Depositions for James Brown 10 May 1841 Sydney trial ¹

1

Parramatta Police Office
Co. of Cumberland        }    Parramatta 21st January 1841

New South Wales   
to wit                }

Present Sydney Cotton PM

James Brown
per Captain Cook 1830
Life   George Robinson   per Barossa 1840   alld. (allocated ?) to Parramatta Pennant Hills   Stockade in irons	Charged with Sodomy

"Sodomy"

     1.    Alexander Fraser per Susan – Sentence 7 years in Irons, Parramatta Pennant Hills Stockade on oath states on Thursday last, between 12 and one o’clock

2

the prisoner Brown came from Parramatta to Pennant Hills Stockade. On Friday night the prisoner Brown slept with the prisoner Robinson. About 20 men sleep in the same Box (?). I slept in the Box above theirs; between one and two o’clock on Friday night I heard Robinson screaming. I came out of my berth and saw the prisoner Brown on top of Robinson. In the morning I told Robinson that if he again slept with the prisoner Brown I would report him to the Serjeant in charge of the Stockade. On Saturday night Robinson again

3

slept with Brown. On Sunday morning, I told him there was a bad game going on and that if he slept with Brown again I would report him. On Sunday morning between three and four o’clock at dawn of Day there was light sufficient for me to distinguish objects. I heard a noise, there was an opening in the boards which separate the prisoners Berth from mine, of about four inches, which I looking through, I got up, and saw the

4

prisoner Brown having connexion with Robinson. Brown was on top of Robinson. Robinson was lying on His Belly, his legs open and Brown on top of him, they were naked – I positively swear that Brown had connexion with Robinson – On Monday (? day) morning I spoke to Robinson in the presence of Brown, about the impropriety of their conduct – The prisoner Brown immediately challenged me to fight him. I never had a quarrel with either of the prisoners.
[Signed] Alexander (his X mark) Fraser.

Sworn before me this 21st January 1841.
[Signed] Sydney Cotton – PM.

5

    2.    John Howarth per Bengal, Merchant, Sentence 7 years in Irons at Pennant Hills Stockade on oath States, I know the prisoners at the Bar – they are both in Irons at Pennant Hills Stockade.     On Friday last between 12 and 1 o’clock, I went into the prisoner’s Box; in a few minutes after the prisoner Brown came into the Box and in a short time after the prisoner Robinson came. The prisoner Brown got another prisoner of the Crown belonging to the Gang named Deegan to write a letter for him. Deegan went out, and the prisoner Brown and Robinson were lying together, they were

6

talking, Brown threw his left hand upon Robinson’s cheek & from his cheek he put his hand into his bosom, he then put his knee over Robinson’s knee, Robinson went out. The prisoner Brown got up and said to me it is all right, he then went out to his work – On Friday night just after the prisoners were locked up, Robinson went to a prisoner of the Crown named Matthews, and said to him take your blanket and change places with me, (Matthews and Brown slept together). Matthews said to him I don’t care a (?), where I sleep and changed places with Robinson. Robinson and Brown spread one blanket (under ?) them

7

and covered themselves with the other, after we all had laid down – it was quite dark and I could not see anything but I heard whispering in the prisoners Box and then Irons rattling – about Day break in the morning, I rose to make water, and I saw the prisoners lying together; the Blanket had fallen off them, they were lying naked, they were lying together as close as they could be, they were lying on their right sides

8

and one had his back turned to the other’s Belly – In the morning after I heard the last witness Fraser say on the following (?) that if they did not give up such games he would report them to the Serjeant in charge of the Stockade – on Saturday night Brown and Robinson were in the same Berth – Fraser sleeps in the Berth over them; He told Robinson to go and sleep in his own Berth and not to sleep with Brown – Robinson left

9

the Berth but in the morning I saw Robinson again in the Berth with Brown – I have no ill will towards either of the prisoners, nor have I ever had a Dispute with either of them –
[Signed] John Howarth.

Sworn before me this 21 Day January 1841.
[Signed] Sydney Cotton  PM.

    3.    Hezekiah Walls Serjt. 28 Reg. on oath States on the 18th Instant Alexander Fraser, a prisoner in Irons at Pennant Hills Stockade, about 7 o’clock in the (morning ?) reported to me that the prisoners at the

10

Bar had connexion one with the other – I brought them out of the Box and questioned them, and put them into separate Boxes, by themselves – on the following morning the last witness John Howarth came and told me that he saw the prisoners at work, meaning unnatural connexion.
Sworn before me this 21st Day January 1841.
[Signed] Sydney Cotton PM.

Committed for trial.
[Signed] Sydney Cotton PM.

~ ~ ~ ~ ~

[On the reverse of the above (1-10) is the following]

1841
21st January
Parramatta “(7 ?)”
Regina
v.
James Brown &
George Robinson
Depositions
R/d (?)

~ ~ ~ ~ ~

No. 41/281 

   Police Magistrate
    Parramatta
    22 January 1841

John H Plunkett, Attorney General, Sydney
Sir,
    I have the honor to forward you herewith the Depositions taken in the Case of the Prisoners named in the margin . Committed to take their Trial for Sodomy –
    I have the honor to be Sir Your Obedient Servant
[Signed] Sydney Cotton  PM.

~ ~ ~ ~ ~

Memo   

Attorney General’s Office
    27 January 1941

James Brown   per Captain Cook  1830 Life   George Robinson  per Barossa  1840	Mr [Thomas] Ryan [Chief Clerk]  Will have the goodness to furnish to this office, for the information of the Attorney General, the Colonial History of the Prisoners in the margin
	[Signed] H[enry] C[lements] Beverly

 

James Brown's Criminal History Since Apr 1832

James Brown arrived per Ship Captain Cook, Apr 1832
Conviction date	Punishment	Crime
8 May 1833	50 lashes	Absconding (Bathurst B)
4 Jun 1833	12 mths Irons	do. 2nd time (do.)
11 Nov 1833	25 lashes	Making away with the Prisoners Sugar
11 Feb 1834	12 mths Irons	Gaol breaking
16 Nov 1835	50 lashes	Refusing to work
22 Nov 1836	12 mths Irons	Absconding (Merton B)
3 May 1839	50 lashes	Absconding (Maitland B)
4 May 1840	50 lashes	Absent without leave (Berrima B)
23 Jul 1840	12 mths Iron Gang	Housebreaking
7 Sep 1840	25 lashes	Disobedience of orders
[Signed] Thomas Ryan, Chief Clerk, [Principal Superintendent of Convicts Office]

~ ~ ~ ~ ~

     George Robinson alias Elijah Preston Osborne tried at York (North Riding QS) 31 Dec. 1838. Sentenced 15 Years – arrived in the Colony 8th Decr. 1839 –

13 July 1840 – Insolence. 50 lashes. HPB [Hyde Park Barracks] –
[Signed] Thomas Ryan, Chief Clerk, [Principal Superintendent of Convicts Office]

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

Regina
vs.
James Brown B
George Robinson B
Parramatta
See the Colonial History of these men within.
[Initialled] J.H.B.

~ ~ ~ ~ ~

Get me from Hyde Park Barracks a report of the Colonial history of these Prisoners
[Initialled] J.H.B.

~ ~ ~ ~ ~

Justice A Stephen’s notebook ^{3 4}

23

James Brown. Prisoner. (Crimes ?) not (?).
On 15th January ’41 at Pennant Hills with and upon one George Robinson.

    Alexander Fraser. Parramatta Gang 7 years. Been here 6 years for bolting – Prisoner belonged same gang. I slept in Barracks Pennant Hills. Open berths. 6 top and 6 bottom. 25 slept in same room. In January the prisoner and boy named Robinson; James I believe. no – George – Thursday night came to No 5 box. Friday night I heard Robinson screeching out. ⁵ I slept upper box and looked over and saw Brown on top of Robinson. Sunday night they slept in lower berth. On the Monday morning 5 am. I saw prisoner and Robinson both under one blanket together. I did not see them do any thing

24

then: On the Friday night when I saw prisoner on top of Robinson he was having connexion with Robinson. Robinson was quite naked. I saw prisoner having connexion with Robinson. He was working in his private parts on the boy. I said this is very fine action you are doing. Prisoner was naked. He was working in the hinder parts the back-side of Robinson. They left off quickly then. On Monday evening I reported it to the Serjeant. Prisoner wanted to fight me. He said I was not to interfere with his business. – Plenty others heard but all [of] them ganged against me. They don’t want to speak the truth.

    Cross-examined by Prisoner. Never knew you till you came to Pennant Hills, on Thursday. It was January but don’t know day of the month. I am a Christian, a Protestant. Not a Catholic. Robinson did not sleep with you the first night. I slept in

25

box 4, top berth, at far end. Jack Brown slept next me. It was about 6 o’clock. (“I thought he meant what time I reported it to the Guard”) I see you (?) (?) (?) (?) Robinson. Robinson been in the Gang 4 or 5 months. He had been in Parramatta gang before that. Men would shift from box to box. Robinson shifted from 5 to 4 before ever you came. I never asked him to come. He and I never had words together and never fought. I never got him to eat or drink. On the Friday night it was just the dawn of day. I could see [a] good way. I did not report this till the Monday. The reason was that you meant to shift into different box. On the Saturday morning I told you that you and Robinson must separate yourself from the box or I would report it. I never heard you have any discourse with Robinson. I did report the occurrence in the box; but not one of the men would speak about the affair. Old man named Sheen

26

slept next [to] you. I could see between you and Robinson. I looked over and saw you on top of him. You did not move immediately just then but when I spoke to the men in the box. Your head was near the door the feet to end of box. I reported it on Monday. Some years ago I was in irons at (?). Don’t recollect any occurrence there. I know Colin Campbell. He is not long from Pennant Hills Gang. He has been in irons lately. –

    (To me ?) I mentioned the occurrence on Saturday to all the men in the box. They said that they did not wish their names called. They are all coming up to swear that no such thing ever happened in the box. – They will swear that I never told (you ?). They come to take a false oath. – (Describes position of beds and head and feet and windows.) Prisoner

27

was next edge of the berth. Light could be thrown down by a passage or space between the beds. - When I spoke prisoner was very quiet. He did not move again. He had not finished. I came from December for receiving goods. Been (punished ?) here for bolting twice and 50 lashes for taking a knife.

    John Hayward. George Robinson was in same gang with me. Prisoner came about 14 January. He slept 1st night with (Henry ? HG ?) Hall. Did not sleep with Robinson but in same box with him. On the Friday night prisoner and Robinson lay together. The same night before they went to bed George Robinson said to Matthews will you change and let me [sleep with Brown?] change places with you. Matthews had slept where Robinson did that night. Brown and Robinson spread one blanket over and one under themselves. We often do so;

28

all of us. Heard good deal of whispering that night thereabouts. And was more rattling of chains there than any where else in the box. On the Saturday morning saw the two both on the right side; blanket thrown off them. One night (whether Saturday or Sunday I can’t say) Frazer told prisoner that “it must not go forward” – “that they must not sleep together any more.” – On Friday night prisoner and Robinson had tea and bread together. Can’t say if they touched each other. Observed nothing particular between them.

    Cross-examined. 14 January was the 1st time I ever saw you. Can’t say that I saw you in Parramatta Gang. I slept within 2 men of you and the same tier. All the night I heard no screeching nor any other unusual noise. There was none that I know of. Robinson was

29

in No. 4 and came to No. 5 box – The room holds 24 men.

    (To me ?) Between 4 and 5 am a (person ?) could see what was going on in (?) –

    [Alexander] Fraser recalled by me. On the Sunday morning I saw prisoner and Robinson lying together. But I saw nothing particular in the morning nor the night. When prisoner had connexion with Robinson was Friday between 4 and 5 o’clock. –

    Hezekiah Walls. Serjeant in 28th now got my discharge. Case was reported to me on Monday or Tuesday by Fraser. Next morning Hayward reported the affair to me. Fraser told me that a night or two previous prisoner had connexion with another man and that he had been carrying it on every night for 3 nights before he reported it.

30

    (On referring to Fraser’s Deposition at (P.O. ?) I found that he swore then that the occurrence was on the “Sunday” and that what he saw on “Friday” was nothing. He only heard Robinson “screeching”. That was on Friday between 1 & 2) ⁶

    Prisoner says It is (made ?) for spite.

    Thomas Thompson. Pennant Hills Gang. On a Monday in January prisoner and Robinson were messing together and Fraser had some words with prisoner about it but what in particular I did not hear. Recollect Robinson leaving No. 5 and coming in with Fraser to mess with No. 4. On the Friday night I heard no unusual noise; no screeching. Nor on Sunday. Heard of no such thing.

31

    Cross-examined by Solicitor General I believe that I slept on Friday. Another (morning ?) I heard something. I did hear Fraser say on Saturday that if prisoner and Robinson did not separate, he would “report them”to the Serjeant (what for I could not say) –

    James (Burns ?). Same gang. Recollect Robinson and Fraser several times falling out. No blows that I know of. They once messed together. Never heard Fraser ask Robinson to go to sleep with him. Never heard Fraser threaten about reporting you. Heard nothing unusual on Friday or on Saturday: or other days whilst prisoner there. Subpoenas came for some more of us but the men were gone.

    John Bush. On Friday, Saturday, and Sunday Fraser upbraided Robinson for not sleeping in the passage; and also prisoner; and said that if he did not return there, he would report you

32

to the Serjeant. Have seen Fraser go and speak to Robinson 20 times and sit and (be ? lie ?) alongside of him. Heard nothing unusual either Friday night or Saturday or Sunday. Robinson used to be messmate of prisoner for 2 months. I was awake part of Friday night.

    Charles Bird. I heard no unusual noise during any night that you were in the gang. Heard no threat to report you for bestiality. Fraser messed with Robinson before you came.

Not Guilty
(Adjourned ½ past 4)

~ ~ ~ ~ ~

The Sydney Herald, Tue 11 May 1841 ⁷

LAW INTELLIGENCE
Supreme Criminal Court.

    Monday, May 10 [1841].– This being the first day of the second Criminal Session for the present year, their Honors Mr Justice Burton and Mr Justice Stephen took their seats in their purple robes.
…
    Mr Justice Stephen then retired, and Mr Justice Burton remained to try the following cases:–
…
    James Brown, one of the Pennant Hills ironed-gang, was indicted for an unnatural assault on one George Robinson, another convict in the same gang, while in bed on the morning of the 15th January last. The principal witness against the prisoner was a man of colour. The prisoner called a number of his ironed-gang confederates, who distinctly swore to his innocence, at the same time their evidence was so shaped as to implicate the accuser.

    The Jury retired for about five minutes, and returned a verdict of not guilty against the prisoner.

    His Honor informed the prisoner that he fully concurred in the verdict of the Jury, and trusted that there was no foundation for the charge against him; but while such was the case he sincerely hoped that it would act as a salutary caution to him, as, had he been found guilty, he should certainly have pronounced the severest sentence which the law prescribed as a punishment for such an offence. The prisoner was then discharged to his gang, and the Court adjourned till to-day.

~ ~ ~ ~ ~

Australasian Chronicle, Tue 18 May 1841 ⁸

SUPREME COURT.
———◦———
CRIMINAL SITTINGS.—
Saturday, May 15.
(Before his Honor Mr Justice Burton.)

    His Honor, having taken his seat on the bench, said that the act passed in the last session of the [NSW] legislative council had not constituted the circuit courts courts of gaol delivery; that both he and the other were of opinion that the supreme court of Sydney could alone exercise that privilege.
…
    George Robinson, a prisoner of the crown, attached to the iron gang at Pennant Hills, and who had been committed along with James Brown, who was also attached to the same gang, for an unnatural offence, was discharged to Hyde Park barracks, as the evidence against him was precisely the same as had been adduced against Brown, who had been tried and acquitted of the charge.

 

---

¹ SRNSW: NRS880, [9/6323], Supreme Court, Papers and depositions, Sydney, 1841. Emphasis added.

²  Mn: James Brown per Captain Cook 1830. Life George Robinson per Barossa 1840 both in Irons attached to Pennant Hills Stockade.

³  SRNSW: NRS7696, [2/7001], Judiciary, A Stephen, CJ. Notebooks Criminal, 1840-71, pp. 23-32. Emphasis added.

⁴  Sir Justice Alfred Stephen born on 20 Aug 1802 at Basseterre, St Christopher (St Kitts), West Indies. He returned to England in 1804 with his mother and lived at Alphington near Exeter. Stephen entered Lincoln’s Inn on 16 May 1818 where he read for the Bar under his cousins Henry Stephen, serjeant-at-law, and Sir James Stephen. On 20 Nov 1823 Stephen was called to the Bar. The Stephens arrived at Hobart Town, Van Diemen’s Land, on 24 Jan 1825 in the Cumberland. Soon after arrival Stephen became attorney general and the same year, 1825, became solicitor general. Stephen accepted a temporary judgeship in Sydney which he reached on 7 May 1839 aboard Medway. Two years later, in 1841, he became a puisne judge. Barely four years later, on 2 Jun 1845, Stephen was appointed chief justice of the NSW Supreme Court. On 12 Jun 1873 Stephen resigned as chief justice, to take effect from 5 Nov that year. He went to Grafton on circuit as acting judge during 1875. Stephen died of senile decay on 15 Oct 1894 in his house 24 College Street, Sydney, and was buried in St Judge’s churchyard, Randwick. ADB, 1851-1890, vol. 6, pp. 180-7.

⁵  Mn: “between 4 and 5 in morning”

⁶  Mn: Fraser says that he never did swear so

⁷  The Sydney Herald, Tue 11 May 1841, p. 2.

⁸  Australasian Chronicle, Tue 18 May 1841, p. 2. Emphasis added.

---