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

R. v. Dundas [1809] NSWKR 15; [1809] NSWSupC 15

sodomy, attempt

Court of Criminal Judicature
Atkins J.A., 18 March 1809
Source: Court of Criminal Jurisdiction, Minutes of Proceedings State Records N.S.W., 5/1150

           [91] David Dundas place at the Bar Vide Indictment No 1.

           Sergeant Major Whittle Sworn:

           Question: Was any intelligence of an unpleasant nature reported to you on Tuesday the 14th Instant?

           Answer: I was walking in the rear of the Barracks that morning, and I heard a Corporal, and several of the men talking together about an attempt that was made on three of the Sentries the preceding night, I went to them, and asked them what was the matter, they told me that an attempt was made by the Prisoner on three of the Sentries to have an improper connexion with them; on asking who the Sentries were, they told me their names were Thomas Lynch, William Hutton, and James Stephens; on requiring [92] of Thomas Lynch and James Stephens the circumstances from them they informed him, that they did not have the person, Deponent says, he cautioned them not to make use of any Gentleman's name, particularly Mr Dundas's name as he can not think he was capable of committing such a crime. I awaited until Hutton was fetched to me, on his coming I asked him what had happened to him on his part the preceding night, he stated it, and particularly said it was the prisoner that had made the attempt. I then took the three to Major Abbott.

           Question by Prisoner: then you have nothing respecting this witness but from hearsay?

           Answer: I do not.

           2: Was you not the first Evidence that was examined before the Magistrates on the 14th?

           Answer: I was.

           Peter Ashford a Corporal in the New South Wales Corps Sworn:

           Question: would you Corporal of the Main Guard on the 13th Instant?

           Answer: I was.

           [93] 2. Who was planted Sentry at the Hospital Wharf between the hours of 8 and 10 at night?

           Answer: William Hutton.

           William Hutton a private in the N.S.Wales Corps sworn

           Question 1: Was you one of the Main Guard on the 13th instant?

           Answer: I was.

           2: Was you planted Sentry at the Hospital Wharf at eight o'clock, and did you remain Sentry at that place from eight to ten?

           Answer: I did.

           3: state to the Court distinctly what passed between those hours?

           Answer: Before 9 o'clock, several Gentlemen passed me, and went down towards the end of the Wharf, when some person hailed with the Hibernia, and a Boat came from her, I went down towards the end of the wharf, and some persons in the Boat, which I suppose to be some of the Gentlemen that had passed me, there was a woman in the Boat, I asked her where she was going, her answer was "not/or [94] far", I told her that was no answer, and that she should not go in that Boat, Mr Dundas was then standing on my right hand, and told me she should go, I answered she should not go; Mr Dundas then told me that I did not know the duty of a Soldier, or I would not act in that manner; I answered him that I knew my duty as a Soldier on Shore, as well as he did as a Captain, on board. When one or two of those Gentlemen that were in company with Mr Dundas, took him a short distance to the rear of me, and returned. One of those Gentlemen told Mr Dundas not to trouble the Sentry in that manner, as he was doing nothing but his duty, by this time the woman had come from Boat upon the Wharf, when they all went away from me; in a few minutes the woman returned by herself, I at that time saw Mr D. as for as the corner of Mr Nicol's pailing, and shortly after he returned alone, and enquired of me as he passed me where [95] was the woman; I told him I knew nothing about her, observing he was in liquor. The prisoner then went to the end of the Wharf, and entered into the Conversation with the woman. All that I heard of such conversation was, the woman saying, I cannot, or will not, or both. He then left the woman and passed me, and I again saw him as far as Mr Nichols's pailing, when in a short time he again returned, which he had done two or three times before, and came up close towards me, and laid hold of me of my fingers. I immediately pulled my hand from his hand. He then told me not to mind him, you and me can do something between ourselves, and stroke me down the fore part of my trousers with his hand, I then asked him what he meant, and he again desired me not to mind him; now says he, what shall I give you to give me a genteel T_g. I then paced one pace backwards, and brought my arms to a Part and desired him to gone for a [?] [96] or a   B __r (but cannot speak positively of those words I make use of ). Or I would put my bayonet into his guts, he then left me, and went towards camp some time after I heard a foot approaching towards me, I challenged, and an answer was given "Dundas" he approached so night time that I could see it was the same person that had before been with me, I desired him to go, and not trouble me upon my past. He then went away, and I saw him no more that night.

           2. How long have you known Mr Dundas by sight?

           Answer: Since he came in the Fravanish.

           You have said it was dark, do you not think it possible you might mistake him for another man?

           Answer: I am certain I did not mistake.

           3: Have you not seen a man very much resembling Mr Dundas both in appearance and dress?

           Answer: No I never did.

           4: How was the person dressed that had this conversation with you?

           Answer: A dark [?] coat, the vest I cannot [97] speak to but he had white trowsers or Breaches on.

           5. Had he Boots or Shoes on ?

           A: I am of opinion he had shoes.

           6. Did you ever hear Mr Dundas speak before that evening ?

           Answer: I have.

           7: Would you know him by his voice among a crowed of persons?

           Answer: Yes.

           8: What is the Gentleman's name who called him "Dundas" when he came to the Wharf?

           Answer: I do not know.

           9: Can you positively swear that the same person who told you that the woman should go into the Boat, was the same that acted in the manner you have described?

           Answer: I do positively swear it was.

           10: Did the person that told you the woman should go with the Boat, appear to you to be in a state of Intoxication?

           Answer: He was.

           11: Were there any other persons on the Wharf at this time Mr Dundas and the other Gentlemen came there?

           Answer: Yes, there were an among others the woman.

           [98] 12: Did those persons all leave the Wharf at the same time the Gentlemen left it?

           Answer: No they did not.

           13: Why did not use secure the person that had acted in the manner you have described?

           Answer: Because he was in the character of a Gentleman and I was much agitated.

           14: You say you was much agitated, at the conduct of this person, and you say there were a number of persons on the Wharf within the range of your part, did you mention what had passed any person?

           Answer: I did mention it to one person.

           15: How long was it after these circumstances had passed, that you mentioned it to this man?

           Answer: From ten to twenty minutes.

           16: During that interval had not many other persons passed you?

           Answer: None.

           [99] 17: Did you report it to the Corporal, or the Sergeant on your return to the Guard House?

           Answer: I did not.

           18: Did you not mention it to Sergeant Johns?

           Answer: Not that night nor to any other person except to the man at the Wharf.

           19: Was the man that you mentioned it an acquaintance of years?

           Answer: No.

           20: Is it not together surprising, that you should tell a stranger of what had happened, and not to your Sergeant, Corporal, or Comrades?

           Answer: I observed to you before, but I was very much agitated, and this man making mention of Mr Dundas's name, and asking me if he was gone, caused me to give him this reply.

           Question by Prisoner: You have stated that I went down upon the Wharf with several Gentlemen, some of whom went into Boat, and some remained at the Wharf with me, was the girl in the Boat or what became of her afterwards?

           Answer: The Girl can account where she went.

           [100] 2: What became of the Gentlemen, that came to the Wharf with me, did they go away, and leave me there, or did I go with them?

           Answer: The Gentleman went up toward the Camp with Mr Dundas and I saw them as far as Mr Nichols's pailing, and Mr Dundas returned by himself.

           3: Was there any other boat went off from the Wharf, except the one that went on board the Reliance?

           Answer: I cannot say whether there was or was not any boat went from Wharf at that time.

           4: How long time had elapsed, between the person who went to camp, and whom you have sworn to be me, and the return of that person, who answered "Dundas" when he was challenged by you?

           Answer: I cannot tell, it might be from 10 to 20 minutes.

           [101] 5: In what situation did you come to this Country?

           Answer: As a prisoner.

           6: Did you come to this country for Perjury?

           Answer: No.

           Thomas Lynch a private in the NS Wales Corps sworn:

           Question 1: Was you on the Main Guard on Monday the 13th Instant?

           Answer: I was.

           2: Was you planted Sentry at the Bonded Stores at ten o'clock on that night, and did you continue on that post until twelve?

           Answer: I did.

           3: State to the Court what particularly part during that time?

           Answer: About Eleven I Challenged some person, and he answered "Gentlemen". I told him to advance, and he came close to the Sentry Box, and he asked if a woman had not gone through the passage between the Two Stores, I told him no; he replied there was one; I again repeated that no woman had gone that way, but if he thought there was, he might go and see; he then rubbed his hand on his upper part [102] of my Trousers; I then told him to go away, or I would take him prisoner he then stepped away.

           Question: Can you take upon yourself to say who the person was?

           Answer: I cannot.

           2: Are you acquainted with Mr Dundas?

           Answer: I am not.

           3: Was the person drunk?

           Answer: He was.

           4: How was the person dressed?

           Answer: I cannot tell.

           5: Are you positive as to the time you challenged this person?

           Answer: Just as he passed, the town clock struck Eleven.

           James Stephens a private in the New South Wales Corps Sworn:

           Question: Was you on the Barrack Guard on Monday the 13th Instant?

           Answer: I was.

           2: Was you posted Centry on Colonel Patterson's House at ten o'clock on the night.

           Answer: I was.

           3: Did you remain there until twelve?

           Answer: I did.

           4: State to the Court what passed during the time you was Centry?

           [103] [blank]

           [104] Answer: About 20 minutes after 11 o'clock, I was walking backwards and forwards on my part I saw a person advancing and I challenged "who comes there". He made no answer, and I challenged him a second time; he then came up and asked me if I had seen a woman pass that way; this question he repeated; I told him that no person had passed him since he had been Centry; he then asked me of what time I was planted Sentry. I informed him at 10 o'clock; he then with his fingers, touched me in the palm of my hand and took hold of me by my fingers, and rubbed the back of my hand down the front of his breeches or trousers; I then pulled my hand from him, and ordered him to leave my part immediately, and go home for he appeared to be in liquor; he then went away.

           Question: From what part of the Camp did he come?

           Answer: From the back of the Colonel's pailing.

           [105] 2: Which way did he go after he went away?

           Answer: Down towards Richard Cheers.

           3: How was this person dressed?

           Answer: It was a very dark night, that he appeared to me, to have a dark coloured Coat, and a white waistcoat and I think the colour of his trousers were dark.

           4: Do you know who the person was, that accosted you?

           Answer: I do not, he was a middling stout man.

           Sergeant Johns of the New South Wales Corps Sworn:

           Question: You was Sergeant of the Main Guard on Monday the 13th Instant.

           Answer: I was.

           2: William Hutton was a private with you on that Guard?

           Answer: He was.

           3: Did he not inform you of some particular circumstance that had happened to him, whilst Centry at the Hospital Wharf, between the hours of eight and ten?

           Answer: Yes he did.

           4: State the Information he gave you?

           Answer: On the 14th in the morning, between 5 and 6 o'clock, he informed me that he had been Centry at the Hospital Wharf between 8 and 10 on the 13th and that between 9 and 10 a Gentleman [106] had come to him, accompanied by Mr Davison, as far as Mr Nichols's paling; the Gentleman came up to him, and felt him with his hand, and asked him what should he give him for a genteel T__g. That he the Centry stepped back, a yard or two, and told him, if he did not go off his post, he would run the bayonet through his Guts, and that he called him a B__r or some such name. That the person then left his post, and returned before he was relieved in the same manner; he observed that had a white pair of Trousers on, and that one of his knees were dirty; that he again ordered him from his post, or he would either take him prisoner or run him through. He then told me he did mean to keep it a secret of his name was "Dundas."

           Question: Did Hutton signify to you, that he had already told a stranger the Story?

           Answer: Some of the guards knew it some time before I did.

           [107] 2: Did he tell you he knew Mr Davison?

           Answer: He did.

           William Thiny Sworn: says that he was on the water at the Dockyard on the 13th about 10 o'clock some person came to him and offered him £5 to have a connexion with him, but that he is certain it was not Mr Dundas.

           James Fox a Watchman, Sworn, corroborates the Testimony of the preceding Evidence.

           Mr William Hossley Surgeon of the Descent, Sworn, says, that he had left Mr Redfern at a little after ten, that he saw some person at the Dock Yard paling, that passing Mr Wells's home, he was asked by Mr Wells if he had see a person at the paling; that he had observed him for some time, and that he supposed he was meditating some mischief; the Watchman then informed himself, and Mr Wells, with what had passed. Soon after Mr Dundas came up, apparently in liquor, and the circumstances of the Watchman was told him says he has no reason to believe it was Mr Dundas that he had seen [108] at his paling and that the Watchman said the person was Mr Donovan.

           Mr Wells Sworn corroborates the testimony of Mr Hossley.

           Here the Evidence on the part of the Crown closes and Mr Dundas being put on his defence calls Walter Davison who being Sworn,

           Question by Mr Dundas: Was you at the Hospital Wharf on Monday night with me, and if you was, relate to the Court what passed?

           Answer: Between 6 and 7 o'clock on Monday Evening, I went to Mr Blaxcell's house, in company with Mr McArthur, Mr Kent, and Captain Harrison. I remained there until half past Eight, when I walked down to the Wharf with Captain Dundas, Captain Burnside, and Mr Burton and Dr Jones on our arrival at the Wharf the [?] was hailed for a boat to come on Shore, and also after me, Captain Burnside and Mr Burton stepped onto the boat; two or three minutes afterwards, I discovered a Woman sitting in the Boat with them and heard the Sentry telling Captain Dundas [109] that he was only doing his duty in preventing that woman going on board, It struck me instantly, that it was so, as the admission fly had not been lashed, and in consequence of me communicating this to Captain Dundas, we headed out of the boat. The Boat then shoved off to the Wilhelmina, and I walked to that end of the wharf where the Sentry was, and asked what woman that was, when the woman herself and some Gentlemen said it was Rose Lucett. Mr Kent and myself then walked away arm in arm and Captain Dundas followed with the Woman; I think we all stopped opposite Mr Morris's house, and entered into conversation for a short time, after which Mr Kent and myself walked on before Captain Dundas, and the woman still following us until we got opposite William Blake's house, when Mr [?] and myself again stopped with Captain Dundas and the woman came up and I believe the [110] conversation then was to the last of my recollection, interrogating the Woman whether she was not very much dispirited by not getting on board the Brig. A short time after, Mr Ghant and myself again left there, at I suppose might be from 10 to 15 minutes, counting from the time the woman had been taken out of the boat, and we had left the Wharf, and after walking a short way I [said] to Mr Ghant, that we should return, and see Captain Dundas home, as he was very merry with liquor. Mr Kent objected to it, and in consequence we walked home calling in to Mr McMillan on our way home and as we passed the stores opposite Bevans ...

           Mr Thomas Kent sworn,

           Question by Mr Dundas: Was you to the Hospital Wharf on Monday night with me and if you was relate to the Court what passed?

           Answer: Mr Kent's evidence corroborates the testimony Mr Davison.

           [111] Mr Dundas calls Mr Driver who being Sworn,

           Question by Mr Dundas: As you was at my house on Monday night please to state to the Court at what hour I came home?

           Answer: At near 11 o'clock.

           Question: Did I go out again?

           Answer: No.

           Dently Black Mr Dundas's Servant Sworn,

           Question by Mr Dundas: At what time did I return home on Monday night?

           Answer: About 20 minutes before 11 and did not go out again that night.

           The Prisoner delivers into Court the paper No 1.  

           Not Guilty.

Richard Atkins.

Published by the Division of Law, Macquarie University