Depositions for Joseph Antonio Familie Lewles, 11 Jun 1833, Sydney Trial
In the third Year of the Reign of
Our Sovereign Lord William the Fourth,
by the Grace of God, of the United
Kingdom of Great Britain and Ireland,
King Defender of the Faith.
New South Wales,
TO WIT }
Be it remembered, that John Kinchela, Esquire, Doctor of Laws, His Majesty’s Attorney General for the Colony of New South Wales, who prosecutes for His Majesty in this behalf, being present in the Supreme Court of New South Wales, now here, on the fifteenth day of May in the Year of our Lord one thousand eight hundred and Thirty Three at Sydney, in the Colony aforesaid, informs the said Court, that Joseph Antonio Familie Lewles late of Sydney in the Colony of New South Wales, Labourer, on the 28th day of February in the Year of our Lord one thousand eight hundred and thirty three with force and arms, at Sydney in the Colony aforesaid, in and upon one Constantine Hayes then and there feloniously did make an assault and then and there feloniously, wickedly, diabolically and against the order of Nature had a venereal affair with the said Constantine Hayes and then and there carnally knew him the said Constantine Hayes and then and there feloniously, wickedly, diabolically and against the order of Nature, with the said Constantine Hayes
did commit and perpetrate that detestable and abominable crime of Buggery (not to be named amongst Christians) against the form of the statute in such case made and provided and against the Peace of our said Lord the King his Crown and Dignity.
[Signed] John Kinchela, Attorney General.
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[On the reverse of the above 1-2 is the following]
In the Supreme Court
The King against Joseph Antonio Familie Lewles
Witnesses: Constantine Hayes, John Downing, George Bowman
June 11th 1833
Plea Not Guilty
Verdict Not Guilty
[Signed] John Gurner [Chief Clerk, Supreme Court]
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Justice WW Burton's Notebook&
2nd Case [11 June 1833]
Joseph Anthonio Familie Lewles Buggery upon Constantine Hayes –
Plea Not Guilty
I am a prisoner, have been in the Colony about nine months, know the prisoner, have known him 3 or 4 months, got acquainted with him in the Big Barracks – slept in the same room with him – about a month or two – & together for three or four nights –
I remember being up before the Magistrates to give my information, do not know the names of the Magistrates – it was in Sydney – It was on a Thursday something happened to me, as I went before theMagistrates on Saturday –
On Thursday night went to bed about 6 o’clock – a good many new hands in the same room – we sleep in a length all along the sides of the room – do not always sleep in the same place, just as we can get – about 20 boys – about an hundred men – there is a wardsman
in the room all night – & a light burning till about eight o’clock & then the light goes out –
I had slept about a month there before this Thursday night – on that night I slept by the side of the prisoner – & a man whose name I do not know on the other – he was examined before the Magistrates.
I had two blankets, some had bed & some blankets. I took all my clothes off but my shirt: I went to sleep soon after I went to bed – always take off all my clothes except my shirt – the men generally take their clothes off – I awoke by feeling the prisoner’s privates – between my thighs – my back was towards him – it awoke me – I turned round with my face towards him – I did not speak to him – but took my blankets & went away from him – & went to the next berth – & slept next no-body the rest of the night –
I reported it in the morning to the watchman named John Downing: What he put to me was not between my thighs but just behind – out of my body – it never went into my body – the prisoner was awake when I turned round – he did not speak to me, he did not
touch me with his hands – what he put to me was soft – it was dry –
I did not tell the Magistrates that he put his private parts into my body – it was not true, he did not do so –
I did not tell the Magistrates that I felt something come from the prisoner. I did not tell the Magistrates so –
I did not cry out – I did not go to the wardsman. He was asleep, the light was out – I told the watchman in the morning – I told him the prisoner wanted to do some business with me – I did not tell him that he did it – What the prisoner did, did not hurt me at all – it did not make me cry or groan – I spoke to the watchman first– he did not first
say to me “was it you that was complaining at night” I told Cassidy what had happened next morning about 8 o’clock – I told him the prisoner wanted to do it – John Stewart is the wardsman – I am sure I told the Magistrates the same story as I have told today – my examination was taken down & read over to me, I did not understand what was read to me – the ward was dark at the time –
No body put me up to this.
Verdict – Not Guilty
1 SRNSW: NRS880, [SC T35], 33/107, Supreme Court, Papers and depositions, 1833. The other file, CP T155, 55, for this case could not be located at SRNSW.
2 SRNSW: NRS5730, [2/2405], Judiciary, WW Burton, J. Notebooks Criminal Sessions, 1833-38, pp. 144-7. Emphasis added.
3 Sir William Westbrooke Burton born at Daventry, Northamptonshire, England on 31 Jan 1794. He was educated at Daventry Grammar school and entered the navy as midshipman in 1807. He served in various ships, namely, the Conqueror, Barham, Tonnant and Ortando. Burton was called to the English Bar at the Inner Temple in Nov 1824. On 1 Jan 1828 he became a judge of the newly constituted Cape of Good Hope Supreme Court under Chief Justice Sir John Wylde who, of course, had been deputy-judge-advocate in NSW. Burton was appointed to the NSW Supreme Court on 1 Mar 1832 and sworn in on 22 Dec 1832 after arriving from Cape Town in Sydney on the Leda. In 1834 he visited and presided at the Norfolk Island leaders of an insurrection trial which resulted in thirteen executions. Burton was instrumental in the cessation of convicts coming to NSW. Burton was absent in London between 1839-41 and on his return in Mar took a keen interest in the cause of Aboriginals. In 1844 Burton left Sydney to become puisne judge at Madras and returned to Sydney in 1857, with his second wife, where he became a member of the NSW Legislative Council on 11 Aug of that year. He left for London the last time in 1861 where he died on 6 Aug 1888. ADB, 1788-1850, vol. 1, pp. 184-6.