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1834, James Cullen and George Dutton - Unfit For Publication
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Depositions for James Cullen and George Dutton, 10 Nov 1834, Sydney Trial  1 

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In the fifth 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 first Day of November in the Year of Our Lord One Thousand Eight Hundred and Thirty four at Sydney, in the Colony aforesaid, informs the said Court, that James Cullen late of Port Stephens in the Colony aforesaid Labourer –
on the twenty fourth Day of July in the Year of Our Lord One Thousand Eight Hundred and Thirty– four with Force and Arms, at Alderly in the district of Port Stephens in the Colony aforesaid, wickedly, feloniously and against the order of nature with one George Dutton had a venereal affair with one George [aka Thomas] Dutton, and then and there carnally knew him the said George Dutton, and then and there feloniously wickedly, diabolically and against the order of nature with the said George Dutton did commit and perpetrate the detestable and sodomitical crime (among Christians not to be named) called buggery, to the Great displeasure of Almighty God, to the great scandal and disgrace of

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the human kind, against the form of the statute in that case made and provided and against the peace of our Lord the King, his Crown and Dignity — And the said Attorney General further informs the said Court here that the said George Dutton late of Port Stephens aforesaid in the Colony aforesaid labourer and the day and year last aforesaid with force and arms at Alderly aforesaid at the time of committing the felony aforesaid by the said James Cullen in manner and form aforesaid feloniously was consenting with the said James Cullen, that he the said James Cullen the detestable and sodomitical crime called buggery with him the said George Dutton in manner aforesaid should de and commit and perpetrate, against the Statute 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 reverse of the above (1-2) is the following]

27 Buggery
In the Supreme Court
No. 10
The King against
James Cullen
George Dutton         } both Bond
Information
Witnesses: William Constable, Michael Ryan, Joseph Cox, William Whitelaw
November 10th 1834
Pleas Not Guilty;
Verdict Not guilty
[Signature illegible]

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Depositions for James Cullen, 11 Nov 1834, Sydney Trial  2 

1

In the fifth 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 first Day of November in the Year of Our Lord One Thousand Eight Hundred and Thirty four at Sydney, in the Colony aforesaid, informs the said Court, that James Cullen late of Port Stephens in the Colony aforesaid Laborer –
on the twenty fourth Day of July in the Year of Our Lord One Thousand Eight Hundred and Thirty– four with Force and Arms, at Alderly –
in the Colony aforesaid, in and upon one George Dutton in the peace of God and our said Lord the King then and there being did make an assault and [on] him the said George Dutton then and there did beat wound and ill treat with an intent that horrid detestable and abominable Crime (amongst Christians not to be named) called Buggery, with

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the said George Dutton then and there – feloniously wickedly and Devilishly – diabolically and against the order of Nature to do an commit to the great displeasure of Almighty God to the great damage of the said George Dutton and against the peace of our said Lord the King his Crown and Dignity
[Signed] John Kinchela, Attorney General.

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[On reverse of the above (1-2) is the following]

33 Assault with intent to commit Buggery
In the Supreme Court
No. 10 (2)
The King against James Cullen (Bond) 1834, John Morrison
Information
Witnesses: William Constable, Michael Ryan, Joseph Cox, William Whitelaw, Geo Dutton.
JK

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Tuesday Nov 11 1834 Ch Just, CJ
Plea not guilty
Verdict, guilty
Sentence
November 18th 1834 To work on the Roads in Irons for two years.
[Signed] John Gurner

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 Justice J Dowling's Notebook  3 

82

The King v. James Cullen, George Dutton
Buggery 24th July 1834 at Alderly, Port Stephens – Bugger & Buggeree – Cullen Bugger – George Dutton Buggeree.

    William Constable I am a stock keeper – & overseer in Port Stephens. I know prisoner Dutton was under my charge for 14 months. We were stationed at the Branch about 10 miles from Carrington – & 11 from Stroud. Cullen was stationed Alderley – the horse (?) station. The boy no money. The boy had no money – The other man had some allowance though – I have asked

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him. On 23rd July last I went to Alderly (?) in the afternoon to collect mares for muster. The boy Dutton was sent – about 2 on the day as I was ready to start I went into Stephens with the overseer – I sat down on a box, & I saw Cullen & the boy walking down in front of the door. I saw the boy look back or around two or 3 times. He was about a foot space behind Cullen, who had no hat on. I saw them go towards the creek a hundred yards from where I sat. I saw them both look round in a very suspicious way as if going to do something they should not & immediately after that they both popped into the shrubb[ery]. It was about 4 or 5 yards (?) wide. I then got up from my seat &

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went down to the last place I saw them – the edge of the scrub. When I got there I could neither hear or see them at first. I listened a short time & I could hear them talk quite plain. I heard Cullen say something about a pair of trowsers [sic]. The words I could not exactly say. The boy made some reply but I don’t know what. Cullen said “Well you must have them I suppose.” I then began to think there was something wrong & I was determined to go nigher to them. About this time Cullen said (to ?) (the ?) boy what is the matter. The boy said “nothing”. I then heard a crackling as if they were going over the creek.

    I hastened in quick –

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& I came opposite to a large brushy bush about 12 feet thick (?) – as thick as gooseberry bush in leaf. At this time I was obliged to make a good deal of noise to get through so I stopped & listened. I could hear some person breathing very strong. I then peeped through the (bramble ?) as well as I could & I could just (see ?) Cullen on the top of the boy Dutton. The boy under most. I was then astonished at the sight. I made up my mind to go close to them & just as I was going I saw Cullen roll off Dutton of his own accord – no struggle. I at this time rushed in upon them very close. I saw Cullen laying upon his right side with the flap of his breeches

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unbuttoned. Dutton was laying on his left side but rather inclined to be on his back. Dutton’s trousers were unbuttoned right down over his shoes. His shirt was up round about his middle – His (nakedness ?) exposed from his feet to his naval. One of his hands was lying under his head at this time – Cullen had a hold of George Dutton’s penis. I don’t know which (hand ?). I called them brutes 2 or 3 times & I asked them if they were not ashamed of themselves. They lay half a minute & they could neither speak, get up or hide their nakedness. At length they rose up – Cullen said “I am a brute – I am ashamed of myself – but I am drunk.” He appeared to me to be

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perfectly sober. The boy at this time was about to say something – but Cullen laid hold of him by the shoulder – & shoved him away saying “Go away you bugger you have ruined me.”  I was about to make my way out of the scrub. I was followed by the two prisoners. They were buttoning up their breeches as they came out of the scrub. Just as I got outside – Cullen came out & begged I would not say anything about it. I asked him “How he could look at me in the face” or some such answer. I then went up to George Stephen’s (?) little bedroom again. Before I got there Cullen pulled me back again & begged I would not say anything about it. He layed hold of me by the shoulders & I shook him

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off in the presence of his overseer. I then went in to Stephen’s bed room – & I found him in. I then told him what I had seen. There was a constable there & I gave both prisoners in charge. About ½ a minute after they were in charge Dutton came to me & asked me not to say anything about it. I believe I said “How dare you speak to me” or something to that effect.

    There heads were lying close together. I saw the boy under. I saw some motion when I first saw them. – 10 seconds might be more – from the time I first saw him in Dutton till he rolled off he was in (recation ? erection?). Whether Dutton was on back

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or (beley ?) I can’t say – their legs were partly underneath the thicket I had to look through. I could not see whether there was anything – at the time he rolled off I was on the point of rushing on them – I saw Dutton pulling up his clothes – I did not think of abusing them. Cullen was examined afterwards by the assistant surgeon. – Mr Whitelaw.

 

    Cross-examined. [James] Cullen I never spoke to Stephens. (?) – blanket (?) – Never – shirts – I never have him accused of robbery. He had money & clothes I don’t know how he came by. I never heard of his (?). I don’t know how he got the money. All the (?) did not amount to 5/-. I did not see Cullen give him anything.

    Mr [William] Whitelaw I am assigned (servant ?) of the AACo. Assistant surgeon. I was at Alderly

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in latter end of July when the prisoners were brought in. I was called upon by Ryan the constable to examine them. They had been there in custody from ½ & (?). I examined the private parts of Cullen. There was some moisture on the end of the penis. I could not positively say whether it was seminal fluid or not. I could not discern anything on the linen. I examined him again on the day of committal. The same moisture appeared –& then I (saw ?) that the prisoner had endeavoured to make water, that he had no gonorrhoea – I examined the boy’s clothes & I could not see anything on them that led me to suspect anything improper between them. I saw nothing like

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seminal discharge.

    Cross-examined. [James] Cullen He never complained of my (?)

    Cross-examined. If there had been seminal discharge in the fundament it must have oozed out.

    Cross-examined [James] Cullen. (?) of being exposed.

    Innocentanimosity
    (nil likely ? – got up ? get up ?) from George Stephens.
    No witness.

    William Constable
    I never (remember ?) Dutton saying he did not like going out with (?).
    Dutton make many complaints to me of Cullen. I had suspicions before – & that made me watch them.

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    He stated something of the kind.

    When he got up, he wanted to speak to me, but Cullen said go away – don’t go nigh. When I went out of the hut I did not tell George Stephens where I was going & for what purpose, because I did not like to raise such a report unless I knew it was true. – I had heard something of the habits before of the boy, & that made me on the lookout.

    Michael Ryan – for Dutton
    I am a senior constable in Port Stephens. On the way to the watch house – The prisoner he did not know how to get out of it. I told him the best way was

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to tell the truth, but notwithstanding I would not give him any indulgence – He said he went with Cullen to go and (?) for a horse – & in going down by a creek – Cullen laid him down – put his knee on his belly & his hand upon his mouth – & took down his trowsers. [sic]. I asked him if he had entered his body – He said (he ?) had not & no doubt he would unless William Constable came up. (?) I brought Dutton to (Burrell ?) watchhouse. He made the same testament to another constable. & I got him to write it down – & put his mark.

    When I first took him in charge, he told William Constable not to put him in charge but look over it, that

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time – & he said to me “Don’t [let] Ryan have anything to do with it.” I heard Constable say in Dutton’s presence, that he had caught Cullen & Dutton having connexions together. In the kitchen I had them both examined by the doctor – Dutton – said “Dutton have nothing to do it” – Cullen ran at William Constable to strike him which I prevented – he saying “you bloody dog you have a spite against me – about a bridle.” I then took them both in charge. At my return Dutton made this statement I have already mentioned. – He made a similar statement to the Magistrate – The JP

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(?) reports after some kind of work & I was ordered to look after such work. – The JP said he did not believe He (?) did not ask me to (?) charge about Cullen. I told him to tell the truth, but not in the hope of any indulgence.

    Cross-examined. Dutton said William Constable’s evidence was correct. The only statement that he did notcorrect. He told me Cullen had forced him. He said “forcing” – He complained to the JP he had been forced.

    Half an hour before the charge was (brought ?) to me I saw Cullen & Dutton having some words together at the end of the stable – half an hour. Apparently a friendly conversation.

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They were not in custody then. They were very friendly apparently at the same time.

The Jury find
Both Not Guilty
Not Guilty

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The Sydney Gazette and New South Wales Advertiser, Thu 13 Nov 1834

SUPREME CRIMINAL COURT

    (Before the Chief Justice [Dowling] and a Jury of Civil Inhabitants.)

    James Cullen was convicted of an assault on the person of Thomas Dutton, with intent to perpetrate an unnatural offence. The prisoner was remanded.

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The Sydney Gazette and New South Wales Advertiser, Thu 20 Nov 1834  5 

SUPREME CRIMINAL COURT
Tuesday [18 November 1834]

    This morning the three Judges sat for the purpose of passing sentences on the several prisoners, convicted before them during the present sittings of the Court.

    James Cullen, convicted of an assault with intent to commit an unnatural crime, was sentenced to be worked in irons on the public roads of the colony, for two years.

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The Sydney Morning Herald, Thu 20 Nov 1834  6 

    TUESDAY.– [18 November 1834] Their Honors the three Judges having taken their seats, the following prisoners were brought up for sentence:–

    James Cullen convicted of an assault, with an intent to commit an abominable offence. His Honor the Chief Justice observed, that in this case, one, which in the language of the law, was “not to be named amongst christians,” he should refrain addressing any observations in reference thereto; if the revolting character of the offence were not in itself sufficient to deter parties from its commission, all that the Court could observe would be totally unavailing; it only remained then to pass sentence, which was, that the prisoner be worked in irons on the public roads for the period of two years.

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The Australian, Fri 21 Nov 1834  7

LAW INTELLIGENCE
Supreme Court – Criminal Side
SENTENCES

    The three Judges took their seats on the Bench on Tuesday [18 November 1834], and the following prisoners convicted during the last Criminal Sessions were brought up for judgment.

    James Cullen, convicted of an assault with intent to commit an abominable offence; to be worked in irons on the public roads for two years.

 


1  SRNSW: NRS880, [SC T38] Information No. 27, Supreme Court, Papers and depositions, 1834.

2  SRNSW: NRS880, [SC T38] Information No. 33, Supreme Court, Papers and depositions, 1834.

3  SRNSW: NRS5869, [2/3288], Judiciary, J Dowling, CJ. Notebooks Proceedings of the Supreme Court of NSW, 1828-44, p. 82-96. Emphasis added.

4  The Sydney Gazette and New South Wales Advertiser, Thu 13 Nov 1834, p. 3.

5  The Sydney Gazette and New South Wales Advertiser, Thu 20 Nov 1834, p. 2.

6  The Sydney Morning Herald, Thu 20 Nov 1834, p. 3.

7  The Australian, Fri 21 Nov 1834, p. 2.