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

R. v. Wilkinson [1796] NSWKR 2; [1796] NSWSupC 2

Sodomy

Court of Criminal Jurisdiction

Collins J.A., 23 April 1796

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, 1796 to 1797 Apr 1795 - Dec 1797, State Records N.S.W., 5/1147B[1]

[81] Francis Wilkinson, labourer, was brought before the court charged for that, he on the sixth day of March, last, at Macquarie place in the County of Cumberland, and in the year of our Lord one thousand seven hundred and ninety six, with force and arms at the place and county aforesaid, in and upon one Joseph Pearce, yeoman, in the face of God, and our Lord the King, then and there being, did make an assault, and him the said Joseph Pearce, then and there did beat, wound and illtreat, so that his life was greatly despaired of, with an intent that most horrid, detestable and sodomitical crime (among Christians not to be named) called buggery, with the said Joseph Pearce, against the order of nature, then and there feloniously, wickedly, and devilishly to commit and do, to the great displeasure of almighty God, to the great damage of the said Joseph Pearce, and against the peace of our said Lord the King, his Crown and Dignity.

The prisoner on his arraignment, pleaded not guilty.

Joseph Pearce, being sworn deposed, that he is a settler on the East Creek at the River Hawkesbury. That he is touched of sixty years of age. That the prisoner came out in the same ship with him. That on the day this affair transpired, he came and spoke to the prisoner at the house of one Robinson a settler. That several people were present, who asked him to drink. That he played with an old man at quoits, for half a gallon of parley which having lost, he drank more and became fuddled. That he was playing and smirking [82] the whole day. That he left the house an hour before sunset. That he turned out of the path and laid down in an [heap] pulling off his shoes and putting them into the bosom of his shirt. He lay down upon his face. That having laid there a considerable time, the prisoner came by and got a top of him. That he was waked by his attempts. That he abused him for such conduct, endeavoured also to extricate himself from him and called and bellowed by no person came near him. That having left him, the prisoner returned at day light. That he taxed him with his attempt to which the prisoner did not act in any manner. That the prisoner had carnal connection with him when he had him on the ground. That he was taken ill in consequence of the prisoner's treatment of him and kept his bed a fortnight. That he was ashamed of what had happened to him and therefore did not make any complaint to the surgeon or any one else. That although he had drank a great deal, yet having slept in the hollow, for two or three hours he was nearly sober when the prisoner came to him. That he was dressed the same as when he saw him at Robinson's house. That he saw and spoke to him and called him by his name and the prisoner also called him [83] by name. That he mentioned what had happened to him to some people the next day, but did not mention the name until three days afterwards. That he then hold Rickerby the constable the man's name, the prisoner. That when this assault was made on him he was three miles from his own house. That he left the prisoner in Robinson's when he came away...

The prisoner in his defence said, that next morning after this affair happened, witness spoke of it, but declares he knew not who it was that had assaulted him and that he offered four pounds reward to anyone who would give him information, and that [time] elapsed, before his name was mentioned. That hearing the prisoner had spoken of him he [called] a constable [to him].

Simon Freebody being sworn deposed that the prisoner slept at his house on the night that Pearce was assaulted. That he saw Pearce the next morning and asked him why he had not gone home. He said he had been drunk and lost in the woods. He then told him he [84] had been buggered, but that he did not know by whom, though he thought he should know his voice. He had lost his hat, which if he could find he should not care any thing about it. That Pearce's house does not lay in the same direction with his own. That Pearce staid the whole of the day at his house. That being at Robinson's house the preceding day, he saw Pearce and the prisoner there. He asked them both to come to his house, but Pearce refused. The prisoner said he would come. That the last time he saw the witness Pearce that day was between three and four in the evening, and he appeared neither drunk or sober. That the prisoner came over about 8 o'clock. That he staid there all the evening and until bedtime, when he went to bed that the prisoner slept in one of the other rooms of the house with one Smith. That the prisoner left his house an hour before day light saying he must go down to the [barn...]. He cannot swear that the prisoner did not go out of his house during the night. That Pearce did not shew him his trowsers. That in two of three days afterwards, he heard that Pearce had said it was the prisoner that when the prisoner came to his house in the evening, he appeared to be stern.

            Robert Smith, settler on the river (called by the prisoner) being sworn, deposed [85] that he lives at the back of Simon Freebody's. That he had slept at Freebody's for about three months. That he remembers the prisoner sleeping at Freebody's with him on the night that Pearce accused him of an assault. That they went to bed about 10 at night. There were seven or so others in the house. That he and the prisoner slept in a back room adjoining to the kitchen. That he woke at 12 o'clock and found the prisoner asleep. They had all been drinking that day. That they had all been over at Robinson's. He saw Pearce and the prisoner there. That he cannot positively swear the prisoner did not quit the house during the night, but if he did he must have passed near two or three people who were sleeping there. That he saw Pearce at Freebody's in the morning, but he did not stay there long. That the prisoner came over the preceding evening about dark. That the prisoner sat in the room with him and Freebody and some others until that time.

            Walter [Lunney] (labourer) called by the prisoner being sworn deposed that he was at Freebody's house the night the prisoner was there. The prisoner was laying between Smith and another man, and he laid down at his feet. That [86] he never waked during the night, but found the prisoner in the same place in the morning. That the prisoner came from Robinson's house to Freebody's some time in the evening, but cannot say when. That Pearce came the next morning, and staid till about ten. That he told every person there, what had happened to him... and told he knew the man. That he had lost his hat and his handkerchief. That he believes the prisoner laid down at Freebody's as soon as he came in until that time. That he does not know whether he went out or not before bed time.

Not guilty.

Note 

[1] Despite the colonial population being predominately male, there are only a handful of instances in the criminal court records where prisoners were accused of the act of sodomy. Referring to this trial, Collins briefly commented in his Account that "one soldier was accused by an old man, a settler at the river, of an unnatural crime, but acquitted". Although Collins refers to Wilkinson as a soldier, in the court record he is referred to as a labourer (at p. 81).

Collins, Account of the English Colony in N.S.W., vol. 1, 394.

Published by the Division of Law, Macquarie University