Noble pointed out in Monk’s presence as the spot where the offence had been committed by Monk and Brennan. I heard Constable Noble caution Monk, and state, he was going to ask him a question. We lit a candle and found Exhibit B & C and I saw a piece of stone, which I picked up. Constable Noble said “That is the stone I struck a match.” Monk wanted the stone to be given to him and I said “Mr Waters, you take charge of it.” I took the stone and left it at Bowral lock up. I saw some “toe” prints and foot prints on the ground, & the
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grass trodden down. There was some low scrub and trees about this portion of the street. There was a house about 7 yards. It was night and I could not well see.
By Prisoner Monk: I examined your boots and they were plain sodden.
Prisoner Brennan: Asked no questions.
[Signed] JL Waters.
Sworn before us at Mittagong this 28th March 1887.
[Signed] FR Wilshire, PM. H Childs, JP. Alfred Gerard, JP.
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Charles William Baylis being duly sworn states:– I am a licensed innkeeper residing at Bowral. I know the prisoner Monk now before the Court. I saw him at my hotel about 9 pm, 26th instant. He purchased a large flask of brandy which is similar to Exhibit B.
Brennan came into my Billiard Room about 8 pm or a little after. He asked for some person but I did not catch the name.
By Prisoner Monk: I saw you at my hotel about 9 pm.
By Prisoner Brennan: I did not serve you with any liquor at 10.50 pm 26th instant nor did I see you at that time.
By the Bench: I advised him (Monk) to go home early in the evening as I considered him under the influence of drink, but he returned later and appeared perfectly sober.
[Signed] CW Baylis.
Sworn before us at Mittagong this 28th March 1887.
[Signed] FR Wilshire, PM, H Childs, JP, A Gerard, JP.
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For the Defence by Prisoner Monk.
David Ellesmore being duly sworn states:– I am a tanner residing at Bowral. I saw prisoner Monk come in to the Oddfellows Hall about between 8 and half past on 26th instant and I saw him leave about 10 o’clock. I did not see him any more that night.
[Signed] David Ellesmore.
Sworn before us at Mittagong this 28th March 1887.
[Signed] FR Wilshire, PM, H Childs, JP, Alfred Gerard, JP.
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Prisoners Henry Monk and William McDermott Brennan stand committed to take their trial at the next Circuit Court to be held at Goulburn on 22 April 1887.
[Signed] FR Wilshire, PM, H Childs, JP, A Gerard, JP.
Bail allowed. Self In each case, self in £80 and two sureties in £40 each, or one in £80.
[Signed] FR Wilshire, PM, H Childs, JP, Alfred Gerard, JP.
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(N., 11 & 12 Vic., Cap. 42.)
Statement of the Accused.
New South Wales, Mittagong
TO WIT. }
Henry Monk stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 28th day of March in the year of Our Lord one thousand eight hundred and eighty seven for that he, the said Henry Monk on the 26th day of March at Bowral, in the said Colony, with sodomy [sic] and the examination of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the Accused having been caused to be read to him by me, the said Justice, (by/or) before whom such examination has been so completed; and I, the said Justice, having also stated to the accused and given him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trial, notwithstanding such promise or threat; and the said charge being read to the said Henry Monk, and the witnesses for the prosecution, Constable Charles Noble, Constable John L Waters, Charles W Baylis being severally examined in his presence, the said Henry Monk 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 Henry Monk saith as follows:– “I am innocent of the charge.”
Taken before me, at Mittagong, in the said Colony, the day and year first above mentioned.
[Signed] FR Wilshire, PM.
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(N., 11 & 12, Vic., Cap. 42.)
Statement of the Accused.
New South Wales, Mittagong
TO WIT. }
William McDermott Brennan stands charged before the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this 28th day of March in the year of Our Lord one thousand eight hundred and eighty seven for that he, the said William McDermott Brennan on the 26th day of March at Bowral, in the said Colony, with sodomy [sic] and the examinations of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the accused having been caused to be read to him by me, the said Justice, (by/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 him [sic] has nothing to hope from any promise of favour, and nothing to fear from any threats 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 William McDermott Brennan, and the witnesses for the prosecution Constable Charles Noble Constable John L Waters, Charles W Baylis being severally examined in his presence, the said William McDermott Brennan 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 William McDermott Brennan saith as follows:– “I reserve my defence.”
Taken before me, at Mittagong, in the said Colony, the day and year first above mentioned.
[Signed] FR Wilshire, PM.
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(O. 1, 11 & 12 Vic., Cap. 42.)
Recognizance to give Evidence.
New South Wales, Mittagong
TO WIT. }
Be it remembered, that on the 28th day of March in the year of Our Lord one thousand eight hundred and eighty seven Charles Noble and John L Waters, two Constables of the Police Force, Charles William Baylis of Bowral in the Colony of New South Wales, Innkeeper, David Ellesmore (for the defence) of Bowral in the said Colony, Tanner 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 above mentioned, at Mittagong in the said Colony, before me.
[Signed] FR Wilshire, PM.
The condition of the within written Recognizance is such, that whereas Henry Monk and William McDermott Brennan was this day charged before FR Wilshire, PM, H Childs, JP, Alfred Gerard, JP Esquires, three of Her Majesty’s Justices of the Peace for the said Colony, with sodomy.
If therefore, they the before mentioned persons shall appear at the next Circuit Court to be holden at Goulburn, in and for the Colony of New South Wales, on the 22nd day of April next, at nine of the clock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said Henry Monk and William McDermott Brennan for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Henry Monk and William McDermott Brennan then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] FR Wilshire, PM.
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(F. 1.)
Recognizance of Bail.
New South Wales, Mittagong
TO WIT. }
Be it remembered, that on the 28th day of March in the year of Our Lord one thousand eight hundred and eighty seven William McDermott Brennan of Bowral in the Colony of New South Wales, David Ellesmore, Labourer, of Bowral, in the said Colony, and Alfred Ellesmore of Bowral in the said Colony, Tanner, personally came before me, the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, and severally acknowledged themselves to owe to Our Sovereign Lady the Queen the several sums following (that is to say); the said William McDermott Brennan the sum of £80; and the said David Ellesmore and Alfred Ellesmore the sum of £40 each, of good and lawful money of Great Britain, to be made and levied of their several Goods and Chattels, Lands and Tenements, respectively, to the use of Our Said Lady the Queen, her Heirs and Successors, if the said William McDermott Brennan shall fail in the condition indorsed.
Taken and acknowledged, the day and year first above mentioned, at the Police Office, in the said Colony, before me.
[Signed] FR Wilshire, PM.
Condition in Ordinary Cases.
The condition of the within written Recognizance is such, that whereas the said William McDermott Brennan was on the 28th day of March instant, charged before FR Wilshire, PM, H Childs, JP, A Gerard, JP. Esquires, three of Her Majesty’s Justices of the Peace for the said Colony, with sodomy if therefore the said William McDermott Brennan will appear at the next Circuit Court to be holden at Goulburn in and for the Colony of New South Wales, on Friday the 22nd day of April, at nine of the clock in the forenoon and then and there surrender himself into the custody of the Keeper of the Gaol there, and plead to such information as may be filed against him for or in respect of the charge aforesaid, and take his trial upon the same, and not depart the said court without leave, – then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] FR Wilshire, PM.
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(F. 1.)
Recognizance of Bail.
New South Wales, Mittagong
TO WIT. }
Be it remembered, that on the 28th day of March, in the year of Our Lord one thousand eight hundred and eighty seven Henry Monk of Bowral, in the said Colony of New South Wales, Plasterer, William Frost, of Bowral, in the said Colony, Builder and John McCann, of Bowral in the said Colony, Labourer personally came before me, the undersigned one of Her Majesty’s Justices of the Peace for the said Colony, and severally acknowledged themselves to owe to Our Sovereign Lady the Queen the several sums following (that is to say); the said Henry Monk the sum of £80; and the said William Frost and John McCann the sum of forty pounds each, of good and lawful money of Great Britain, to be made and levied of their several Goods and Chattels, Lands and Tenements, respectively, to the use of Our Said Lady the Queen, her Heirs and Successors, if he the said Henry Monk shall fail in the condition indorsed.
Taken and acknowledged, the day and year first above mentioned, at the Police Office, in the said Colony, before me.
[Signed] FR Wilshire, PM.
Condition in Ordinary Cases.
The condition of the within written Recognizance is such, that whereas the said Henry Monk was on the 28th day of March instant charged before FR Wilshire, PM, H Childs, JP, A Gerard, JP, Esquires three of Her Majesty’s Justices of the Peace for the said Colony, with sodomy. If therefore the said Henry Monk will appear at the next Circuit Court to be holden at Goulburn in and for the Colony of New South Wales, on Friday the 22nd day of April, at nine of the clock in the forenoon, and then and there surrender himself into the custody of the Keeper of the Gaol there, and plead to such information as may be filed against him for or in respect of the charge aforesaid, and take his trial upon the same, and not depart the said court without leave, – then the said Recognizance to be void, or else to stand in full force and virtue.
[Signed] FR Wilshire, PM.
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Affidavit of Justification.
New South Wales, Mittagong
TO WIT. }
The Queen,
v.
Henry Monk and William McDermott Brennan
William Frost of Bowral in the Colony of New South Wales, and John McCann of Bowral in the said Colony, who severally offer themselves as Bail for the above named Henry Monk severally make oath and say: and first this deponent, the said William Frost for himself saith, I am a builder residing at Bowral in the said Colony, and I am worth property to the amount of forty pounds over and above all my just debts and liabilities, and over and above every other sum for which I am now bail or surety; and this deponent, the said John McCann for himself saith, I am a labourer residing at Bowral in the said Colony, and I am worth property to the amount of forty pounds, over and above all my just debts and liabilities, and over and above every other sum for which I am now bail or surety.
[Signed] William Frost, John McCann.
Sworn at the Police Station, Mittagong in the Colony aforesaid, by the said William Frost and John McCann the 28th day of March in the year of Our Lord one thousand eight hundred and eighty seven before me, the undersigned, one of Her Majesty’s Justices of the Peace in and for the Colony of New South Wales.
[Signed] FR Wilshire, PM.
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[On the depositions’ cover sheet is the following]
Circuit Court Goulburn
22nd April 1887
No. 67
Depositions.
Regina No. 1
v.
Henry Monk
and
William McDermott Brennan
See within [initialled] W[illiam] J[ohn] F[oster] AG
Committed at: Mittagong
on: 28th March 1887
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Attempt to commit Sodomy
1/4/87
[Initialled] WJF
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Justice FM Darley’s notebook 3 & 4
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Goulburn Circuit – Friday 22nd April 1887
The Queen v Henry Monk & William McDermott Brennan – Sec 60 Crim L. (Crim ?) Act – Attempt to commit Sodomy
Mr Armstrong Prosecutor for Crown
Mr Edmunds for prisoners.
Saturday 26th March 10.30 pm. Constable Noble was on duty at this place and found them at this place. Describes (position ?). Constable arrested both.
1st Witness Charles Nobel 5 examined Armstrong. Constable in NSW Police Force stationed at Bowral. I know both prisoners – I saw them together one night. I was on duty in Bendooley Street Bowral on
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Saturday 26th March 87 about 11.30 at night. There are 12 houses in this street. Houses extend as far as Banyette Street. They are a good distance from each other. I came up Banyette Street into Bendooley Street. I heard a slight noise in bush which attracted my attention – This was coming from a grove of bushes in a lane leading to the Glebe land. I thought at this time it was a drunken man. This lane leads to the prisoner Brennan’s & Mr (Perrott’s ?) houses. It is another not a thoroughfare but leads to the Glebe land. Brennan lives in the Glebe land. I heard noise on side of lane amongst some saplings & shrubs. There is a paling fence along lane.
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The bush extends about 4 yards into lane. I went to where noise came from & I listened to what it was when I heard Brennan say to Monk (I was then 3 or 4 yards off) “Fuck me Harry, fuck me or else I will fuck”. I heard Monk say “Open your legs Billy”. Brennan said “It is too thick”. I then looked under the bushes & saw Brennan. He was on his hands & knees. His trousers were down to his knees & his coat & vest lifted up on his shoulders. I could distinctly see his nakedness from his waist nearly down to his knees – Monk was kneeling close behind Brennan. I tried to strike a match on my pants (I could not see Monk doing this). The match would not strike. The prisoners heard the noise I made & both jumped up on to their feet – I picked up a piece of stone (produced) & struck
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a match on it. I went & took prisoners into custody. Monk’s trowsers were then all open up the front. I charged them with committing an unnatural offence. They both began to cry. Monk said “For God’s sake Mr Nobel look over it this time, look at the disgrace it will cause to my sisters.” He said that several times. Brennan said “For God’s sake Mr Nobel let me off this time, it is the first time ever you caught me doing anything, if you won’t have pity on me think of my dying Father & my poor Mother.” I took them to the Bowral lock up & locked Monk up in a cell. As I was putting him in the cell he shouted to Brennan “Do not admit anything Billy”. I searched Brennan & found on him the flask of brandy I produce & one cigar –
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I told Brennan he had one cigar. He said I have 1/-s worth of cigars. I said you have only one here. He said never mind then. I then took Brennan to Mittagong lock up, distant about 3 miles – I then returned to Bowral in company with Constable Waters. We took the prisoner Monk to where the offence was committed. This was 3½ hours after. I told him I was going to ask him some questions which he need not answer unless he liked, for what he said might be given in evidence against him. I asked him if he remembered me taking him from there last night. He replied I recollect you taking me from somewhere but I do not know whether here or not. Waters then lit a candle & found this flask produced marked (B) & also 5 cigars produced wrapped up in paper they are now in,
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and also the stone produced. When Waters picked the stone up I said that is the stone I struck match on. I asked Monk if he knew anything about this brandy. He replied I bought one like that at Baylis’ Hotel last night but I do not know whether that is it or not. We then took Monk back to the lock up – The grass on ground all trodden down & there were footmarks & part of the earth scooped out as if a toe had been pushed hard against the ground. I knew prisoners before. Both lived in Bowral. They were companions. There was no moon that night but I could distinctly see them.
Cross-examined Edmunds. Brennan’s Father was at that time dying. He has since died. He said he asked me to let him go & see his Father before locking him up & he asked me to take flask of brandy to him.
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I did not let him go – The place was on the highway & the track to Brennan’s house. That is Brennan’s way home. The nearest house to the spot is 26 yards. The house is at corner of lane & Bendooley Street. There is another house further up between spot & Brennan’s house – Immediately opposite is the Church of England Sunday School & behind there the Church & behind that the Parsonage occupied by the Revd Mr Debenham – The lane I speak of is 66 feet wide. I know Mrs (Comer ? passim). I do no know where she lives. She did live in Bowral. It is about 6 weeks or 2 months since she left – Her husband lives there. I believe that he has brought a suit of divorce against his wife. I know this from what I have seen in papers – I saw in the paper that I am joined
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as a Co-Respondent. I have no doubt I am joined through seeing it in the paper. Of course I have heard this from Comer himself. I heard him telling others. There are two other Co-Respondents. I have no reason to believe that Brennan could be a witness against me. – I do not know that Joseph Riley is a witness against me – I do not know that Brennan & Riley are witnesses against me in Divorce Court. Neither Riley or Brennan saw Mrs Comer sitting on my knee. Mrs Comer did not let me out of her Hotel, she being in her night dress – I can not say whether I met Brennan or Riley in Bong Bong Street, Bowral in February (last ?) – Riley did not make a remark, this is the man that you saw with Mrs Comer on his knee taking a glass of grog with – I heard Riley say who took
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the Brandy to the two storey house. I had no suspicion he meant me at the time. I think this was in January – Riley never said wait till I & Brennan get at you in the Comer case. 6 I saw him on Baylis’ verandah many a time. It was there he said who took the grog to the two storey house. Riley summoned me for insulting language. He said that “I said (he ?) (was ?) telling a lie – I admitted the charge & the Bench fined me 1/-. That was in January – or beginning of February. – I did not accuse Riley three times in Bowral or Mittagong. About 10 months ago I summoned Riley for using profane language. He was then acquitted. I never heard Riley say that Brennan was a witness against me.
Re-examined Armstrong. I am a married man. I was married 2 years come May. Mrs Comer used to live at Bowral
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I live with my wife at Bowral. I have one child. I live on good terms with my wife. I deny that there was ever any impropriety between me & Mrs Comer. I have been sent for to protect her from her husband’s violence. There are no grounds for any of these imputations against me. I have had no notice of this divorce suit. I only saw this in Evening News – Monk lives in Bendooley Street in the opposite direction to where they were – There was no one at the School or Church at that time of the night. The Parsonage House is another 20 yards past the Church – The lock up is ¼ of a mile away & I met no one from the place to the lock up – The fence runs along the road. Those (saplings ?) do not make the same screen as a fence.
To Edmunds. I do not remember meeting any person that night.
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To me. The prisoner Monk is a Plasterer & Brennan works in the (?) yard. They were both under the influence of drink.
2nd Witness John Lister 7 Waters examined Armstrong. I am a constable in charge of station at Mittagong. I saw constable at ¼ to 2 on Sunday morning 27th March when he came with prisoner Brennan. I went to Bowral with him at 2.10 – I know Bendooley Street – I went to a lane off Bendooley Street which leads to Glebe land. It is a right of way to Glebe land. There is a fence across. I saw a spot there. Monk, Nobel & myself were there. I saw some brandy in a bottle lying on ground, also there 5 cigars. There were foot marks & toe marks on ground & grass was trodden down. I lighted a candle & examined the
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ground.
3rd Witness Charles William Bayliss examined Armstrong. I am an Inn Keeper living at Bowral. I know both prisoners by sight. They occasionally come to my House. Monk came in evening on a Saturday evening. He bought a flask of brandy – This is the description of flask I sell. I sold a flask of brandy of that description –
Cross-examined [by] Edmunds. About 5 or 6. Monk was slightly under influence of drink. Between 9 & 10. When he bought flask of brandy he was perfectly sober.
Case for Crown closes.
Statements.
[William McDermott] Brennan makes a statement that he was easing himself in the scrub & Monk was making water.
[Henry] Monk says He was going to stop up with Monks Brennan’s father who was ill.
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Edmunds puts in a certificate of character from John (Lee ?) Morris JP of Bowral for Brennan. A certificate of character for Monk from RC priest of Berrima AW Petre. Another for Brennan from Dr (Jury ? Jung ?). Another for Monk from Mr Patrick architect. Another for Brennan from Brennan Mr Patrick.
1st Witness John William Debenham examined Edmunds. I am a Church of England clergyman residing at Bowral. I have been there for 3½ years. I know both of the accused. I have known Brennan 3½ years & Monk personally 1 year. Brennan has been an excellent character, except at one time rather given to drink, & have observed his behaviour. About 9 months before last June I heard he had given way to drink.
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He took the Pledge last June. So far as I know he has not taken liquor since then. Monks’ character is so far as I know excellent, except that he is given to drink. I know Bendooley Street & the lane leading to Brennan’s house – Counting Brennan’s house 3 houses in that lane. Brennan’s house is in Glebe. Immediately opposite the School hardly any undergrowth whatever. There are one or two wattle trees.
Cross-examined Armstrong. There is an undergrowth 5 or 10 yards further on. About 10 yards away there is a little of it, not much. I do not think the scrub would afford any screen. I am inclined to think that the scrub would not shield anyone.
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William Comer examined Edmunds. I am out of business. I have Petitioned a Divorce from my wife – Constable Nobel is a Co-respondent. On the night of 25th January last I had a conversation with Nobel about this matter. I told him he was in Divorce case as Co-respondent. I heard a conversation between Riley & Nobel – Riley said to him wait till Brennan & I get at you in Comer’s Divorce case. This occurred on Baylis’ veranday [sic], Bong Bong Street, Bowral.
Cross-examined Armstrong. I think Riley is a gentleman also – The May have been fined in April 84 for using profane obscene language and in July 84 may have been fined for using profane language. I can not say whether I was or not. In April 86 I was fined £10 for an (assault ?)
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on my wife & he threatened to strike me & I struck him of course. – I have seen Constable Nobel about my house on 3rd of December last. He went in a little after 11 o’clock & came out something after 12 o’clock. My wife let him out & she asked him would he be back again & he said “Yes” – she was in her night dress.
To Armstrong. I (?) that at the time – I was watching him outside – I did not throw a stone at the window.
Case for the prisoners closed.
Edwards addresses the Jury –
Mr Armstrong replies on behalf of Crown –
I sum up.
Jury retires at 2.59, returns at 3.29 & finds the prisoners not guilty.
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Bowral Free Press and Berrima District Intelligencer, Sat 23 Apr 1887 8
MOSS VALE DISTRICT COURT.
————
Friday, April 15.
————
Before his Honor Judge McFarland.
Joseph Riley v. Henry Monk.
To recover £200 libel.
Settled out of court.
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Goulburn Evening Penny Post, Sat 23 Apr 1887 9
GOULBURN CIRCUIT COURT.
The sittings of this court commenced at 10 o’clock yesterday morning before his Honor the Chief Justice, Sir Frederick Darley. Mr Armstrong prosecuted on behalf of the Crown, assisted by Mr [JF] Williams, junior, from the Crown Solicitor’s office. The other legal gentlemen present were Messrs Walter Edmunds, R Colonna-Close, Hannabury Davis, EP Field, and PW Street, barristers; and Messrs AM Betts, J Davidson, HS Gannon, Harold O’Brien, and FW O’Brien of Goulburn, Messrs Parr and Morgan, of Queanbeyan, and Mr Dowling, of Sydney, solicitors. Mr WJ Martyn officiated as Judge’s Associate. Mr Charles Cowper (sheriff), the Police-Magistrate, and Mr W Conolly, JP., occupied seats on the Bench.
Immediately upon his Honor taking his seat, the Police Magistrate (Mr C[harles] S[omerville] Alexander) rose on the floor of the court and said he had been entrusted by his brother magistrates and solicitors practising in Goulburn to read the following address:–
To the Honorable Sir Frederick Darley, Knight, Her Majesty’s Chief Justice of the Colony of New South Wales and its Dependencies.
May it please your Honor,–
We the Bench of Magistrates and the Solicitors practising in Goulburn, on this the occasion of your first visit to this city since your appointment as Her Majesty’s Chief Justice of the colony, desire to welcome you to Goulburn, and we gladly avail ourselves of the opportunity publicly to congratulate you on your accession to so high and important an office; and while we lament the great loss Australia has sustained by the decease of your eminent predecessor Sir James Martin, we cannot but feel gratified that the colony has obtained the services of one so well qualified to follow in the footsteps of that great judge, and one who, we are assured, will by eminent ability and unswerving uprightness, uphold the dignity of the office and shed further lustre upon the Supreme Court of New South Wales.
We pray that you may be long spared to preside in that court, and we hope that when next you visit our city in your official capacity, the new court-house will provide for your accommodation, and that of the legal gentlemen who will accompany you, rooms more befitting the dignity of your position than those in which we are at present assembled.
Court House, Goulburn, 22nd April 1887.
(The address was engrossed on vellum by Mr Hitchins of the firm of Messrs Alexander & Hitchins, [surveyors].)
Mr Alexander further said that since the address had been engrossed it had been found necessary to slightly alter the wording of the address, as the magistrates had found that the marked distinction of knighthood had been conferred on his Honor by her Majesty the Queen, upon which honor they heartily congratulated him. He added that the address was signed
At the conclusion of the address Mr Alexander said the original heading had been by thirty-nine magistrates and five solicitors practising in Goulburn.
His Honor then read the following reply:–
Mr Alexander, Gentlemen,– I thank you for the address you have been so good as to present to me and for the congratulations contained therein.
You say with true significance that Australia has sustained a great loss in the death of my illustrious predecessor Sir James Martin. The good he did as a statesman and his great and conspicuous ability as a judge extend far beyond the boundaries of this colony, and vain indeed would I be did I deem myself worthy to fill the position vacated by him–but this I do feel, that the nearer I can approach his shadow, the closer I can follow to his footsteps, the greater will be the service rendered by is the public.
Yes, gentlemen, I have as a powerful incentive to duty, the example of my distinguished predecessor, and if when I vacate this seat, my name be deemed worthy of being placed beneath theirs, I will then, living, reap a rich reward, or, if no more, leave to my family a name of which they may well feel proud.
I may be pardoned for saying in conclusion I envy Goulburn the possession of the court-huse now approaching completion, and trust the day may not be far distant when Sydney the metropolis of this great country will also possess a fitting palace of justice, and thus be able to discard a building one feels ashamed to point to as the supreme court of the colony.
The police magistrates then introduced the magistrates and solicitors present to his Honor, and the business of the court proceeded.
UNNATURAL OFFENCE.
Henry Monk (on bail) was placed in the dock and charged with having, at Bowral, on the 26th March, 1887, committed an unnatural offence on the person of a man named William H Brennan; and William H Brennan (on bail) was charged with consenting to the same offence being committed on him.
Both prisoner pleaded not guilty, and were defended by Mr Walter Edmunds, instructed by Mr Betts.
Two jurors were challenged by the prisoners.
The Crown-prosecutor opened the case at considerable length, narrating the circumstances connected with the alleged crime.
Constable [Charles] Noble, stationed at Bowral, deposed: I was on duty in Bandooley-street on the night of the 26th March last, about half-past 11; there are a dozen houses in that street, but they are a good distance way from each other; I heard a slight noise in the bush, and thought it came from a drunken man; I went up a lane which leads to prisoner Brennan’s house and the glebe land; there is a fence between the lane and the glebe land; the noise came from the side of the lane, where there were some saplings; (the witness described what he heard and saw on proceeding to the spot, which evidence is unfit for publication); I tried to strike a match, and prisoners then got up and ran away; I then picked up the stone produced and struck a match on it; I took the prisoners into custody, and charged Monk with committing an indecent offence; Monk replied, “For God’s sake, Mr Noble, look over it this time; look at the disgrace it will cause to my sister;” Brennan said, “For God’s sake, Mr Noble, let me off this time; it’s the first time you ever caught me doing anything; if you won’t have pity on me, think of my dying father and poor mother;” I took both prisoners to the Bowral lockup and locked Monk up in the cell; as I was putting him in the cell he shouted to Brennan, “Don’t admit anything, Billy;” I then searched Brennan, and found on him the flask of brandy produced and one cigar; I told Brennan he had one cigar, when he said, “I had a shilling’s worth of cigars;” I replied, “You have only one here,” when he replied, “Never mind, then;” I afterwards took Brennan to the Mittagong lockup, which is about three miles distant, and then returned to Bowral in company with Constable Walters; I then took both prisoners to the place where the offence was committed, and told Brennan I was going to ask him some questions, but he need not answer them unless he liked, as what he said might be given in evidence against him; I asked him if he remembered my taking from there on the previous night; replied, “I remember you taking me from somewhere, but I don’t know whether it was from here or not;” Constable Walters then lit a candle and found another flask produced, and also five cigars wrapped in a piece of paper, and also the stone produced; when Constable Walters picked up the flask of brandy Monk said he bought one from Baylis on the previous night, but he did not know whether that was it or not; we then took Monk to the lockup; I knew both prisoners before; they were companions, and both live at Bowral; there was no moon that night, but I distinctly saw what I have described.
To Mr Edmunds: It is a fact that Brennan’s father at that time was dying, and he has since died; he asked me if I would let him go and see his father before I locked him up, and afterwards asked me to take the flask of brandy to him; I did neither; where I saw the prisoners was alongside a fence, not behind it; that was on Brennan’s way home, and 26 yards distant from the nearest corner of his residence; between that spor and Brennan’s house there is another house, which also has a frontage to the lane; immediately opposite the spot indicated there is the Church of England Sunday-school building, behind that the church, yard behind that again the parsonage occupied by the Rev Mr Debenham; I know Mrs Comer, who lived at Bowral till six weeks ago; her husband lives there now; I believe he is trying to obtain a divorce, and I have heard that I am joined as a co-respondent in the divorce suit; I have not received any summons yet, but I have no doubt such is the case from what I have seen in the papers; Mr Comer told me such was the case within the past four months; I believe there are two other co-respondents; at the time of the offence was committed I had not the least suspicion of Brennan being a witness against me in the divorce suit; I do not know that Mr Joseph Riley is a witness against me; I have no reason to believe that Brennan and Riley, or either of them, will be witnesses against me in that suit, neither of them ever saw Mrs Comer sitting on my knee; I don’t know whether I met Brennan and Riley in Bong-Bong-street, Bowral, in February last; Riley never said in my presence– “This is the man I saw with Mrs Comer on his kne, and giving her a glass of grog;” I have heard Riley say in my hearing, but not to me– “Who took the brandy to the two-storeyed house?” from which I inferred that he meant Mrs Comer’s house; I had no suspicion that he alluded to me at the time; I think this was in January last; I do not recollect Riley ever speaking to me about the divorce case; he never said to me– “Wait until Brennan and I get at you in Comer’s case;” I never met him in Baylis’s verandah, but have often seen him there when I passed; he was there when he made the remark about taking the grog to the two-storeyed house; there was a case in the court between Riley and me in January last; he summoned me for calling him a liar; I admitted doing so, and then the Bench fined me 1s; I did not accuse Riley of some offence, before the magistrates at either Mittagong or Bowral: I have only summoned him once, about ten months ago; he has not since then been summoned in a case where I gave evidence against him; he was only summoned once to my knowledge, and on that occasion he was acquitted; I never heard Riley say that Brennan would be a witness against me.
To the Crown-Prosecutor: The man Riley lives at Bowral, but I don’t know how he gets his living; he never works, and has often been before the court; I have been married nearly two years; Comer is a retired publican, and has been separated from his wife about 12 months; I am living on good terms with my wife; there has never been any impropriety between Mrs Comer and me, and I was never at her house except when when she sent for me to protect her against the violence of her husband; there is no foundation whatever for what has been alleged against me to-day, and the first I heard of it was last night; I was never in the house with her alone; I saw something about the case in the E News; where the offence was committed was not on the way to Monk’s house; he lives at the end of Bandooley-street; no one lives at the school-room, and there was no one about at the time; I did not meat anyone in taking the prisoners to the lockup.
To Mr Edmunds: I don’t remember meeting Mr and Miss Pen as I was going to the spot.
To his Honor: The prisoner Monk is a plasterer, and Brennan works at the tan-yard; they were both under the influence of drink at the time of the occurrence.
John Lyster Walters [aka Waters], a constable in charge of the station at Mittagong, corroborated the evidence of the previous witness to what he deposed to regarding the circumstances after the alleged offence was committed.
Charles William Baylis, a publican at Bowral, deposed: I know both prisoners by sight; I remember Monk coming to my house one Saturday evening in March and buying a flask of brandy; one of those is similar to those I sell.
To Mr Edmunds: Between five and six o’clock Monk appeared to be slightly under the influence of drink; between nine and ten o’clock, when he bought the brandy, he seemed to be perfectly sober.
This was the case for the Crown.
The prisoner Brennan made a statement to the jury, which was to the effect that his father was very ill that night, and that he was compelled in hurrying home to stop on the road through an attack of diarrhoea; and that Monk was going up with him to see his father and stop up with him all night. He positively denied that anything like what had been sworn to ever took place.
The prisoner Monk also positively denied the charged preferred against him, and said he was going up to Brennan’s house to see the latter’s father.
Mr Edmunds produced certificates of character on behalf of both prisoners. John G Morrice, JP., and – Duprey spoke very highly of Brennan; and RW Petre, Roman Catholic clergyman at Berrima, and – Parrott spoke favourably of Monk, the only flaw in his character being that he is given somewhat to drink. He (Mr Edmunds) then called for the defence–
JW Debenham, who deposed: I am a Church of England clergyman residing at Bowral, where I have been stationed for 3½ years; I have known both prisoners – Brennan ever since I have been at Bowral, and Monk for 12 months; I know nothing against either of them, except that they have both given away somewhat to drink; Last June Brennan took the pledge from me, and as far as I know he has not touched any liquor since that time; immediately opposite the school there is scarcely any undergrowth.
To the Crown-Prosecutor: About 10 yards further along the lane there are some wattle trees and other undergrowth; I do not think this would form much of a screen, but as I have not examined the ground for the purposes of this case I cannot speak positively.
William Comer, gentleman, deposed: I have petitioned for a divorce from my wife; I had a conversation with Noble on the night of the 25th January last with reference to his being joined in a suit; on that night I told him he was in the divorce case as co-respondent; I heard a conversation between Noble and Joseph Riley in reference to the same subject, Riley remarking, “Wait till Brennan and I get at you in Cromer’s divorce case;” this was after Noble had said something offensive to him.
To the Crown-Prosecutor: I cannot say whether Riley is a gentleman also; I do not remember being fined 20s and costs in April, 1884, for using obscene language, neither do I recollect being fined £2 and costs for using profane language; I cannot think back as far as that; I booked what occurred on the 25th of January; in April, 1886, I was summoned by my wife for an assault, and was fined £10 and costs; she threatened to stab me, and I struck her of course.
To Mr Edmunds: I have seen Noble at my late residence in Bowral on several occasions at night time; on one occasion he went in a little after 11 o’clock, and came out about 12 o’clock; my wife let him out, and asked him if he was coming back again; he replied, “Yes.”
To the Crown-Prosecutor: I booked all this; I was watching Noble in order to catch him or any one else and assist me in getting a divorce; I did not throw a stone and break a window on that occasion.
Mr Edmunds addressed the jury in a very forcible speech of three-quarters of an hour’s length, in which he argued that the probabilities were altogether in favour of his clients; and he contended that there must be such a sufficient reasonable doubt in the minds of the jury as to justify them in acquitting the prisoners, which he asked them with all confidence to do.
The Crown-Prosecutor ably replied to the remarks of his learned friend in an address of about equal length.
His Honor summed up the evidence very carefully, commenting on the main points in Constable Noble’s evidence as he proceeded; and the substance of his remarks was decidedly in favour of the account given by the prisoners being worthy of credence.
The jury retired at 3 pm to consider their verdict, and after an absence of half-an-hour they returned into court with a verdict of not guilty.
Both prisoners were thereupon discharged.
The Crown-Prosecutor said this was the only case for trial.
His Honor took the opportunity of remarking that the whole of the southern district was to be congratulated on the absence of crime. In this present circuit, the first he had made since his appointment to his present position, he had visited Hay, Young, and Yass, and found very few cases to be tried of a criminal nature. This he considered reflected great honor on the colony as a whole and the southern districts in particular.
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The Goulburn Herald, Sat 23 Apr 1887 10
Image: NSW State Library collection.
Reproduction: Peter de Waal
GOULBURN ASSIZES
Opened yesterday morning before His Honor Sir Frederick Darley, chief justice.
…
UNNATURAL OFFENCE AT BOWRAL.
Henry Monk was charged with committing an unnatural offence at Bowral on the 26th March, and William H Brennan (on bail) was charged with consenting to the committal of the offence.
Prisoners, who are young men, pleaded not guilty, and were defended by Mr W Edmunds, instructed by Mr Betts.
Constables Noble and Waters, and Charles William Bayliss, [sic] publican, gave evidence of a criminating character.
Prisoners made statements denying the charge and accounting for their being at the spot mentioned at the time named.
Mr Edmunds read certificates of character from Rev AW Petre, Roman Catholic clergyman at Berrima, Messrs JG Morris and EW Duprez, storekeepers at Bowral, and Mr T Parrott, architect, Bowral.
Rev JW Debenham, church of England clergyman at Bowral, deposed that he knew both prisoners and they bore characters, with the exception that Monk was at times addicted to drink; he further deposed that there was, as far as he could say, not sufficient undergrowth at the spot where the offence was alleged to have been committed to prevent persons from being seen by passers-by.
William Comer deposed that he was suing for a divorce, that Constable Noble was a co-respondent, and that Brennan was a witness.
Mr Edmunds addressed the jury, contending that Constable Noble’s evidence was open to such a doubt from the surrounding circumstances in connection with Comer’s wife as to lead the jury to return a verdict of acquittal.
The Crown Prosecutor replied, arguing that the circumstances referred to in the evidence pointed clearly to the offence having been committed.
His Honor summed up in favour of the prisoners.
The jury retired at three o’clock and after an absence of half an hour returned a verdict of acquittal, and prisoners were discharged.
The Crown Prosecutor said that concluded the criminal business.
His Honor said that the whole of the southern district was to be congratulated on the absence of crime and it reflected great credit upon the colony.
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The Sydney Morning Herald, Sat 23 Apr 1887 11
COUNTRY CIRCUIT COURTS.
———◦———
(By Telegraph.)
(From Our Own Correspondents.)
———
GOULBURN.
Goulburn, Friday
…
The only criminal case at the Circuit Court to-day was one in which Henry Monk and William H Brennan were charged with committing an indecent offence at Bowral on March 26. The prisoners, who were defended by Mr Walter Edmunds, were acquitted. Mr Armstrong prosecuted for the Crown. His Honor referred to the absence of crime which appeared to exist throughout the entire circuit he had travelled. He said the people in the several places were to be congratulated on this gratifying state of affairs.
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Bowral Free Press and Berrima District Intelligencer, Sat 30 Apr 1887 12
TRIAL OF BRENNAN AND MONK.
————
AT the Goulburn Circuit Court yesterday week, before his Honor the Chief Justice, Sir Frederick Darley,—Henry Monk (on bail) was charged with having at Bowral, on March 26th committed an unnatural offence upon WM Brennan (on bail), who was charged with consenting to the perpetration of the offence.
Both prisoners pleaded not guilty, and were defended by Mr Walter Edmunds, instructed by Mr Betts.
Mr Armstrong opened the case, which in its details was disgusting in the extreme, and wholly unfit for publication.
Constable Noble, stationed at Bowral, gave evidence respecting the offence, stating that he witnessed its commission; he arrested prisoners on the scene, and both made appeals to him to allow them to escape.
To Mr Edmunds: Witness knew a woman named Mrs Comer; she left Bowral sometime ago; her husband is petitioning for a divorce from her; witness believed he was to be one of the co-respondents; he had seen something to that effect in the papers; there were two other co-respondents mentioned; he had no reason to believe at the time the present case originated that Brennan was to be a witness against him in the divorce suit; he did noot know that a Mr Riley was to be a witness against him; neither one nor the other saw Mrs Comer sitting on witness’s knee; heard Riley say in the street, “Who took the brandy to the two-storied house?” the house in question that resided in by Mrs Comer; Riley never spoke to him direct upon the subject or the divorce case; Riley never said, “Wait until Brennan and I get at you over the Comer case;” Riley had a case against witness for saying he (Riley) was telling a lie; witness admitted the charge, and was fined.
To Crown Prosecutor: There never was any impropriety between witness and Mrs Comer; both prisoners were under the influence of liquor when arrested.
Constable Waters also gave evidence.
Charles William Bayless, innkeeper at Bowral, stated that on one evening in March he sold a flask of brandy to prisoner Monk.
This was the for the crown.
Both prisoners made short statements denying the charges laid against them.
Certificates of character on behalf of prisoner Brennan from Messrs John G Morris, AP Duprez, and TH Parrott were put in. A similar certificate from Rev AW Petre was produced.
Rev JW Debenham, C[urch of] E[ngland] clergyman at Bowral, was called and gave the prisoners an excellent character, save that they occasionally gave way to drink.
William Comer, who described himself as a gentleman out of business, said it was true that he had petitioned for a divorce from his wife; he had a conversation with Constable Noble on the night of the 25th January with reference to his being joined in the suit as co-respondent; witness heard a conversation on 25 January between Riley and Noble when Riley said to Noble “Wait till Brennan and I get at you as witnesses in Comer’s divorce case.”
To Crown Prosecutor: In April, 1886, he was fined £10 and costs for assaulting his wife; he might have been before the court on previous occasions, but he did not remember.
The jury were addressed on both sides, Mr Edmunds’ speech being a very forcible and exhaustive one.
His Honor summed up, and the jury retired at 3 o’clock, and returned a verdict of not guilty against bother prisoners, who were accordingly discharged.
His Honor referred at the conclusion of this case to the great absence of crime which appeared to exist throughout the entire circuit which he had travelled, and said that the people in the several circuits were to congratulated on the present gratifying state of affairs.—Southern Argus.
1 The Bowral Free Press, Sat 2 Apr 1887, p. 3.
2 SRNSW: NRS880, [9/6752], Supreme Court, Papers and depositions, Goulburn, 1887, No. 67. Emphasis added.
3 SRNSW: NRS5829, [2/2949], Judiciary, FM Darley, CJ. Notebooks Circuit Courts, 1888-1908, pp. 1-16. Emphasis added.
4 Sir Frederick Matthew Darley chief justice of the NSW Supreme Court and lieut-governor was born 18 Sep 1830 in Ireland. Darley entered Trinity College, Dublin (BA, 1851). Called to the Bar at the King’s Inn on 18 Jan 1853, he went to London where he read in the chambers of Richard Holmes Coote. He was admitted to the English Bar before returning to practise on the Munster Circuit. Darley and wife Lucy Forest sailed, for Sydney, in the Swiftsure from Plymouth in Jan 1862 where he was admitted to the NSW Bar on 2 Jun of that year. On chief justice Martin’s death in 1886 the then AG, William Bede Dalley, QC, declined the invitation to become chief justice. Darley agreed, despite loss of income, in the public interest to make the financial sacrifice and was sworn in on 7 Dec 1886. Late in 1902 Darley’s health failed and lobbying for the chief justiceship commenced. He returned to England during 1902 and returned to Sydney in 1903 and resumed his seat on the bench. He lived at Quambi, Albert Street, Woollahra. Darley died on 4 Jan 1910 in London and was buried in the family vault at Dublin. ADB, 1851-1890, vol. 4, pp. 17-9.
5 Noble in transcript of depositions.
6 Mn: Denies hearing Riley say wait till I & Brennan get at you in Comer case
7 Lyster in transcript of depositions.
8 Bowral Free Press and Berrima District Intelligencer, (NSW), Sat 23 Apr 1887, p. 2. Emphasis added.
9 Goulburn Evening Penny Post, Sat 23 Apr 1887, p. 3. Emphasis added.
10 The Goulburn Herald, Sat 23 Apr 1887, p. 4. Emphasis added.
11 The Sydney Morning Herald, Sat 23 Apr 1887, p. 15.
12 Bowral Free Press and Berrima District Intelligencer, (NSW), Sat 30 Apr 1887, p. 2. Emphasis added.