14 March 2013

Stephen Tobin- Ch:6- Return to NSW, move to W.A., and death

 In 1894, an application appeared in the ‘Brisbane Courier’ 26 Feb 1894, p.8 (re Stephen’s sister Ellen’s Will and transmission of her land) which showed that Stephen was living at Mulgoa, Penrith NSW. The section under Name of Claimant described: “Stephen Tobin of Tallebudgera near Nerang, farmer, but at present of Mulgoa, Penrith, NSW"

By December 1896, Stephen and his wife had joined most of his adult children who had previously moved to Perth in Western Australia. An article in the Freeman's Journal (Sat. 19 December 1896 p.28) had disclosed that Stephen and Mary had left NSW for Perth the previous week:
"Amongst passengers Westward Ho! last week was Mr Stephen Tobin of Mulgoa, who for the present makes Perth his home. The old gentleman- he is much older than he looks- has not been led by booms and rumours of booms to the Golden West, but by his present departure consolidates his family, several members of which have for some time past been carving their fortune in W.A. Formerly a Queensland colonist, Mr Tobin when he left for NSW carried with him credentials from Sir Henry Norman (with whose regiment he served in India) and Sir Samuel Griffith, cum multis alliis; and leaves Sydney not unprovided with like "open sesames." Mr Tobin is the soul of Irish manhood; and the FREEMAN's little testimonial is that for a generation he has read and regularly paid for his FREEMAN."

A dilemma

I am very conscious that genealogists are the story tellers of the family- the custodians of the family history. We spend our lives unearthing the secrets of our forebears to pass on through the generations. We thrill at finding a skeleton in the closet, a black-sheep of the family, and a spicy story to go with it. The excitement is palpable when we first discover descent from Australian ‘aristocracy’- a convict, or even more desirable, one of the ‘first fleeters’. We claim them with pride- no matter whether our forebear was a petty thief, or a highwayman, or an Irish rebel convicted of murder, it makes a fascinating story to write about. What better than a link with a bushranger, hanged for his crimes. Despite their foul deeds, we romanticize these characters in our folklore. We recognize that this was another era with a very different set of values, and punishment was harsh. Life itself was harsh and many of the crimes one’s forebears committed can be excused due to their circumstances and the times in which they lived. But there is one crime that cannot be so easily dismissed. And therein lies the dilemma. Do you reveal your forefather’s shame and destroy his reputation in the eyes of all of his descendants? Do you deliberately avoid publishing the details of the accusation to spare the feelings of his family? Do you present the facts as reported and then debate the arguments for and against the accusation to try and explain his alleged behaviour or determine the truth or otherwise of his guilt?

For the purpose of this chapter, I have decided to pursue the latter course.
In the preceding chapters we have established that Stephen Tobin was a popular man with an exemplary character, much admired and respected in the various communities in which he lived and on whose behalf he agitated strongly with government to improve the local facilities and infrastructure with great success- a recognized leader of the community. He also lived in each community for long periods of time, and was an elderly man of 72 years of age when he decided to retire and join his daughters who had moved to new pastures. Over the years Stephen had forged an honourable reputation with many of the leading politicians in Queensland and NSW.

I had formed a very favourable opinion about this man who was my ancestor- I was proud of him and his achievements. You can imagine the shock and disbelief when I discovered the following notice in the NSW Police Gazette, 14 July 1897, page 249:
Apprehensions &c.
Stephen Tobin, summoned before the Penrith Bench by Constable Hughes, Mulgoa Police, for indecently assaulting Hilda May Hughes, a girl under the age of 14 years, has been committed for trial at Sydney Quarter Sessions. Bail allowed- self £50 and two sureties in £25 each.

Stephen returned from Perth for the trial.

A short summary of the case appeared in the The Sydney Morning Herald, Friday 27 August 1897 p.3:
Stephen Tobin, an elderly man, was charged with having on the 15th October 1896, at Mulgoa, assaulted a child, Hilda May Hughes, under 14 years of age, viz. 9 years and 8 months. Mr Walter Edmonds instructed by Waller and Deeson appeared for the defence. Accused was found not guilty and discharged.

For a short time I felt relieved that he had been found not guilty. However, a more comprehensive report of the case was then reported in the regional newspaper, 
The Cumberland Argus and Fruitgrowers Advocate (Parramatta), Sat. 28 August 1897.[i]

Before Judge Backhouse
Thursday 26 August 1897
Stephen Tobin was charged with having on 15th October 1896 at Mulgoa, indecently assaulted a child, Hilda May Hughes, under 14 years of age- viz. 9 years and 8 months. Mr Walter Edmunds (instructed by Walter and Dawson) appeared for the defence.

Hilda May Hughes, an attractive and intelligent child of 10 years of age, was briefly examined by His Honor as to the nature of an oath, and ultimately sworn. She deposed that she was sent on a message from her own house to defendant’s on October 15. She was looking for a packet of needles in the bedroom when accused came in and found the needles for her. He then caught her beneath the arms and threw her down, and indecently assaulted her. Later, he asked her not to tell her father, but she would not promise. She did not tell her parents that day nor for some time afterwards, but told her sister. Some months afterwards she informed her parents in reply to their questions.
Blanche E. Hughes deposed that her sister Hilda made a certain complaint to her on the evening of the 15th October.
The Crown Prosecutor pressed for details in view of a recent decision of the higher courts.
Mr Edmunds objected on the ground that statements behind the back of accused were clearly not evidence.
His Honor asked if the Crown Prosecutor had with him the decision lately given, but that gentleman replied in the negative.
His Honor said he knew the decision had been given, but as it could not be produced, it would be better for the Crown Prosecutor not to press the matter.
The witness deposed that accused once asked her if her sister Hilda had told her of his conduct, and then said that he was “going away to West Australia”, and “no police could touch him there.” When he returned (some six months later) accused went to her father and said he wished to know straight out what it was they (the Hughes family) had against him. Later Miss Tobin said the matter would not rest there- that they (the Tobins) would take proceedings.
First Class Constable H.S. Hughes (the child’s father) stationed at Mulgoa, deposed that he saw his daughter crying on the evening of the 15th October, but she made no complaint. The two houses were about 150 feet apart. Shortly before he had heard some screaming from a child, which he took to come from a neighbour’s house. Did not pay much attention. On the next day he noticed discolouration on the child’s underclothing. Took no action till the 4th January when he spoke to his older daughter. He was accosted by Miss Tobin and her father (accused) in June. She asked him what he had against her father and witness said he would say what he thought necessary at the proper time and place. Had called twice to see Miss Tobin in reply to a communication from her, but had not seen her. Had consulted his superior officer who had told him to please himself as to what he did. On July 8th he received an ____ that accused had been to the Inspector General of Police.
Selina Hughes, the wife of the previous witness, deposed that she remembered the child crying on the night of the 15th October. On the 16th she noticed the condition of the child’s clothing. She mentioned the matter to her husband but did not ask the child any questions.
The accused, Stephen Tobin, deposed he was 72 years of age and was for years Sergeant in the British Army and had been a resident of New South Wales and Victoria (sic) for over 30 years. Produced letters from Sir Henry Norman (ex-Governor of Queensland) (Field Marshall who served in India- Governor of Qld 1889-1895), and Sir Samuel Griffith (Premier of Qld 1883-1888), and also a letter signed by various other persons of high standing in Queensland, justifying to his character. Remembered the child, Hilda Hughes, calling at his house in October last. There was not a single word of truth in her story. He left Sydney for West Australia early in December last- it was well known months before that he intended leaving. While in West Australia he heard certain things by letter from his daughters who were still in Mulgoa. On the first intimation he sent a telegram from West Australia to the effect that he would return at once if deemed advisable. He received no telegram in response, and the next letter advised him to wait till further enquiries could be made. He found he could not rest with the allegations about him, and ultimately he came back from West Australia to meet the charge, and, if necessary, to take proceedings against Mr Hughes. Had otherwise no intention of returning. Went with his daughter to see Mr Hughes. She asked him to say to their face what he had said behind witness’s back. Took out a summons against Mr Hughes in July. Denied having used to Blanche Hughes the words sworn to by her. When the child called in October she had to get a candle to get the article for which she was sent. Did not remember what this was. Was not in the room with her. The child went out and closed the door after her.
Alice Hyde, married daughter of accused, deposed that prior to December last she was living with her father and sister at Mulgoa. On the evening of the 13th (not 15th) October she sent the child Hilda Hughes to her (witness’) father’s house for some needles. The child was not away more than 5 minutes and when she came back there was no indication of any crying or distress on her part. Did not hear any screaming. Was able to fix the date definitely by the fact that she had a “battery” made that evening. On Hilda’s return asked her if she had found the needles easily, and she said “Yes- they were on the chest of drawers in your room.” Was not on very intimate terms with the Hughes family- though she knew the children well. Remembered the child Blanche Hughes being there one day to dinner. It was not a fact that any conversation respecting defendant’s conduct took place on that occasion. Witness was present during almost the whole of the meal and was in the adjoining office for the rest of the time.
Louisa Tobin, post and telegraph mistress at Mulgoa, accused’s eldest daughter, deposed that the families were not on friendly terms. She generally corroborated the previous witness’ evidence.
Lillie Tobin, another daughter, deposed that after her father’s return, he and she went to Hughes house and asked him to say what he had previously said. He declined. Her father was present at the time.
Messrs A.W. Stephen J.P. (a director of the Land Company of Australasia), Arch. Campbell M.L.A. and Alfred Colless (proprietor of the “Nepean Times”, and one time Mayor of Penrith) gave the accused an excellent character.
Counsel addressed the jury.
His Honor summed up, somewhat against the accused; and the jury, after retirement, stated that they had agreed to return a verdict of not guilty and to add a rider “that, while we believe there is a doubt, we decide to give the accused the benefit of same”.
His Honor thanked the jury for their attendance and said that he was not surprised that their deliberations had extended over some time. As to the rider, the press were present and no doubt would kindly give publicity to it.
His Honor then desired the court to be adjourned etc.

What can one make of this trial? On the one hand he was found not guilty. On the other, the judge and the jury clearly thought he was possibly guilty of this despicable crime but were unable to convict him due to lack of evidence, so the judge more or less directed the press to meter out an appropriate punishment by shaming him- reminiscent of putting him in the stocks. Tobin’s character references and letters of recommendation were impressive, including from such notables as the former Premier and Governor of Queensland, but this method of shaming him in the eyes of all former and any future acquaintances was an effective alternative punishment. His character was forever tainted.

The question is- was he truly guilty of the crime as charged?

Stephen was 72 years of age when this occurred. Does a man reveal a sexual attraction for young girls at this advanced age? Surely this predilection would have manifested itself before this, yet a man could not live in such small communities and attain such a level of respect if he had succumbed to his depraved and shameful instincts. His seven daughters clearly adored him. However, a nine year old child, particularly in that era of childhood innocence, does not generally make an accusation of sexual assault without some basis of truth.

But why would he choose to molest or rape the very young daughter of a neighbour who was the local policeman? It does not bespeak of a premeditated act, and even a spur of the moment action does not make sense for an intelligent man of such mature years who would be well aware of the consequences. I can only find any sort of justification if senility had set in, which could explain why his daughters defended him so tenaciously. Stephen’s two spinster daughters, Louisa and Lily, as well as his newly married daughter Alice (Hyde) were the witnesses called on his behalf. (Louisa Tobin was appointed Post and Telegraph Mistress at Mulgoa in 1884 and her sister Lily became her assistant from 1896, whereas Alice had returned from Perth shortly after her wedding on 12 July 1897 in Perth, at which her brother-in-law gave her away and her mother hosted the wedding dinner.) Their version of events differs markedly from that of the Hughes family. Were they lying under oath to protect their father? Their testimony clearly evoked enough doubt to prevent Stephen’s conviction.

Further questions spring to mind- surely a nine year old child who had been sexually assaulted would show some level of physical injury and bruising which would become more apparent in the days following. Wouldn’t she have behaved hysterically rather than be merely upset, and if so, wouldn’t her parents have been aware of the trauma their child had just experienced and demanded to know the reason? After all, the father claimed to have heard someone screaming at the neighbour’s house but did not make enquiries- an unusual reaction from a policeman. Why did it take so long for the ‘truth’ to come out? And what of the “discolouration on her underclothing”? On noticing the stains on the following day, the child’s mother mentioned it to her husband but neither asked the child any questions- is that not an odd reaction? Did they not put two and two together? Blood is easily identifiable, and yet the child’s mother did not pursue the matter, even to question the child whether she had begun to menstruate. None of these questions seem to have been asked by the court. Why didn’t the defense counsel pursue this line?
There are so many questions left unanswered.

If he was guilty, why would Stephen return from the legal safety of Western Australia to clear his name? But then again, did Stephen and his family go to Western Australia two months after the assault because they knew he was in deep trouble?  Or had they planned to go there months before the assault as he claimed was widely known?  

The child’s sister claimed that Tobin had “once asked her if her sister Hilda had told her of his conduct, and then said that he was going away to West Australia, and no police could touch him there”. Surely no-one would be so stupid and incautious as to ask his victim’s sister if she (the victim) had told her of his ‘conduct’. And then return to NSW to clear his name after making such a damning statement to a potential witness. That evidence does not ring true.

Stephen claimed he took out a summons against the child’s father, Mr Hughes, in July, probably for libel, which is not the action of a guilty man. Nevertheless, he may have lost that case as the Judge and the Crown Prosecutor made reference to a decision “lately given in the higher courts” which could not be produced and therefore that line of questioning was dropped. If it was relevant to the case, one would expect that the Crown Prosecutor would have had the document ready to produce if questioned by the Judge. The pendulum swings.

However, tellingly, Stephen did not return to his wife and eight children living with their families in Western Australia, but continued to live with Louisa and Lily, following them to Bundanoon in 1899 when they were transferred by the Postal Department, dying there from a stroke five years later. His obituary (below) stated that his death was primarily due to paralysis, this being accentuated by a fall from a tram in Sydney about nine months before, up to which time "he had been quite hale and hearty". The funeral notices inviting Stephen’s many friends to attend were placed by his two daughters, Louisa and Lily, and his widowed son-in-law Adolph Poulsen (my great grandfather with whom Stephen had a close relationship, sharing the raising of my young motherless grandmother and her siblings with help from Louisa and Lily, eventually sharing adjoining graves in death). No mention of Stephen’s wife and no bereavement notice placed by them in the papers. Nor did his obituary mention any of his family apart from Louisa, Lily and Adolph. However, his daughter Elizabeth Rommeis, when told of his impending death, did travel from Perth to Bundanoon, but not in time to see him before he died. She did stay for the funeral.

Stephen's wife, Mary Tobin, died in Perth nine years later, in 1913.  At the time of her daughter Alice's marriage in July 1897, the month preceeding Stephen's trial, Mary hosted the reception at her house named 'Illawarra' in Perth, the same place of her death in 1913. Alice's brother-in-law gave her away at the wedding in the absence of her father. Immediately following her wedding, Alice travelled to Sydney to give evidence on behalf of her father.  So it would appear that Mary may have abandoned him after forty years of marriage, which may say it all-  the ultimate betrayal of trust in a marriage. If she believed in his guilt, there could be no forgiveness.

Mud sticks. Regardless of  whether Stephen was guilty or innocent, the fact that the case was recorded in the newspaper condemns the man for eternity. In the present era, we find television news stories and social media inflicting the same damage. It should also be taken into account that if a trial by judge and jury at the time could not come to a clear verdict with all the evidence at hand, then what hope do we have of bettering that a hundred years on.

Have I attempted to whitewash the evidence because the truth is too painful? The crime, if committed, is unforgiveable. I just don’t know. I can only leave the reader to draw their own conclusions.
This is one story where there is no pride in the telling.

Stephen's obituary in The Catholic Press:

Another obituary in the Freeman's Journal (Sydney) Sat 5 November 1904 p.29:

Funeral notices:

Sydney Morning Herald 28 October 1904 pp.6, 12-
Death and Funeral Notices

Burial Record: Waverley Cemetery, Sydney
Section 17, Grave No.2281- Katherine (has Kathleen) Poulsen (nee Tobin), Stephen Tobin, Theodore S. Poulsen
Section 17, Grave No. 2282- Ferdinand Adolph George Poulsen, Raymond H. Poulsen

Combined grave of the Tobin/Poulsen family at Waverley Cemetery
(see cemetery maps below)

(See Chapter 10- daughter Katherine Poulsen for more photos of this grave)

Western Mail (Perth) Fri 26 Sept 1913 p.34

Buried: Karrakatta Cemetery, Perth
Roman Catholic Historical Section AA, gravesite 0368- Mary Tobin, with her daughter Elizabeth Rommeis (d.3/8/1928), and son-in-law Edward (Karl August)  Rommeis (d.3/10/1901)

Photos taken April 2013- gravestone obviously vandalised

Death certificates of Stephen Tobin and wife Mary Tobin nee Driscoll

Waverley Cemetery Grave Location Maps- Sydney

NB. grave location map below relates to the black line (mid right) in the blue rectangle (Section 17)

Location of Poulsen/Tobin grave marked * near wall, Waverley Cemetery

Grave marked * overlooking the sea at Waverley Cemetery

Map of Karrakatta cemetery, Perth

    Roman Catholic AA Historical Graves in lower centre of map (orange)
Mary Tobin and the Rommeis' grave in section marked red.

AA Historical RC burial section Karrakatta Cemetery

© B.A. Butler

Contact email  butler1802 @hotmail.com (no spaces)

Link back to Introduction:

Links to all other chapters in this blog:

Tobin and Driscoll family in Tipperary Ireland

Tobin family settle in Gerringong, NSW, Australia in 1857

Tobin family settle in Tallebudgera Queensland in 1870

Life at Tallebudgera for the Tobin Family until 1892

Tobin family move back to NSW and Western Australia- deaths of Stephen and Mary

Stephen Tobin's sister Catherine Tobin- marriage to Timothy Guinea

Bushrangers in the family

Stephen Tobin's sister Ellen Tobin- an Irish female orphan immigrant in 1850

Stephen Tobin's daughter Katherine Tobin- marriage to Adolph Poulsen

Sons of Stephen Tobin and Mary Driscoll

Daughters of Stephen Tobin and Mary Driscoll

Irish Roots of Tobins, Driscolls, O'Briens, and Whites

[i] The Cumberland Argus and Fruitgrowers Advocate (Parramatta), Sat 28 August 1897, p.3