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

R. v. Cary [1834] NSWSupC 59

sodomy, capital punishment

Supreme Court of New South Wales

Burton J., 13 May 1834

Source: Australian, 13 May 1834[1 ]

Michael Cary was indicted for an unnatural offence.  Guilty.  The prisoner was then called up for judgment.  The learned Judge, in passing sentence upon him, observed, that he had been satisfactorily convicted, and no doubt could rest upon the mind of any man who had heard the trial, that he was guilty.  He had been convicted of an offence that all laws, human and divine, punished with death.  If there was any relief to a frail human being like himself, when passing the extreme penalty upon a prisoner, it was when the human followed the divine law.  Since the creation his offence had been punished with death.  Who'e [sic] nations had been rooted out of the earth for the like offence, which had arrived at such a height, that the Almighty considered it necessary to sweep them from the face of the creation.  It would be by the blessing of God if the boy of such tender age on whom he had committed the offence, recovered from the infamous lesson he had taught him.  The sentence of the Court was, that he should be hung at the usual place of execution, on Monday next, and that the boy who had witnessed the transaction, and the one on whom he had committed the offence, should be present at the time.  The prisoner as he left the bar, said he had no objection to die, he should obtain justice in another world.

Judge Burton - God grant it:

 

Notes

[ 1] See also Sydney Gazette, 13 May 1834, which reported the case as follows: ``Michael Carney was convicted of an abominable offence committed on a boy named Michael Minton, of the tender age of ten years, on the 17th of April last.  The prisoner was found Guilty on the clearest evidence, and after a most impressive exhortation from the Judge, was (no hope of mercy being expressed to him) sentenced to be executed on Monday morning next.  His Honor also directed that the prosecutor and a boy named Owen Davis, the only material witnesses in the case, should be present at the execution."  The trial took place on 12 May 1834, before Burton J.  For the judge's trial notes, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2415, vol. 12, p. 92 (calling the defendant ``Carney").  The boy, Michael Minton, said that he was 10 years old.  The boy said that the defendant chased him, put his hand on his mouth, pulled down his trousers and committed the act of buggery.

Cary (or Carney) was hanged at the Sydney Gaol on 19 May 1834: Australian, 20 May 1834.

Two other trials for ``abominable offences" were held in August 1834, both resulting in acquittal and the witness being charged with perjury: see Sydney Gazette, 21 August 1834; Australian, 22 August 1834; Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3285, vol. 102, p. 141.  The defendants' names were Daniel Coffey (or Coffe) and John Morris (or Morrison).  The witness was not named in the newspapers. However, the depositions for the case reveal that the unnamed witness (victim) was the 16 year Samuel Rooney. There was also another person mentioned as witness on the depositions' cover
sheet, his name being, John Mangan. Source: State Records of NSW, Supreme Court, Criminal Information, depositions and related papers, Item T38, No. 59. Thanks to Peter de Waal for the reference to the depositions.

Samuel Jones was sentenced to death on 15 February 1834 for an ``unnatural offence": see Sydney Herald, 20 February 1834; and see Australian, 14 February 1834; Sydney Gazette, 18 February 1834; the trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3275, vol. 92, p. 133.

In 1836, William Hazeldon was sentenced to death for sodomy on a boy: Sydney Gazette, 10 November 1836; Sydney Herald, 10 November 1836.  Mead was also sentenced to death for a nameless offence in 1836: R. v. Mead, Sydney Herald, 17 November 1836; he was hanged: Sydney Gazette, 1 December 1836; Australian, 2 December 1836.  For another 1836 sodomy case, see R. v. Warren, Sydney Gazette, 6 August 1836; Sydney Herald, 8 August 1836.

In 1835, William Lee was found not guilty of buggery of a girl of 10: 6 August 1835, Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2420, vol. 19, pp 34-70.

Published by the Division of Law, Macquarie University