Court of Criminal Jurisdiction, Precepts No. 127, 18 Apr 1796 ¹

Cumberland 
TO WIT         }

By His Excellence John Hunter Esq
Captain General & Governor in Chief in & over His
Majesty’s Territory of New South Wales & its Dependencies

    Whereas in the Act passed in the Twenty seventh Year of His Present Majesty’s Reign entitled “an Act to enable His Majesty to establish a Court of Criminal Jurisdiction on the Eastern Coast of New South Wales & the adjacent”, it is enacted that the said Criminal Court of Judicature shall consist of the Judge Advocate & Six Officers of His Majesty’s Forces by Sea or Land.

    You are therefore hereby required & directed to attend as Members of the said Court at Ten o’clock on Saturday Morning being the Twenty third day of this Instant Month of April, to try such offenders, as shall be respectively brought before you.

    And for which this shall be your authority.

Given under my Hand & Seal at
Government House, Sydney this Eighteenth
day of April, in the year of Our Lord, One thousand seven hundred & ninety six.

To
The Judge Advocate,

By Command of His Excellence.

[Signed, Governor] J  [John] Hunter

David Collins
Sec:
To the Colony

Pursuant to the above precept the Court set on Saturday 23rd April 1796 and heard various cases including Francis Wilkinson’s.

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Court of Criminal Jurisdiction ^2 & 3 , Minutes of Sydney Proceedings, 23 Apr 1796 

    Francis Wilkinson, Labourer was brought before the Court charged for that he on the sixth Day of March last, at Mulgrave Place in the County of Cumberland in the year of Our Lord one thousand seven hundred & ninety six, with force and arms at the place and County aforesaid, in & upon one Joseph Pearce, Yeoman in the (fear ?) of God, & Our Lord the King, then & there being, did make an Assault on him the said Joseph Pearce then & there did beat wound & ill treat so that his life was greatly despaired of, with an intent that most horrid detestable and sodomitic crime (among Christians not to be named) called Buggery, with the said Joseph Pearce, against the order of nature, then & there feloniously wickedly & devilishly, to commit & do, to the great Displeasure of Almighty God, to the great damage of the said Joseph Pearce, & against the Peace of Our said Lord the King his Crown and Dignity.

    The Prisoner on his arraignment pleaded Not Guilty.

    Joseph Pearce being sworn, deposeth – that he is a Settler on the East Creek at the River Hawkesbury that he is turned of sixty Days Years of Age – that the Prisoner came out in the same ship with him – that on the Day this affair happened, he came & spoke to the Prisoner at the House of one Robinson a Settler – that several persons were present, who asked him to drink – that he played with an old (man ?) at quoits, for half a gallon of (Pale ?) which having lost, he drank more & became fuddled – that he was playing & (drinking ?)

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the whole day – that he left the house an hour before sunset – that he turned out of the path & laid down in an hollow pulling off his shoes & putting them into the bosom of his shirt – he laid down upon his face – that having laid there a considerable time, the prisoner came by & got on top of him – that he was waked by his attempts – that he abused him for such conduct – endeavoured also to extricate himself from him – & called & bellowed but no person came near him – that having (left ?) him the prisoner returned at daylight – that he (charged ?) him with his (?) to which the prisoner did not (?) any answer. That the prisoner had carnal connection with him when he had him on the ground – that he was taken ill in consequence of the prisoner’s treatment of him & kept his bed a fortnight – that he was ashamed of what had happened to him & therefore did not make any complaint to the surgeon or any one else – that altho’ he had drank a great deal, yet having slept in the hollow, for two or three hours, he was nearly sober when the prisoner came to him – that he was dressed the same as when he saw him at Robinson’s house. That he saw & spoke to him & called him by his (name ?) & the prisoner also called him

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by name – that he mentioned what had happened to him, to some people the next day, but did not mention the name, until three days afterwards. That he then told (Rickerby ?) the constable the man’s name – the prisoner– that when this assault was made upon him, he was 3 miles from his own house. That he left the prisoner at Robinson’s when he came away – that the boat which brought him over returned for the prisoner, who came in it, & in struggling with one of the people the people [sic] the prisoner threw him out. He was only told so.

    The Prisoner in his defence said, that the next morning, after this affair happened, the witness spoke of it, but declared he knew not who it was that had assaulted him – & that he offered ten pounds reward to any one who would give him information & that a fortnight elapsed, before his name was mentioned – that hearing the prisoner had spoken of him he sent a constable to him.

    Simon Freebody – a settler (called by the prisoner) being sworn deposed, that the prisoner slept at his house on the night that Pearce was assaulted – that he saw Pearce the next morning & asked him why he had not (gone ?) home – he said he had (been ?) & lost in the weeds – he then told (him ? he?)

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had been buggered – but that he did not know by whom – tho’ he thought he would know his voice – he had lost his hat, which if he could find he should not care anything about it – that Pearce’s house does not lay in the same direction with his own. That Pearce staid the whole of the day at his house – that being at Robinson’s house the preceding day, he saw Pearce & the prisoner there – he asked them both to come to his house, but Pearce refused – the prisoner said he would come. That the last time he saw the witness Pearce, that day, was between (5 & six ?) in the evening – & he appeared neither drunk or sober – that the prisoner came over about(?) o’clock – that he staid there all the (evening ?) & until bedtime, when he went to bed – that the prisoner slept in one of the inner rooms of the house, with one Smith – that the prisoner left his house an hour before daylight – saying he must go down to the (?) – he cannot swear that the prisoner did not go out of his houseduring the night. That Pearce did not show him his trowsers – that in two or three days afterwards, he heard that Pearce had said it was the prisoner. That when the prisoner came to his house in the evening he appearedto be (sober ?).

    Robert Smith, settler at the River (called by the prisoner) being sworn, deposed –

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that he lives at the back of Simon Freebody’s – that he had slept at (Freebody’s ?) for about 3 months – that he remembered the prisoner’s sleeping at Freebody’s with him on the night that Pearce accused him of an assault. That they went to bed about ten at night – there were 9 or 10 others in the house – that he & the prisoner slept in a back room adjoining to the kitchen – that he woke at 12 o’clock & found the prisoner asleep – they had all been drinking that day & that they had all been over at Robinson’s – he saw Pearce & the prisoner there. That he cannot positively swear the prisoner did not quit the house during the night – but if he did he must have passed over 2 or 3 people who were sleeping there. That he saw Pearce at Freebody’s in the morning, but he did not stay there long. That the prisoner came over the preceding evening about dark – that the prisoner sat in the room with him & Freebody & some others until bed time.

    Walter (?) labourer (called by the prisoner) being sworn deposed, that he was at Freebody’s house, the night the prisoner was there – the prisoner was (laying ?) between Smith & another man, (& ?) he laid down at his feet – that

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he never waked during the night, but found the prisoner in the same house in the morning. That the prisoner came from Robinson’s house to Freebody’s some time in the evening – but cannot say when. That Pearce came the next morning, & staid till about 10. That he told every person there, what had happened to him, & said he should give ten guineas in gold to know the man. That he had lost his hat & his handkerchief. That he believes the prisoner laid down at Freebody’s as soon as he came in until bed time – that he does not know whether he went out or not before bed time.

    Not Guilty.

¹   SRNSW: NRS2701, [5/1143], Court of Criminal Jurisdiction, Precepts 1788-1815, R2752.

²  SRNSW: NRS2700, [5/1147B], Court of Criminal Jurisdiction, Minutes of proceedings, 1788-1815, pp. 81-6, R2391.

³  Joseph Pearce possible arrived per Pitt during 1792 and is described as a landholder at Richmond 19 Nov 1794. On list of all grants and leases of land registered in the Col Sec’s Office (Fiche 3267; 9/2731 p.30)