[assault – sodomy – Aboriginal language]

R. v. Wilson

Court of Criminal Judicature

Bent J.A., 28 March, 1814

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 5/1121

[277] Caleb Wilson, of Parramatta Labourer charged with assaulting one James Cunningham at Parramatta on the 14th of December 1813, with a felonious intent there and then and there to commit an unnatural crime on the person of the said James Cunningham.

            To this Information the Prisoner pleads

            Not Guilty.

            (Information No. 16)

            James Cunningham sworn and examined for the Prosecution says: I am a free man I live at Windsor and was a settler there. I was at Parramatta on the 14th of December. I have known the prisoner two or three years. I slept at the house of Edmund Wright at Parramatta on the night of the 14th December. He keeps a house of entertainment for travellers. Caleb Wilson the Prisoner was there that night. The prisoner and I slept in the same bed with Wilson in a back skilling I believe at the [278] back of the Kitchen. I slept till the morning. When I awoke I found that prisoner close by me, his face towards my back and he was pushing right at me. His private parts were in his hands pointing against my back close to my sump, making a motion. I jumped out of bed immediately and I struck at him. I struck at him three or four times with my fist and hit him, till I knocked my hand against the wall. I then ran into Edmund Wrights bedroom and begged of him to let me have a stick or a whip. He said he had not any and asked me what was the matter? I told him the whole business. I did not get a stick. I did not beat him with a stick at all. I then went out of doors and saw a man named Philip Reilly a Constable. I told him what was the matter. I took Reilly immediately to the prisoner in the house and he asked him why he acted in such a manner and he the Prisoner said he thought he was in bed with a woman. Reilly apprehended him immediately. He was taken before Mr Marsden that very morning and in consequence of my information he was committed to Gaol. I am sure the prisoner was perfectly awake. He did not say a word when I was beating him. Judith Simpson, Edmund Wright and his wife were in the house at the time.

            Cross examined says: I did not exhibit a similar charge against any persons for a like crime before Mr Bell at Hawkesbury four years ago. I do not go by the nickname of Wingajemmy to my knowledge. [279] By the court says: It was daylight at the time. I did not take notice of the prisoner's eyes. I bounced out of bed immediately and struck at him. I never slept before with the prisoner nor in the same house with him. Nor ever in that house. Nor should. I have slept there that night if Mr Lucas had been at home to have given me what I went to Mrs McArthur’s for. I did not take notice of there being more than one bed in the room. I never recollect ever having any quarrel with the Prisoner.

            Edmund Wright, sworn and examined for the Prosecution says: I live at Parramatta. James Cunningham slept in my house one night in December last. I cannot positively tell the day of the month. Caleb Wilson slept in the house that night. They slept in the same room. In the same bed. There was only one bed. My wife said I suppose you Hawkesbury people have no objection to sleep together. They had no objection. Early in the morning, Cunningham came to the door of my bedroom and says Wright give me a Stick, I thought he wanted to take his horse out of the yard. I said I have not got one. I said what do you want with a Stick. He replied this damned Taylor wanted to bugger him. He then left me and went into the room and I heard him swearing and kicking up a row with this Wilson. I then left him. I did not think anything of it. I thought it was only joke. When I came in I saw the Constable Reilly in charge of the prisoner.

            [280] By the Prisoner says: The Prosecutors has always gone ever since. I have known him by the name of Whannryjemmy. It means lying James. It is a native name. When a Black man thinks you are telling him a lie he says “Whanya”.

            By the Court, says: Cunningham appeared to be in a great passion. I supposed it to be a joke because I could not have thought of such a thing. The Prisoner and prosecutor had not any dispute in my house. I cannot say Cunningham was perfectly sober when he went to bed. He went to bed between nine and ten. As near as I can guess it was between the hours of five and six in the morning when this took place.

            Phillip Reilley sworn and examined for the Prosecution says: I am a Parramatta Constable. I apprehended the Prisoner at the Bar on the 13th of December last, by Cunningham’s desire. I told the prisoner that it was a truly atrocious crime if what Cunningham stated to me was true. He told me he thought he was in bed with a woman. That the woman lived at the Hawkesbury and had made proposals to come and live with him and that he dreamed he was in bed with her, he said there was a woman from the Hawkesbury had made a proposal to leave her husband and live with him, and this he deemed it was her. The prisoner was taken before Mr Marsden that morning and committed for trial.

            The Case closed on behalf of the Prosecution.

            [281] The Prisoner presents a written memorial to the Court which is read in his behalf.

            James Mileham Esquire sworn and examined for the Prisoner says: I have a faint recollection of the prosecutors having exhibited a similar charge at the Hawkesbury against some persons before me [and] Mr Bell. It is so many years ago I cannot speak positively. I cannot speak positively as to the charge being dismissed. I have known the prisoner some years. I never heard anything against him: he was a married man and has a family. I know James Cunningham the Prosecutor. I would not believe him on his oath. I would not place any confidence in his oath. I think he may be biased to say anything.

            By the Court. This opinion is founded on a general knowledge of his character. I have heard that the prisoner was after one Judith Simpson. I do not know if the prisoner had cohabited with any woman since the death of his wife. I am one of the resident magistrates at Windsor. I do not know of any quarrel between the prisoner and prosecutor. Judith Simpson cohabited with one James Smith.

            Mr John Howe sworn and examined for the Prisoner says: I am chief constable at Windsor. I have known the prisoner six years. He lives at Windsor and has done for four or five years and before he lived there he lived at a farm about 3 miles from Windsor. My firm opinion of the Prisoner from a knowledge [282] of his character is that he would not be guilty of the charge in question. I always conceived him to be a modest and decorous man in his conduct. He was a married man, he has two children. One about eleven or twelve, the other two or three years younger. I understood his wife died on the passage here. I know of his having made proposals of marriage to two different women since married. I cannot positively say whether he has cohabited with any woman since the death of his wife. I know that Prosecutor will. I really should doubt his oath. His character for a liar is proverbial at the Hawkesbury.

            Andrew Johnson sworn and examined for the Prosecution says: I have known the prisoner about ten years. I have seen a good deal of him. He has not lived nearer to me than Windsor used to Parkland head. I have frequently seen him. I have slept at his house and he at mine. I do consider him a modest decorous man in his conduct. His behaviour is quite the reverse to anything of this kind. I believe he has made proposals of marriage to several persons. He has two children a boy and a girl. The girl is twelve or thirteen years of age. The boy is younger. The prosecutor is a notorious liar. He is known by the name of Whinnya Cunningham. The children call him by no other name.

            The Court having maturely considered and fully understood that the premises.doth adjudge that the said Caleb Wilson is Not Guilty of the Misdemeanour wherewith he stands charged.

            Ellis Bent J.A.