Depositions for Lim Law 6 Apr 1853 Sydney trial 1
1
Having this day attended at the Gaol of Darlinghurst accompanied by a competent chinese interpreter the prisoner “Jimla” was brought before me and after the information had been read and fully explained to him to the charge the prisoner pleaded – not guilty.
The depositions taken in the case were then read and explained to the prisoner and after being duly cautioned he then made the following statement.
“The boy Harkness came into my hut on the day stated, and whilst I was taking off my trousers to be washed, the boy Harkness heard the money (five shillings) that was in the pocket of the trousers rattle. When he asked me if I had got any money, to which I replied that I had five shillings that had been given to me by my Master. The boy then asked me to show it to him, when I handed him half a crown
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which he attempted to leave the hut. To prevent his doing so I shut the door, and on his refusing to return me the half crown, I seized hold of him and took it from him by force, and he then left the hut crying. This was all I did to the boy.”
The above statement made before me at Darlinghurst Gaol Sydney, (through the aid of an interpreter) this 25th day of February 1853.
[Signature illegible] JP.
1
New South Wales
TO WIT. }
The information and complaint of James Harkness (a minor) of Numba taken this first day of February in the year of Our Lord one thousand eight hundred and fifty three, before the undersigned, one of Her Majesty’s Justices of the Peace in and for the said Colony of New South Wales, who saith that Jamalang or Jimla, a native of china and now residing at Numba aforesaid, on Friday the 28th day of January last, at Numba aforesaid did assault him the said James Harkness and then and there had a venereal affair with him and then and there knew the said James Harkness and then and there with the said James Harkness did commit and perpetrate the crime of buggery.
Sworn before me the day and year first abovementioned at the Police Office Shoalhaven.
[Signed] Ken[neth] MacKenzie, JP.
2
New South Wales
TO WIT. }
The examination of James Harkness of Numba taken on oath the 1st day of February in the year of Our Lord one thousand eight hundred and fifty three at the Police Office Shoalhaven in the Colony aforesaid, before the undersigned one of Her Majesty’s Justices of the Peace in and for the said Colony, in the presence and hearing of Jimla or Jimalang (a native of china) who is charged before me this day, for that he the said Jimla or Jimalang on the 28th day of February last, at Numba aforesaid did with him the said James Harkness commit and perpetrate the crime of buggery.
This deponent, the said James Harkness on his oath saith as follows:– “As I was coming from Mr Lamond’s hut Jimla the prisoner called me into his hut and put his hand into his pocket and pulled five shillings out and put it into my hand and then he pulled me into his hut bedroom, and showed me more money – then he put it into his pocket again, and then began to unbutton my clothes, and I kept buttoning them up and it came to a struggle, and I cried out – then he pushed me down on the bed, and held
3
down on my face with his hands on my shoulders and began his indecency with me. After doing his dirty action with me I gave him his money which I had still in my hand, and he wanted to keep me in and offered the money back to me not to tell.”
By the Bench: I felt him in my body about that much (here the witness indicated about 3 inches) – on leaving the hut I met Smith and told what had happened and I then went and told my mother.
[Signed] James R Harkness.
Sworn before me this first day of February 1853.
[Signed] Ken McKenzie, JP.
Examination William Smith
William Smith being duly sworn saith “On Friday last as I was standing at my hut door I saw James Harkness come out of Jimla’s hut. Harkness beckoned to me and told me he wanted to speak to me. He then told me that Jimla, the prisoner now before the Bench, had been putting his yard into his fundament. I told him to go and tell his parents, for if he did not that I would. The prisoner came out of his hut after the boy Harkness and came to my hut – he spoke 2 or 3 words that I could not understand and then went away.
[Signed] William Smith.
Sworn before me this first day of February 1853.
[Signed] Ken McKenzie, JP.
4
Examination of John Harkness.
John Harkness being duly sworn saith:– I am the father of the victim of the prisoner’s brutality. My boy will be 14 years of age on the 12th of May next. He has been in the practice of going to Church since he was five years of age. He can both read and write pretty well and I believe that he has a true conception of the obligation of an oath. On Friday afternoon last I called him to turn the grindstone for me. He could not do it as usual and I felt inclined to be angry with him. He then began to cry and appeared ill and exhausted. His mother joined us then and said that the boy was not well and ordered him to bed and turn the grindstone herself. She afterwards, that is about bed time, and when we were alone told me what had happened. I examined the boy and observed signs of violence with one scratch very plain about his fundament. He appeared so ill that I thought it most prudent to give him some medicine which operated next day and he got better.
[Signed] John Harkness.
Sworn before me this first day of February 1853.
[Signed] Ken McKenzie, JP.
5
Being impossible to understand what the prisoner says in his defence none is entered for him. He, however, appears to understand the nature of the offence he is charged with, being very vehement when a bed or money is pointed to.
He the said Jimla or Jamalang is committed to take his trial at the next Sessions of Goal Delivery at the Supreme Court to be held Monday April 4th.
[Signed] Ken McKenzie, JP.
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(O. 1.)
Recognizance to give Evidence.
New South Wales
TO WIT. }
Be it remembered, that on the first day of February, in the year of Our Lord one thousand eight hundred and fifty three William Smith of Numba in the district of Shoalhaven in the Colony of New South Wales aforesaid, Labourer, personally came before me one of Her Majesty’s Justices of the Peace for the said Colony, and acknowledged himself to owe to Our Sovereign Lady the Queen the sum of
Twenty Pounds,
of good and lawful money of Great Britain, to be made and levied of his Goods and Chattels, Lands and Tenements, to the use of our said Lady the Queen, her Heirs and Successors, if he the said William Smith shall fail in the condition indorsed.
Taken and acknowledged the day and year first above mentioned, at Shoalhaven in the said Colony, before me.
[Signed] Ken McKenzie, JP.
The condition of the within written Recognizance is such, that whereas one Jimla alias Jamalang was this day charged before Ken McKenzie the Justice of the Peace within mentioned, for that he the said Jimla alias Jamalang with James Harkness a minor, did feloniously commit and perpetrate the crime buggery. If therefore he the said William Smith shall appear at the Court of General Gaol Delivery to be holden at Sydney in and for the Colony of New South Wales, on Monday the fourth day of April and there give such evidence as he knoweth upon an information to be then and there preferred against the said Jimla alias Jamalang for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Jimla alias Jamalang then the said Recognizance to be void, or else to stand in full force and virtue.
~ ~ ~ ~ ~
(O. 1.)
Recognizance to give Evidence.
New South Wales
TO WIT. }
Be it remembered, that on the first day of February, in the year of Our Lord one thousand eight hundred and fifty three John Harkness of Numba, in the district of Shoalhaven, in the Colony of New South Wales aforesaid, Carpenter, personally came before me one of Her Majesty’s Justices of the Peace for the said Colony, and acknowledged himself to owe to Our Sovereign Lady the Queen the sum of
Forty Pounds
of good and lawful money of Great Britain, to be made and levied of his Goods and Chattels, Lands and Tenements, to the use of our said Lady the Queen, her Heirs and Successors, if he the said John Harkness shall fail in the condition indorsed.
Taken and acknowledged the day and year first above mentioned, at Shoalhaven in the said Colony, before me.
[Signed] Ken McKenzie, JP.
The condition of the within written Recognizance is such, that whereas one Jimla alias Jamalang was this day charged before Ken McKenzie the Justice of the Peace within mentioned, for that he the said Jimla alias Jamalang, with James Harkness a minor did feloniously commit and perpetrate the crime of buggery. If therefore he the said John Harkness together with James Harkness his son, and a minor, shall appear at the Court of General Gaol Delivery to be holden at Sydney in and for the Colony of New South Wales, on Monday the fourth day of April and there give such evidence as they know upon an information to be then and there preferred against the said Jimla alias Jamalang for the offence aforesaid, to the Jurors who shall pass upon the trial for the said Jimla alias Jamalang then the said Recognizance to be void, or else to stand in full force and virtue.
~ ~ ~ ~ ~
Kenneth McKenzie JP
Police Office Shoalhaven
February 1, 1853
John H Plunkett, Attorney General, Sydney
Sir
I have the honour to forward to your office the accompanying depositions and Recognizance taken in the case of a chinaman charged with sodomy. Finding it impossible either to procure and interpreter, or to understand one word of what the prisoner said – no defence or plea is recorded for him.
I have the honour to be Sir,
Your most obedient Servant.
[Signed] Kenneth McKenzie, JP.
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Alexander Berry
Sydney 12th February 1853
Beverley Esq
Dear Sir
Lim Law a chinese man in my employment at Shoalhaven has been committed to take his trial for a nameless offence, but I have him informed that the people at Shoalhaven do not believe that there is any foundation for the charge against this man, who rendered himself very useful in reaping the harvest. I shall therefore feel obliged if you will be kind enough to allow my clerk, William Mathewes to see the depositions, and to take notes of the same.
I am, dear Sir,
Yours truly,
[Signed] Alex Berry.
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James Waddington
Numba 24th February 1853
Mr WG Mathews, Sydney
Dear Sir
I received your letter with regard to the chinese man. I can say but little on the matter as I was not at home the time they say they [sic] offence was committed nor when the trial; I was at Gerringong. The boy is very sharp and intelligent. The man that you mentioned being in the next hut was a boy of mine – about eight years old. He says that Lim Law went from the barn to the hut to light his pipe and that when sitting smoking in the hut the boy took the pipe out of Lim Law’s mouth then jumped on his back or neck. Lim Law told the boy to go away home. My boy knows no more as he then went into the next hut with another boy to have a swing on a rope that was there
2
but he says that he heard no noise. Mrs Lamond says that she heard no noise and thinks if the boy had made any that she would have heard him. The distance from Mrs Lamond’s hut door to the chinese man’s is twenty yards. With regard to the character of the boy, some of the neighbours say that he is very impertinent and forward, but I cannot say anything about him as he is always very quiet before me. I may give you some of the people’s opinion on the matter that knows more of it than me. They seem to think that the chinese man committed the offence but that the boy made no resistance whatever. Since the chinese man was committed for trial the name of a chinese man makes a great many of the small settlers shudder and looks at them with the greatest (terror ?) as if all the men were alike.
3
Lim Law behaved himself very well under my charge as far as I know Mr Berry tells me that there is 9 more to come this time by the Porpoise. They might do very well with a few more good hands but if there is no more Britons coming down I am afraid we will not be able to grow half what will be used on the place. I mean bread stuff. They can make no hand of driving bullocks & the bullocks have not learned German yet & I am afraid never will, especially the old ones.
I am, Sir,
your obd. Servant
[Signed] Jas Waddington.
Memo – The chinaman’s hut was a double one with a slight partition – open above – the chinaman was in one part with the boy Harkness – and the boy Waddington in another the other part.
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[On the depositions’ cover sheet is the following]
1853
Supreme Court Sittings
Shoalhaven No. 1
Regina
v.
Jimla alias Jamalang
(a chinaman)
Depositions
~ ~ ~ ~ ~
Sodomy
28 January 1853
at
Numbaa
James R Harkness
~ ~ ~ ~ ~
[On another deposition cover is the following]
13645
Regina
v.
Jimla alias Jamalang
Shoalhaven
~ ~ ~ ~ ~
It appears there was no interpreter at the Bench, these Depositions should be explained to the Prisoner by a competent interpreter.
[Initialled] JHP [John H Plunkett, AG]
The case must be tried
[Initialled] JHP
~ ~ ~ ~ ~
Justice A Stephen’s notebook 2
66
[Wednesday 6 April 1853]
Simlah or Samalang 3 – a chinese. Unnatural Crime with one James Randolph 4 Harkness –
chinese interpreter sworn.
Holroyd defends for prisoner.
James Randle Harkness. (I order Information to be altered accordingly 5 ) Aged 14 (His father examined by me. He says that the boy is only 13: but he only accentuated this yesterday.) 6 Prisoner "Jemalong" 7 lived at Shoalhaven. I live with my parents on the same property: Mr Berry’s. There are 4 chinese who live together in a hut. One day prisoner called me
67
… beckoned me to his hut about 4 in the afternoon. He can’t speak English. 8 I went in & he shut the door:– put a stool against it. He put 5/- out of his hand and put it in mine & pulled me to his bedroom. I held the money out to him. He did not take it. He showed me 3 or 4 shillings more. I did not take any and he put them back in his pocket. Then he began unbuttoning my trowsers and I kept buttoning them up. Then it came to a struggle and he threw me down on his bed and held me by the shoulders and he began to do his dirty action. It was in my fundament. 9 He put something … his private parts … his person – into it. I sang out and then
68
he held me down & I could not cry out. There was nobody in next hut. Smith lives 3 huts off. Prisoner kept me in his hut good while: ¼ hour. I went out and saw Smith and told him what the prisoner had done. Prisoner followed me out. I don’t know what for. I told my mother in about an hour.
Cross-examined. I know Mrs Lamont: the blacksmith’s wife. Saw her before I entered prisoner’s hut. She lives next but one to prisoner’s. Saw her inside her hut just before. Saw Patrick Ryder ½ hour before: & he was going away. Prisoner’s is slab hut with bark roof. Forget if there was a window in the bedroom. Cried loud enough for Mrs Lamont to
69
hear. So was Johnny Waddington. Had seen him just before swinging on a rope. I was buttoning my trowsers as I was coming out from prisoner’s. They were not quite buttoned up. Did not see Mrs Lamont. Smith was farther off than her hut. Never saw her at all after I came out. I was going home & saw Smith. Met him coming to his hut. Had not passed Lamont’s – Any body could have pushed the door open. Prisoner held his left hand on my shoulder. No one in the hut but prisoner and me. My father told me the word “fundament”. Nobody told me to say “his person” – I only cried out once. 10 Prisoner would not let me get out. One front room & 2 bedrooms. No door
70
between them. I gave the 5/- back to prisoner as I was coming out. 11 I had now and then played and joked with the prisoner – Never asked him to show me money or asked for money. I had seen some of the 4 men about the place that day. They were not at work near. I did not think of running in to Lamont’s. If Patrick Ryder had been at Mrs Lamont’s door talking to a female he could have heard me crying out. But my face was in the blankets of the bed. Saw no light. My body was straight out on the bed and my legs on the ground – I kicked out. Could not kick him away. My feet were bare.
William Smith. I live next hut only one to prisoner’s; 20 yards or so off. On 28 January – Friday – I saw the boy
71
coming out from prisoner’s. He came directly to me and told me what he had done to him. I was just coming from my work between 3 and 4. Prisoner came out after the boy (and ?) to me and said something which I did not understand and went away again. I know prisoner’s hut. Only 3 rooms in it. One of the bedrooms has a window with shutter to it. The other has glass. 12
Cross-examined. Did not notice the boy’s trowsers or his doing any thing with them. My hut was empty. I went again away to my work.
John Harkness. On 28 January I examined the lad’s person. A medical man was in company. Observed 2 marks like scratches of a pin on the bottom of his back bone – near the hip. (post 72) 13 Been 19
72
years in the Colony. Am millwright and engineer. Make wheels –
Cross-examined. Never mentioned more than one scratch to the Magistrate. The examination was not till Tuesday following. Of the boy’s person was on the Saturday. The mark at the bottom of the back bone was not of a scratch; but as of a nail – about as big as ½ a pea.
Holroyd. Contradictions. Improbability.
Isabella Lamont. Live 20 yards from prisoner’s. 14 On Friday 28th did not see the boy. I was at home all the afternoon. Heard no noise from prisoner’s hut: screams or anything. Saw Ryder at my hut that afternoon. He was waiting for
73
a young woman. I am not hard of hearing. I was either working or washing up dishes.
Cross-examined. Don’t attend to every noise I hear in their hut. I saw Smith come home. Think that I might have heard noise if any.
Patrick Ryder. Don’t know prisoner – Was at Mrs Lamont’s at 4 or ½ past 4 on the Friday afternoon – I had no watch. Did not see the boy Harkness. I was talking outside to Mrs Lamont. Heard no noise from prisoner’s hut. I was there perhaps ¾ hour.
Cross-examined. Don’t believe that it was so late as 5.
Guilty. Death Recorded – Recommendation 7 years hard labor Roads or Public Works.
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Empire, Thu 7 Apr 1853 15
LAW INTELLIGENCE.
————
CENTRAL CRIMINAL COURT.
WEDNESDAY, APRIL 6, 1853.
(Before His Honor the Chief Justice.)
…
UNNATURAL CRIME.
A chinaman, named Simla, otherwise called Samalang, was placed at the bar, charged with having, on the 28th January, committed an unnatural crime on the person of James Randel Harkness, a youth of 13 years of age.
The prisoner, who was a man of middle stature and about 28 years old, and who was perfectly ignorant of the English language, was defended by Mr Holroyd.
An interpreter being sworn, the case was proceeded with, but as it contains evidence of a disgusting nature, it is wholly unfit for publication.
Mr Holroyd addressed the jury at some length, and after the examination of several witnesses whose evidence, except that of Patrick Ryder, and of Mrs Lemont who, though near the spot where the crime took place, did not hear the cries of the youth, went to render highly probable the committal of the offence.
The prisoner was found guilty.
After a very careful summing up of the learned Judge, the prisoner was then sentenced to death—but his Honor, taking into consideration the circumstance of his being a foreigner, and of his utter unacquaintance with the laws of this country, recommended his being sent for seven years to Cockatoo Island.
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The Sydney Morning Herald, Thu 7 Apr 1853 16
LAW INTELLIGENCE.
————
CENTRAL CRIMINAL COURT.
Wednesday. [6 April 1853]
BEFORE the CHIEF JUSTICE.
…
SODOMY.
Sim Lac, otherwise Sam Larg, [sic] a Chinaman, was indicted for having, on the 28th January last, committed an unnatural offence upon the person of James Randle Harkness, a boy of twelve years of age. In the information the second name was given as Randolph, but upon the direction of his Honor the information was amended.
The prisoner was defended by Mr Holroyd, and another Chinaman was sworn in as interpreter.
The ATTORNEY-GENERAL in opening the case, said that it was incumbent upon the jury to decide in this case without allowing any feelings of natural disgust or horror at the nature of the crime to interfere with the discharge of their duty. A general impression, he believed, prevailed that the class to which the prisoner belonged were addicted to unnatural practices, but this must not influence the Jury, more especially as persons of their own religion and nation had been more than once placed at the bar charged with similar offences. The prisoner having come to this colony was amenable to the laws as well as any of her Majesty’s subjects.
James Randle Harkness, an intelligent looking boy, having been placed in the witness-box, was examined by the learned Judge as to his religious belief, and made very straightforward and satisfactory answers. He was then sworn and deposed to the facts of the case. His evidence is, of course, unfit for publication. The offence was committed at one of Mr Alexander Berry’s stations near Shoalhaven. The prisoner was a servant of Mr Berry.
Mr Holroyd closely cross-examined the witness, as to the circumstances sworn to, but without shaking his testimony in any material degree.
William Smith, who lived in a hut near the prisoner’s deposed that he saw the boy Harkness come out of the prisoner’s hut on the afternoon of the 28th January; when he told witness what had occurred.
John Harkness, father of the boy, gave evidence of having examined his son, with a Dr Sheppard, on the afternoon of the 28th January, and found marks of violence on his person.
Mr Holroyd addressed the Jury for the defence, and called a Mrs Lamont, who lived in one of the huts adjoining the prisoner’s, who deposed that she heard no noise, nor did she see the boy Harkness on the 28th of January.
Another witness, Patrick Ryder, was called, but his evidence was immaterial; and a little boy under eight years of age, was also placed in the box, but was evidently too young to be admitted as a witness.
The depositions were explained to the prisoner by the sworn interpreter.
The learned Judge very carefully charged the Jury, pointing out the law on the subject, and summing up the evidence. The whole case rested upon the testimony of the lad Harkness.
The Jury retired to consider the verdict; but returned shortly afterwards with a verdict of guilty.
HIS HONOR said he could not reconcile it with his conscience to sentence the prisoner to death under the circumstances. He had only recently arrived in this colony, and probably knew not the heinous nature of the offence of which he had been convicted. Had he been here for several years, he (the learned judge) should have felt far otherwise. He should therefore direct sentence of death to be recorded, and would recommend that the prisoner be sent to Cockatoo Island for seven years.
1 SRNSW: NRS880, [9/6374], Supreme Court, Papers and depositions, Sydney, 1853, No. 1. Emphasis added.
2 SRNSW: NRS7696, [2/7022], Judiciary, A Stephen, CJ. Notebooks Criminal, 1840-71, pp. 66-73. Emphasis added.
3 Lim Law (aka Jimla; Jamalang) in transcript of depositions.
4 aka Randle.
5 ie. to the alternative spelling of middle name.
6 Mn: It was a Friday morning Father told me. It was 28 January
7 Yet another spelling.
8 Mn: Never heard him speak English
9 Mn: my private parts ... in my bottom
10 Mn: He had my face down on the bed
11 Mn: He wanted me to take it again
12 In the margin on this page, the following notes: “Boy’s Plan: º Smith’s º Chinese º Lamont”, possibly referring to other documents – perhaps plans of the scene. None evident here.
13 Possibly refers to Holroyd’s comment on following page.
14 Mn: Wife of blacksmith
15 Empire, Thu 7 Apr 1853, p. 2.
16 The Sydney Morning Herald, Thu 7 Apr 1853, p. 2. Emphasis added.