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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Barsby [1788] NSWKR 1; [1788] NSWSupC 1

assault - convict discipline - drunkenness - flogging

Court of Criminal Jurisdiction
Collins J.A., 11 February 1788
Source: Court of Criminal Jurisdiction, Minutes of Proceedings, Feb. 1788 to Oct. 1794, State Records N.S.W., 5/1147A [1]

[1] First criminal court

Head Quarters - in Port Jackson, 11th February 1788

At a Criminal Court of Judicature, held by order of his Excellency A. Phillip esq., Governor and Captain General in and over the territory of New South Wales and its dependencies, for the trial of such offenders as should be respectively brought before it.


The Judge Advocate

Captain John Hunter - Lieutenant H.L. Ball

Lieutenant William Bradley - Captain John Shea

Captain James Meredith - Lieutenant John Creswell

The Act of Parliament for constituting the court, his Majesty's commission for the Judge Advocate, and the Governor's Precept for convening the members, being read and the court duly sworn.

Samuel Barsby a convict, was brought before the court, standing charged with personally abusing Benjamin Cook, Drum Major to the detachment of Marines, and striking John West, a drummer in the said detachment, with a cooper's adze, thereby putting him in fear of his life, and, for repeatedly abusing the centinel, and other soldiers of the guard, while in the custody, on the afternoon of Friday the 8th instant.

Second Lieutenant Clark of the Marines, being called and duly sworn, deposed

that on Friday afternoon, the 8th instant, as he was coming towards the guard, he saw the prisoner, and B. Cook, Drum Major of the detachment, quarrelling together, and high words passing between them, on inquiring into the cause, he was informed by the Drum Major, that the [2] prisoner wanted to fight with one of the convicts, but in preventing him, he had struck John West, drummer belonging to the said detachment, and otherwise much abused himself; on which he ordered him later taken to the guard, but the prisoner was very refractory and would not go; but on some of the guard coming to the place, he was forcibly taken away, and left in charge of the Serjeant of the guard; and went himself to seek for the officer of the guard, who he acquainted of his having left the prisoner in charge of the guard.

Question from the court. Did the prisoner belong at that time to any of the working parties?

Answer. He does not know. The prisoner would not give a direct answer. He had in his hand a cooper's tool, which appeared broken.

Question from the court. In what manner was the prisoner refractory?

Answer. He refused to go, on his being directed to go to the guard, and would not, though laid hold of by the Drum Major, resisting him with the adze, or broken tool he had in his hand, untill taken away by the guards.

Question. Did the prisoner appear to be in liquor?

Answer. He did.

Question. Do you know, where the prisoner got the liquor?

Answer. Know not.

The prisoner had no question to put to this evidence.

[3] Benjamin Cook, Drum Major to the detachment, being called in and duly sworn, deposed that on Friday the 8th instant between the hours of two and three, as he was returning from the guard on this side of the water to his own incampment, he saw the prisoner wrangling with another convict. He ordered them both to go to their work; one of them immediately did. The other, the prisoner, asked him what business he had with him, and bid him mind his own affair. He repeated his orders for him to go to his work, telling him if he did not, he would send him to the guard. With that, he denied him having any authority over him and seemed as if intending to strike him with the adze, but he started aside, and struck him (the prisoner) with a cane he had in his hand. At that moment Lieutenants Clarke and Collins came by, and ordered him to take the prisoner to the guard, and directed John West the drummer to assist him. He was still very troublesome, not chusing to go, and struck at John West with the broken blade of the adze. He seized the prisoner by the hand, taking the hammer part of the adze from one hand; while West, did the same by the other part. During the tussle, the guard came up, and took the prisoner in charge.

Question from the court. What became of the adze ?

Answer. It was delivered to the Serjeant of the guard.

[4] Question. Did the prisoner appear to be in liquor?

Answer. He did.

Question. What was the occasion of you in striking the prisoner with your cane?

Answer. He thought the prisoner was going to make a blow at him with the adze, by seeing him lift the weapon up.

Question from the prisoner to the witness. Did you see me strike John West the drummer with the adze ?

Answer. I did.

Question per the court. What was the reason of your interfering when you saw the prisoner wrangling with another convict?

Answer. To prevent a quarrel.

Question from the court. Did you hear the prisoner make use of any abusive language?

Answer. He was abusing the convict with whom he was wrangling, which occasioned his interference.

Second Lieutenant Collins of the Marines, being called and duly sworn was asked.

Question. If he remembered seeing the prisoner on Friday evening last?

Answer. He did.

Question. What did you observe in the prisoner?

Answer. He was struggling with Cook the Drum Major and West the drummer, who were endeavouring to take him to the guard.

Question. Did you see him strike at either the Drum Major or the drummer?

Answer. No, I did not. I saw the Drum Major and drummer endeavour to wrest the adze from him, which he endeavoured to keep from them.

[5] Question. Did you see him personally abuse the Drum Major?

Answer. No. He was only very refractory, refusing to go to the guard.

The prisoner had no questions to put to this witness.

John West, drummer in the detachment, being called in, was duly sworn. Question. Do you remember seeing the prisoner on Friday evening last between the hours of two and three.

Answer. I do.

Court. Relate what you observed in the prisoner.

Answer. I observed the prisoner wrangling with another convict at the end of the Governor's garden. I was in company with the Drum Major. We were returning to the camp, and on seeing the prisoner and another convict quarrelling, the Drum Major, attempted to separate them; but the prisoner prevented the other convict from leaving him. On the Drum Major's pushing him, he lifted up the broken adze, on which the Drum Major stept on one side, and struck him with his cane. He refused to go on being ordered. At this time Lieutenants Clarke and Collins came by, and ordered him (West) to assist in taking him to the camp; in attempting which, he struck him with the broken part of the adze on the side, which was then wrested from him; two of the guards were then ordered by the officers to take him away, which they did, the prisoner making much disturbance. The evidence further deposes that the [6] the prisoner was very insolent to the whole guard while in confinement.

Question. What all this time became of the other convict?

Answer. He went away.

Question. Did you hear the prisoner make use of any abusive language?

Answer. No other than to telling the Drum Major to go about his business.

Question. Did you think the prisoner was sober or in liquor at this time?

Answer. He appeared rather in liquor.

Question. Which part of the adze did the prisoner strike you?

Answer. Not the edge but the broken part.

Question. Which part of the adze did he appear to you to attempt to strike the Drum Major with?

Answer. The hammer part.

Question. Was the blow he struck you on the side a forcible one?

Answer. It was. Had it been with the edge, it must have consequences.

Question. You said you saw the Drum Major push or shove the prisoner; did he strike him with his cane, before the prisoner lifted the adze ?

Answer. No, he did not.

The prisoner had no questions to ask the evidence. Does not recollect ever using seeing them before, he was in such a state of insensibility.

Mr Augustus Alt, Surveyor of the Lands, was called in and duly sworn. Question. On being desired to relate what he knows of the prisoner's abusing the centinel and guard while in their charge on the afternoon of 8th of this instant, he deposed [7] that on passing by the government yard that evening, Lieutenant J. Johnson, the officer on duty requested him to stop and observe the abusive language of the prisoner to the soldiers of the guard. He does not exactly recollect the words of the abuse, but were so disrespectful that the officer was obliged to order his hands to be tied and his mouth to be gagged. The man appeared very much in liquor.

Question. How long did you stop observing the prisoner?

Answer. About a quarter of an hour. He was abusing the guard the whole time; had got his hands loose, and was very noisy.

Question. Did he make use of any threats?

Answer. No, his abuse was low and general.

Lieutenant J. Johnson of the Marines being called in, was duly sworn,

Question. Were you the officer of the guard on Friday evening last?

Answer. I was.

Question. Do you remember the prisoner being in custody of your guard?

Answer. Yes, he was brought to it by 2nd Lieutenant Clarke.

Question. What condition did he appear to be in?

Answer. He appeared to be talking strangely to the guard, and very noisy.

Question. Did he appear in liquor?

Answer. Not at first. He did afterwards.

Question. Do you recollect the terms of the abuse to the guard?

Answer. Not when he was first put in charge of the guard.

[8] Question. What was the occasion of his hands being secured?

Answer. The Serjeant came and informed me that he was very abusive to the guard; on which I procured cords and sent Serjeant Baker to secure him.

Question. Did you go to the guard yourself?

Answer. I did. He was secured before I got down.

Question. Did you hear any abuse yourself from the prisoner.

Answer. I heard him very abusive to the centinel, and on finding him with the gagg off, perceived he was much in liquor, and did not think fit to order it on again.

The prisoner had no question to ask, but complained of being beat by the centinel.

The evidence further deposed, that he gave orders to the evidence, to strike him with the instrument, if he continued his insolence.

Richard Clinch, Serjeant of Marines was called and duly sworn, deposed the prisoner was brought to the guard, (of which the evidence was Serjeant ) between the hours of two and three on Friday afternoon, and was ordered by Mr Johnson, to put the prisoner under charge of the centinel. Some time after, he was called to by the centinel, who said he could not tell what to do with the prisoner, he was so abusive. He acquainted his officer with this, who ordered, if he continued his abuse, he should be tied and gagged, which was done. At the same time, he repeatedly called the sentinel and the guard bloody bougres. He continued in charge of the guard [9] untill after 6 o'clock, when he was removed to the Marine guard, and was abusive nearly the whole of that time.

Question. Did you observe the centinel strike the prisoner with the butt end of his musquet.

Answer. No.

Question. How long was his mouth gagged.

Answer. In about three minutes he got it out and it was not put in again.

The prisoner had no questions to ask this witness.

William Mitchell, private Marine, was called in and duly sworn. Deposes that, on Friday evening last between the hours of four and six, he was centinel over the prisoner; that while he was noticing the Governor as he passed, the prisoner had got the gagg off his neck. As soon as the Governor had passed he sent for the Serjeant of the guard and acquainted him of it. The Serjeant returned to the guard. While he was gone the prisoner gave him a great deal of abuse; and though ordered to be quiet, on pain of his running him through the body, he would not but dared him to do it; and on his being so dared, he struck him with his bayonet, which was bent by the blow. The Serjeant on seeing the bayonet, ordered him, only to notice whatever he might say. The prisoner said, he would not be confined by any bougre on the island, that he was brought there by a lousy drummer, Benjamin Cook, and was kept under by a parcel of Marines.

On being questioned how the bayonet was bent, he answered it was bent by his pushing against [10] it, near the socket.

Question. Did he at that time appear in liquor?

Answer. No. He then appeared to be sober.

Question. Had you an occasion to strike him more than once?

Answer. No. He gave cause enough, but I only struck him once.

Question. Had you received orders to strike him?

Answer. Yes, from the man I relieved.

The prisoner being called on his defence, said, that he was employed as a cooper in the camp the other side of the water, and in doing the work he was about, he broke his adze; and in coming over to this side to get it changed, he met some seamen, who wanted to find the women's camp. On his telling them where it was, they gave him more than three parts of a bottle of rum. He drank the greatest part of it, and then came to look for Mr Freeman to get his adze changed. On his not finding him, he was returning to the camp, but met with Thomas Ames, a convict, with whom he had some general animosities. A dispute immediately ensued between them, and the liquor began to operate; that the Drum Major then came by, wanting to part them, but he does not recollect John West, nor any part of the abuse he stands charged with, and pleads his good behaviour while on board the Charlotte Transport. He expresses himself very sorry for his offence, solicits the mercy of the court, and promises good behaviour in future.

[11] The prisoner having ended his defence, the court proceeded, and were of opinion, that he is guilty of the whole of the charge exhibited against him; and do adjudge him to receive 150 lashes, on his bare back, with a cat of nine tails.

Guilty. 150 lashes.


[1] This was the English first trial held on Australian soil. On 6 February 1788, the women of the First Fleet landed at Sydney Cove. That evening there was an uproarious celebration. On the 7th, Judge Advocate David Collins read the Act and Letters Patent establishing the courts. Samuel Barsby continued to celebrate the next day, the 8th of February, and three days later was the first person brought before Judge Advocate David Collins and the six officers of the Court of Criminal Jurisdiction.
See J. Currey, David Collins: a Colonial Life (Melbourne University Press, 2000) at 46-49.

We thank Jan Daly for help in transcribing a couple of difficult words in this manuscript.



Published by the Division of Law, Macquarie University