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Colonial Cases

R. v. Ah Kim 2, 1874

[larceny and sodomy, by Chinese]


R. v. Ah Kim 2

Circuit Court, Palmerston
Wearing J, 10 February 1874
Source: Northern Territory Times and Gazette, 13 February 1875, pp 2-3




Wednesday, February 10

(Before His Honor Mr. Justice Wearing.)

The Commission authorising the holding of the Court was read by the Associate (Mr. Pelham).

On the Jury being called, Mr. Durand was exempted as being a foreigner and not naturalized.

Mr. Frew and Mr. Lindsay asked to be exempted on the ground that they were Justices of the Peace; but the application waa not allowed.

Maurice Holtz was excused on account of being a foreigner and not understanding English.

Mr. H. Moore was excused on account of illness.

Ah Kim, a Chinaman, was indicted for having committed an unnatural offence at Palmerston on the 25th April, 1874.

Mr. Smith, who appeared for the prisoner, asked that, as Ah Kim was an alien, he might be tried by a mixed Jury, which application was assented to, and six foreigners were sworn in.

The Crown Prosecutor (Mr. Whitby) detailed the particulars of the case, and called James Holles, the prosecutor, whose evidence was the same as at the Police Court. Mr. Smith cross-examined him at considerable length, but nothing fresh was elicited. Trooper Lees repeated the evidence which he gave before; and

Trooper Tasker was called, but he was absent, having been discharged from the force.

The Crown Prosecutor addressed the Jury, arguing that the case had been completely proved.

Mr. Smith replied, and pointed out that two material witnesses who ought to have been called by the Crown were absent; whilst with regard to the prosecutor, he could scarcely be considered as reliable, seeing that he was a prisoner in gaol at the time of the alleged offence. The evidence, he submitted, was most inconclusive, and he would ask the Jury to pause before condemning the prisoner to incarceration for life, which was the only punishment provided by the Act.
His Honor summed up, and pointed out that the Jury could either find the prisoner guilty of the completed offence, or the attempted offence. It was true the punishment for this crime was very severe; but it was the custom for the Executive to remit a large portion of the sentence in cases of this sort. He mentioned this, though it was not a matter for the Jury to consider what the punishment was to be in any case which came before them.
The Jury retired for about ten minutes and then returned, saying that they could not agree-the six English men being of opinion that the prisoner was guilty, and the Chinamen and Malays being in doubt. The Judge therefore ordered them to retire for further consideration.
After a short time the Jury found the prisoner guilty; but hoped the long imprisonment of the prisoner before trial would be taken into consideration.
The Judge sentenced the prisoner to imprisonment for life with solitary confinement, saying that probably a portion of this sentence would be remitted; and thesuggestion which the Jury had made would be taken into consideration. No doubt prisoner's counsel would take steps to obtain a remittance of a part of the sentence; but at present the Court could not give a shorter term, as the express words of the statute required imprisonment for life with solitary confinement, though "solitary confinement," of course, did not mean confinement in solitude during the whole of every day throughout the term of imprisonment.
The other charge against Ah Kim was abandoned.

Source: Northern Territory Times and Gazette, 1 May 1874, p 2


Saturday, April 25.

[Before Mr. E. W. Price, S.M.]

Ah Kim, a Chinaman, was charged with larceny by Mr. Frew, manager of the E. S. & A. C. Bank. Palmerston.

Mr. Frew deposed that he received a parcel from George Minza, from Southport, on or about the 4th April. Received the parcel between 8 and 9 p.m., at Mr. Smith's residence, and put it in his coat pocket. Left between 10 and 11 p.m. Did not miss the letter till the 21st April, it having escaped his memory. Received a telegram from Southport, which recalled the circumstance to his memory. Communicated with the police and obtained particulars of the contents of the packet.

Case remanded till 1st May.

Monday, April 27.

(Before Mr. Price, S.M.)

Ah Kim was charged by the police with committing an unnatural offence in the prison cell on the morning of the 25th April, and was committed to take his trial at the September sittings of the Supreme Court.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School