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1842, Stephen Waters - Unfit For Publication
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The documentation of our history has to me always been a very important aspect. Although victories or celebrations are seldom part of this history, it’s important that it is put on record.

The cases recorded verbatim here, cover a very wide spectrum of emotions ranging from sadness, humour, violence, to compassion and even love.

For gay historians, this material gives an interesting insight into the lives of what we might call our ‘tribal ancestors’, for not only is the legal process on full view, but the evidence presented in each case gives us a window into these people’s lives, and how they managed their desires in a hostile society: where they might meet, how they might interact, and how they saw themselves and their ‘condition’.

Foreword by
Gary Wotherspoon

Peter de Waal

In the Central Police Court, George Harrison, alias “Carrie Swain,” an effeminate youth, was charged with vagrancy.

From the evidence of Senior-constable Sawtell and Constable Brown, it appeared that the prisoner was in the habit of frequenting Hyde Park and College-street, painted, powered, and bedecked so as to represent a female.

In this state he perambulated the streets and parks after dark. When arrested, it was found that he was wearing stays. The prisoner was sentenced to three months’ imprisonment with hard labour.

Gaol Photo - "Said to be a Pouftah"

1889, George Harrison

1889, George Harrison


The position of Darlinghurst Gaol is well known, and the prison forms a conspicuous object to persons travelling along the eastern tramline near where Botany-street branches off from Oxford-street. It covers an area of about 4¾ acres, and is situated on about the highest point of a ridge having between it and Oxford-street the Darlinghurst Courthouse, with the large plot of tree-planted land in front.

Darlinghurst gaol and courthouse, in foreground, complex, c. 1930.

"I looked over the rocks. I saw the two prisoners now before the court committing an unnatural crime. The prisoner Weston was in a stooping position with his head down and trousers down, and the prisoner Blackwell was behind him with his trousers down; and both in the act of copulation."

Blackwell and Weston were both sentenced in 1845 to twelve months hard labour in Darlinghurst Gaol.

The Sydney Morning Herald, Mon 8 Mar 1886

Mr George Newbolt, Assistant Superintendent on Cockatoo Island.

Darlinghurst gaol and courthouse, in foreground, complex, c. 1930.

He took me into his wife’s bedroom.
He brought into the room a bottle of Vaseline.

He said “I can easily do it with a little Vaseline.”

I said I didn’t believe him that kind of thing.
I said “What good will it do me?”

Vaseline Advert

1899, Simeon Alexander Moss

1899, Simeon Moss

Charge of Indecent Assault.

Simeon Alexander Moss was charged with having committed an indecent assault on Stanley Lake at Bowral on 20th July, 1899.

‘We are glad to be able this week to present to our readers an illustration of the new court house at Yass, now in course of erection, the ceremony of laying the foundation-stone of which, on this 20th of July last, by the Honourable the Colonial Secretary, in the presence of the Premier, Minister of Works, Attorney-General, &c, was duly recorded in our columns. The design has been prepared by the Colonial Architect, and is on a scale commensurate with the requirements of the district. The style chosen is classic of the Roman Doric order. Advantage has been taken of the site to give effect to the design by its approach, which is by a very broad and imposing flight of steps.’

The April sitting of the Yass Circuit Court opened before his Honor Mr Justice Faucett on Wednesday last. Mr Plunkett acted as Judge’s Associate and Clerk of Arraigns, Mr Mann, prosecuted on behalf of the Crown, while Mr Ould represented the Crown Solicitor. The other legal gentlemen present were Mr Colonna Close, barrister-at-law, and Mr EA Iceton, solicitor. Mr T Colls JP represented the Sheriff.

1885, Henry Smith was found guilty of having committed bestiality and sentenced to three years’ hard labour in Yass gaol.

Australian Town and Country Journal, Sat 31 Aug 1878

The Yass Courier, Fri 17 Apr 1885

IN writing this pamphlet my sole desire is to bring before the public the present injudicious system of treating juvenile delinquents, and those unfortunate children whose only crime is their poverty.

That a lad should be imprisoned simply because he is poor, is both brutal and unwise; but that he should he indiscriminately herded with young criminals is the height of folly and injustice.

That it is so, is undeniable.

On 25 January, 1867 the Colonial Secretary purchased the wooden sailing ship the “Vernon” and at a cost of more than eight and a half thousand pounds it was fitted up as an Industrial School. The ship, moored in Sydney Harbour between the Government Domain and Garden Island was declared a Public Industrial School on 6 May, 1867.

Industrial Schoolship - Vernon

The Sydney Herald, Fri 4 Mar 1842 1


The Circuit Court for the Maitland District will commence its sittings on Monday next, the 7th instant, before Mr Justice Burton. The following is the criminal calendar for trial at the Court:—
    Stephen Waters free by servitude, unnatural offence;
    Robert Evans, born in the colon, and Thomas Gamble, distinct charges of horse stealing;
    Stephen Laurence, bond, assault with intent;
    Edward Priest, free, shooting with intent;
    Thomas Homer, bond, murder;
    James Samuel Watson, embezzlement;
    James Dailey, bond, and Henry Woodward, free, slaughtering sheep with intent;
    George McCrie, bond, Martin Dullard, free, slaughtering sheep with intent;
    Bowen, ticket-of-leave holder, and Edward Bowen, immigrant, killing cattle with intent;
    Arthur Hewratly, James Cox, Richard Cox, and Barney McCudden, all free by servitude, cattle stealing;
    George Glew, receiving stolen property;
    Luke Laycock, a freed man, killing cattle with intent;
    Frying-pan and Wellington, two aborigines, are also charged with a similar offence;
    Richard Dines, and Hugh Bannon, manslaughter;
    Joseph Ralph, bond, highway robbery;
    Joseph Lytliard, free, and Owen Moriarty, free by servitude, are each charged with forgery.

~ ~ ~ ~ ~

Australasian Chronicle, Thu 10 Mar 1842 2


    The assizes at Maitland commenced on Monday last, but there was not a great deal of business done on that day. His Honor Mr Justice Burton, before taking his seat on the bench, went to church, and a sermon was preached by the Rev Mr Rusden. The legal gentlemen present were the Solicitor-General, Mr Purefoy, Mr Cheeke, and Mr Callaghan. His Honor was attended to church by W Hustler, Esq, High Sheriff, who appeared with him in court with all the insignia of office.

    After the jury list had been called over his Honor addressed the jurors, and said that was the second time he had been called upon to preside in that court within twelve months. It must be evident to all present that, from the nature of his office, his mind was fully impressed with the events which had taken place in the community generally during that time. He was aware that that district could not have been past over without experiencing a portion of that distress which had been felt throughout the colony; but he trusted that by the aid of God’s providence, and their own industry, they would be able to surmount the evils with which they had been threatened, or to which they might have been subjected. Since his last visit, a law which had been called for by almost all parties had been passed; it was a law which, while it would secure the creditor, gave protection to the honest debtor. He did not come there to discharge an abstract duty, as a mere lawyer, but as a colonist he observed all that was passing; and he did hope, as he before observed, that with the Divine Providence they would surmount all the difficulties which had of late been increasing so fast upon them. In the mean time he would, as one of his brother judges had already done, exhort all present who might who might be creditors to be lenient towards their debtors, so far as they possibly could; and he would also say to the debtor act justly towards those who are your creditors. As the law at present stood, every creditor was protected, while at the same time no honest debtor, who was disposed to give up what property he had for the benefit of his creditors, need remain in prison twenty-four hours. He congratulated them on the improvement in the morals of the people, as appeared from the calendar; and he also observed that there was a great improvement in the jury list, which in 1835 presented only one-third the number of names that were now returned for the district of Maitland alone. His Honor then alluded to the increased number of clergymen, and the means of religious instruction which had sprung up amongst the people, and made several other remarks favorable to the progress which the district had made.


The Sydney Herald, Thu 10 Mar 1842 3

Tuesday, March 8.
(From our own Reporter.)

    Mr Justice Burton took his seat this morning at 7 o’clock, and a jury was put into the box to try a man named Waters, for a most unnatural offence, of which he was convicted on the clearest evidence, and his Honor passed sentence of Death upon him, intimating that there was not the slightest ground of hope for mercy. Mr Callaghan conducted the case for the Solicitor-General, and Mr Purefoy did all that could be done for the defence. But the case was too clear to admit of a scruple as to the verdict.

    The Court was occupied until within a quarter to ten with the case—adjourned to 11, when his Honor again took his seat, and the jury list was called over.

~ ~ ~ ~ ~

Australasian Chronicle, Sat 12 Mar 1842 4

Tuesday, March 8, 1842.
(Before his Honor Mr Justice Burton.)

    Stephen Waters was indicated for an unnatural offence.

    Mr Callaghan conducted the case for the Solicitor- General, and Mr Purefoy ably defended the prisoner. After a trial of nearly three hours the jury returned a verdict of guilty, and his Honor passed sentence of death upon the prisoner intimating that there was not the slightest ground for any hope of mercy.


The Sydney Gazette and New South Wales Advertiser, Thu 17 Mar 1842 5

(Before His Honor Mr Justice Burton, and a Jury.)

    The Queen’s proclamation against vice and immorality having been read, the Judge proceeded to address the jury and those assembled in the court room.


    The court set this morning at seven o’clock, to try a man named Waters, accused of having committed an unnatural offence. The Jury after listening attentively to the evidence, returned a verdict of guilty, and his Honor after an impressive address, passed the awful sentence of death upon the prisoner, who heard it with firmness, and was removed from the bar apparently not much affected.


NSW Executive Council Minute, 18 Mar 1842 6

Minute No. 8

    Council Chambers Sydney,
    Friday 18th March 1842

    His Excellency the Governor, [Sir George Gibbs]
    His Excellency Major General Sir Maurice Charles O’Connell KCB
    The Right Reverend the Lord Bishop of Australia [Right Reverend William Grant Broughton]
    The Honorable the Colonial Secretary [Edward Deas Thomson]
    The Honorable the Colonial Treasurer [Campbell Drummond Riddle]

    His Excellency the Governor laid before the Council two letters from Mr Justice Burton, reporting on the Cases of Thomas Homer, and Stephen Waters, capitally convicted, before His Honor, at a Circuit Court recently holden at Maitland, and Notes of the evidence respectively 7 taken in their cases, in both of which Sentence of death has been passed.

    His Excellency informed the Council, the Mr Justice Burton not having returned from Maitland, and the Chief Justice being also absent, he had requested the attendance of Mr Justice Stephen.

    His Honor was then introduced, and the Reports and Notes of Evidence read.

    The Council after an attentive and mature consideration of the cases above mentioned, advise as follows, viz.

    Thomas Homer, convicted of the wilful murder of James Stone, and sentenced to suffer death, that the sentence of the Law be allowed to take its course.

    Stephen Waters, convicted of bestiality with a mare, that the sentence of death passed upon him be commuted to transportation for life.

    The Council then adjourned sine die, (at Three o’clock, having met at two.)
[Signed] W[illia]m Macpherson,
Clerk of Councils

1  The Sydney Herald, Fri 4 Mar 1842, p. 2. Emphasis added.

2  Australasian Chronicle, Thu 10 Mar 1842, p. 2.

3  The Sydney Herald, Thu 10 Mar 1842, p. 2.

4  Australasian Chronicle, Sat 12 Mar 1842, p. 3.

5  The Sydney Gazette and New South Wales Advertiser, Thu 17 Mar 1842, p. 4.

6  SRNSW: NRS4232, [4/1521], Executive Council, Minute books, Minute 8, 18 Mar 1842, p. 21, R2437.

7  Mn: “Summary Ext. A. Report of His Honor Mr Justice Burton on the cases of Thomas Homer, and Stephen Waters.” “Append to Minute No. 42/8 A.I. Report of His Honor Mr Justice Burton.”