1839, Thomas Parry  ¹

 

Justice J Dowling’s Notebook  ²   

66

Crown Side
Cor. Dowling CJ
Friday 2nd August 1839 (See vol. 165  ³   for 1st Augt. Reg v Thos Parry)

Military Jury
                           Sodomy on James Reed on 22nd Sept. 1838   
                   }       at Currabubla [now Currabubula] Creek

    James Reed  ⁴  I am assigned to Mr Davis at Jerry’s Plains – I was shepherd for him at Liverpool Plains. I came in 1837 for life – for Housebreaking, Linfield in Sussex. Tried at Lewes.

    I know the prisoner – The prisoner was a bushranger. He came up to me on the 22nd Sept. last

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as [I was] (hearding ?) my sheep at Currabubla Creek. There was no one with me – James (?) was a (fellow ?) (?) of (mine ?) & watchman – Between 2 & 3 in the afternoon I had seen prisoner 2 or 3 times before, passing our station. (Merely ?) passing the time of day. When he came to me, he says “Where are you going young man” – I was just (starting ?) driving my sheep out of the water. I said “I am going home with my sheep.” – “Not as yet” says he – I said “I am.” He then said “You are not – pull down your breeches.” – I said “I shall do no such a thing” – “If you won’t I will do it myself.” There was another man

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with him, who stood on the bank of the creek. He then stept [sic] up to me & unbuttoned my breeches himself. Then he lays me down on my back. I made no resistance. I was afraid. He had a pistol. He said if I made any alarm he would blow my brains out. – He then turned me off my back on my right side – As I lay on my right side I saw his privates. He had the pistol at that time either on his right arm, or at the end of his oppossum cloke. I won’t be sure. He then turned me from my right side on

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my belly. He says “Your (?) (?) I will fuck you – & if you make any to-do, I will blow your brains out.” In the mean time he was between my legs. I felt (seed ?) (come ?) his (penal ?). – He was with me then ¾ of an hour to the best of my recollection. He had the pistol in his hand all the time – (although ?) I made no resistance. The second man was about 20 yds. – I said nothing to him. He penetrated my person. He entered my body – I was struggling to get away. I was all alone by myself. I was afraid to do anything – He said nothing to me. I was forced to remain in the creek.

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He said very few words to me. Had a hold [of] me by the throat. He never spoke to me after he laid me on my belly. I did not speak to him. I laid ¾ of an hour I laid. He went down to the creek to our watchman. The other man was looking on. He said nothing on going away. I never saw the 2nd man afterwards – I told the shepherd Richard (Shay ? passim) at night. When he came after me –
    I told him what happened [to] me & he had me home. This man (injured ?) my inside. My shirt was all over blood. I then told my watchman I would not shepherd there any more. The watchman

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washed my shirt – next (morning ?). He pulled it off – I never had the piles – I was about a mile & a half from my hut at the time. There was another station ¾ (?) – I could not return (immediately ?) – I was not able & did not until the shepherd came for me about a quarter of an hour after sun down. I was not able to walk, until I was got up, & then the man was forced to lead me – I had been shepherding about 8 or 9 months. I had not been shepherding at home. I liked shepherding well. The shepherd came for me, (finding ?) I did not come home with the sheep. I have been flogged once since I came into the Colony, for diso-

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bedience & sauciness to the overseer. He told me to pick on the road in Govt. employ –
    I was 9 or 10 days before I could get out of my bed. I was ill inwardly, could not eat any thing. There was no Doctor convenient. It was 6 or 7 [days? weeks?] afterwards I saw the prisoner at Musclebrook [sic–Muswellbrook]. I am scarcely 20. Nothing of this kind ever happened to me before – I told (?) what happened to me the same (evening ?) as near as I (could ?) – I told him a man came. repeats. –

    “repeats word for word” –

    I was in Davis’ employment better than 12 months. I have been at Liverpool Plains ever

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since – the head station –

    Cross-examined. He is the man, & I said so the first –
    He said I only want to know who put you up to it – no one put me up to it – I did not wish to have that station
–
    I had 2 dozen tried to persuade me not to swear to him – I should get my life into trouble. Nothing more to ask him.  ⁵  I mean to swear he is the man, & that my body was penetrated. He gratified himself in my body –
    James (?) I heard his name (?) (at lockup house ?).

    James Nunn I am a prisoner assigned to Mr Davis – for life. I have been here going on 8 years. I was at a station called (?) near Currabubla Creek – I was watchman

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& hutkeeper. On the 22nd Sept. last at about 2 or a little after in the day I went about 100 yds in front of my hut in the creek to clean the water hole out, & I was going about ¼ of an hour or 20 minutes as near as I can guess, & on turning back I found 2 strange men in the hut, & one of them said to me, “The chum that is following Mr Davis flock of weathers is laying down at Culberbuller water drunk – & his sheep were crawling away from him. They said that I was to go & (see ?) after the sheep. I (said ?)

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– I shall take charge of my hut & what’s in it, & when the other shepherd came home I would tell him about it. I had (seen ?) the men before. The prisoner was one of the men & it was the other that spoke to me. There was not then any (longer ?). The other man said that he should like to have fucked the man, reported drunk at the water hole. They went away. In the course of 2 or 3 hours the shepherd came home & I reported to him what they had told me – After I got Shay’s flock in, I sent him after Reed’s flock & on going passed my hut I see Reed’s sheep coming home alone, & I ordered Shay to bring the flock home & I would (count ?) him. The sheep were right.

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Shay went for Reed & brought him home – in about an hour & a half after sun down. He was perfectly sober. He was very bad all the whole (blessed ?) night. He had fits off & on the whole night. We could not get any speech from him. He said he felt very sore at the back side & inwards. The first word he said when he was back to me – He would never follow a flock of sheep at that station any (more ?) – I asked him “What was the reason of that” & he up & told me all about it. He told me he was (watching ?) his sheep at Culberbuller water hole, & these two men came up to him

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& asked him where he was a-going, & he told them he was going after his sheep (directly ?) – Reed asked them where they was going & the other man who was with the prisoner said he would soon let him know where he was going – pulling out a (certificate ?) from underneath the leg of his trowsers – & Reed read it – & saw “Wm. Kennedy’s name on it.” He gave it him back again. Then the prisoner took the (string ?) off Reed’s trowsers, & Reed told me he had to do with him about ¾ of an hour & on (having ?) to do with him, took a pistol out in a (?) & said if he made any alarm

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whatsoever he would blow his brains out on the spot – not only here but (in ?) these plains, when (you’re ?) seen, or you mention it hereafter – death shall be your doom. Reed told me this when he came home. He was off and on the bed all the night. When he came into the hut, he nearly tumbled into the fire – I pulled him, & saw the backside of his shirt – There was the breadth of my hand of pure blood on it. I washed his shirt in ye course of 2 or 3 days. I had to boil it. He had a clean shirt afterwards. – He was in the hut for a (fortnight ? passim). He could

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not walk alone for nearly week. He complained of being hurt in the backside & inside. I did not examine him. – I could do no other than believe it. He had convulsions & fits. He did not eat a pound of bread the whole fortnight. He had some milk & tea. I saw him go out with his sheep that morning – & appeared very well. He was not discontented – I never heard him complaining shepherding – till after this. – I had known Reed 12 months. Bob Allen was overseer at that time, & next morning at break of day I reported to him. I can’t tell when the JP. – In a week afterwards & saw the Police & brought them up to my hut.

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In (April ?) last I went before the JP. I was not (?). I was examined before Mr Day at Musclebrook, 100 miles from my place – the nearest (Magistrate ?) to my station. I don’t [know] when or where he was taken. I had seen the prisoner about 3 weeks before this, with another man at my hut. I ordered him away – I told him it was my master’s particular order, for no man to stop at the station without leave from the overseer – I was tying a (string ?) at the corner of one of my (hurdles ?), when they two came up to me out of the hut. The prisoner said if I

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was not an old man, he would make a back log of me on the fire – I am 55 – I never saw anything vicious or unmanly in his habits.

    I was punished 4 or 5 years. I was in Govt. service about 2 yrs before I was assigned to Davis, & have been in his service 5 yrs. Punished once for insolence. I was tried at Bury St Edmunds for housebreaking – I heard he was in the (?) Co’s service. I did not see an opposum cloke with the prisoner or the other man – I only saw a rug – I never heard Reed complain of anything before.

No questions

    The overseer went to see the man while he was ill –

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Mr Davis was not there.

    Charles Nicholson (Esq ?) MD  ⁶  I cannot believe that part of Reed’s evidence, in which he represents that the bleeding occurred from the violence committed – for this reason – the violence that would have instanced the bleed (?) must necessarily have caused intense pain to the prisoner himself – & would seem to destroy all lacivious [sic–lascivious] feeling. The prisoner & the (prosecutor ? passim) seem of equal strength. I doubt Supposing penetration were effected I can scarcely believe that the prosecutor could be sensible of

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the emission, which he represents to himself to have felt. – It seems most (improbable ?) & (inconsistent ?) that the prisoner could be in (contact ?) with him for ¾ of an hour – I would rest my argument as to the (improbability ?) of the prosecutor’s statement from this fact – that the pain & (bleeding ?) alleged to have occurred must have required such a degree of violence & force on the part of the prisoner that the prisoner himself must have suffered more (hurt ?) himself than the prosecutor, if his statement be true. It would seem unlikely from the (violence ?) (required ?) to (affect ?) the (effect ?), that he could do it encum-

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bered with a pistol or an oppossum cloak.

    [James] Reed – I was troubled with fits before I came into the Colony, but not since till then – convulsions.

    Dr Nicholson It seems to me that the thing is altogether improbable – If the (offence ?) was (committed ?) the perpetrator must have had suffered in an equal or greater [degree] than the prosecutor – The force alleged to have been used must have destroyed all disposition to have gratified lust – It is chiefly

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from that circumstance that I would found my opinion. It appears to me next to impossible for the prisoner to have penetrated the fundament of this man. I won’t deny that the attempt may have been made. The man being liable to fits, also I think throws a degree of improbability over his evidence – I can’t conceive the offence could have been accomplished to effect such (violence ?) –

    Cross-examined. (Jury ?) I think it could not be accomplished between (an ?) (adult ?) & (?) person – (not ?) (?) of equal x age & strength.  ⁷  The prisoner’s sufferings must be greater than the witness’s. The blood came mostly likely from the prisoner.

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The Jury out, a good while & found prisoner
Guilty
Remanded

~ ~ ~ ~ ~

The Sydney Herald, Mon 5 Aug 1839  ⁸

LAW INTELLIGENCE.
Supreme Court.– (Criminal Side.)

    Friday– [2 August 1839] Before the Chief Justice [Sir James Dowling] and a Military Jury.

    Thomas Parry, a runaway convict was indicted for committing an unnatural offence at Liverpool Plains, on the 22nd of September, Guilty. Remanded.

~ ~ ~ ~ ~

The Sydney Monitor, Mon 5 Aug 1839  ⁹

SUPREME COURT

…

August 2, 1839.

    Before Sir James Dowling and a Military Jury.

    Thomas Parry, aged 25, a convict illegally at large, stood indicted for an unnatural offence committed on James Reed, aged 19 an assigned servant to Mr B Davis of Liverpool Plains on 22nd September. Dr Nicholson being examined, deposed that to him the circumstances of the offence as described by the prosecutor, appeared highly improbable, if not impossible, and he was confirmed in his opinion by the admission of the prosecutor, that he had been subject to fits, which threw a shade of improbability upon his evidence.

    After the case had been gone through, His Honor read over the evidence and summed up. The jury retired, and upon their return to the Court, delivered in a verdict of Guilty. Remanded.

~ ~ ~ ~ ~

The Sydney Gazette and New South Wales Advertiser, Tue 6 Aug 1839  ¹⁰ 

SUPREME COURT. – CRIMINAL SIDE.

…

Friday, August 2. [1839]
    (Before the Chief Justice and a Military Jury.)

    Thomas Parry, a runaway convict, was indicted for committing an unnatural offence at Liverpool Plains, on the 22nd of September. – Guilty. – Remanded.

~ ~ ~ ~ ~

The Sydney Herald, Mon 19 Aug 1839  ¹¹ 

LAW INTELLIGENCE.
———◦———

…
    SATURDAY.– [17 August 1839] Before the Chief Justice [Sir James Dowling].
    Thomas Parry, convicted of an unnatural crime on a former day had sentence of death passed upon him.

~ ~ ~ ~ ~

The Sydney Monitor, Mon 19 Aug 1839  ¹²  

SUPREME COURT.
————

…

Saturday, August 17.

    The Chief Justice sat to day, and the following prisoners, convicted during the Sessions, were sentenced.
    Thomas Parry, an unnatural crime.—Death.

~ ~ ~ ~ ~

The Colonist, Wed 21 Aug 1839  ¹³  

SUPREME COURT—CRIMINAL SIDE.
————
Saturday, August 17.

Before the Chief Justice.
    Thomas Parry, convicted of an unnatural crime on a former day, had sentence of death passed upon him.

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Enclosure A 1 to NSW Executive Council Minute No. 26, 1839 ¹⁴  

181

    Report of the cases of capital offenders tried and convicted in the Supreme Court of New South Wales at a Criminal session holden at Sydney in August 1839, before His Honor Sir James Dowling, Knight, Chief Justice.
…

182

    Regina v. Thomas Parry: The Prisoner Thomas Parry was tried before me on the second of August for an unnatural Offence on the person of James Reed at Carrabubla Creek, Liverpool Plains, on the 22nd September 1838.

    The Prisoner was a runaway Convict at large, and the prosecutor was a Convict shepherd in the employment

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of Mr Davis at Jerry’s Plains. On the day in question he was attending a flock of his Master’s sheep, when the prisoner and another man came to him. The prisoner was armed with a pistol, and after a little conversation told him what his object was – He resisted the overture, when the prisoner threw him down and effected his purpose, with great violence, and then went away leaving the prosecutor so much injured that he could not find his very home, until led by another Shepherd who had (missed ?) Him at the time when he ought to have brought home his flock. He was afterwards confined nine or ten days to his bed in consequence of the injury. The Jury found the prisoner Guilty and I passed sentence of death and warded execution thereon.

    [Signed] James Dowling CJ
    Sydney 19th August 1839.

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NSW Executive Council Minute, 23 Aug 1839  ¹⁵  

Minute No. 26

    Council Chambers Sydney
    Friday 23rd  August 1839

Present
    His Excellency the Governor [Sir George Gipps]
    His Excellency Major General Sir Maurice Charles O’Connell KCB
    The Hon the Colonial Secretary [Edward Deas Thomson]

    The Council having met pursuant to Summons, His Excellency the Governor laid upon the Table, the Report of the Chief Justice [Sir James Dowling], and Mr Justice Stephen, on cases of Prisoners capitally convicted before them, at the late Criminal Sessions of the Supreme Court, in which sentence of Death has been passed, and their Honors being severally introduced, explained the circumstances attending the cases respectively tried before them.

    The Council after an attentive, and mature consideration of the same, advised as follows, viz
…
    Thomas Parry convicted of an unnatural offence committed on the person of James Reed; attended by circumstances causing some doubt as to the extent of the offence, (arising chiefly from the evidence of Dr Nicholson). [see * below].

    That the sentence of death passed upon the Prisoner be commuted to Transportation to Norfolk Island for life; with hard labour in Irons, and Solitary confinement at night; and not to be allowed to return to this Colony.
…
Council adjourned sine die; at half past twelve, having met at eleven.
Clerk of the Council [William Macpherson]

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The Sydney Gazette and New South Wales Advertiser, Tue 17 Sep 1839  ¹⁶   

DOMESTIC INTELLIGENCE.
————

…
    COMMUTATION.—His Excellency, with the advice of the Executive Council. Has commuted the sentence of death, which had been passed during the late Criminal Sessions on the following four men, to that of transportation for life to a penal settlement. Thomas Parry, for an unnatural offence,
…
    In the case of Parry a further punishment is ordered, namely, that he shall for the remainder of his life be kept every might in solitary confinement.

~ ~ ~ ~ ~

The Colonist, Wed 18 Sep 1839  ¹⁷

    THE EXECUTIVE COUNCIL.—Has resolved upon the commutation of the sentences passed on the following prisoners to be transportation for life, viz:—
…
    Thomas Parry, convicted of an unnatural offence. The latter prisoner has been sentenced to be confined in a solitary cell every night during the remainder of his life.

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New South Wales Medical Board, 7 Jan 1839 ¹⁸  

At a meeting of the Board held this day at the General Hospital present
Messrs Dobie & Robertson
Drs Wallace & Nicholson *
Mr Dobie in the Chair.
…
    The Board proceeded to the examination of the different Diplomas and Testimonials submitted, and ordered the names of the following Gentlemen to be inserted in the Register Book.
…
    12.    Charles Nicholson  ¹⁹  of Sydney, admitted a Licentiate of the Royal College of Surgeons of Edinburgh 26th July 1832 and a, Doctor of Medicine of the University of Edinburgh, 12th July 1833.

 

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¹   Depositions (9/6319), for this case, could not be located at SRNSW.

²   SRNSW: NRS5869, [2/3349], Judiciary, J Dowling, CJ. Notebooks Proceedings of the Supreme Court of NSW, 1828-44, pp. 66- 86. Emphasis added.

³   The author examined Justice Dowling’s vol. 165 (2/3350 – 1 Aug-30 Sep 1839) no reference could be found regarding Thomas Parry.

⁴   Mn: Innocent of the charge

⁵   Mn: He got up away from

⁶   Mn: Called by the Judge, happens to be present

⁷   Mn: Cross-examine: next to impossible

⁸   The Sydney Herald, Mon 5 Aug 1839, p. 2.

⁹   The Sydney Monitor, Mon 5 Aug 1839, p. 2. Emphasis added.

¹⁰  The Sydney Gazette and New South Wales Advertiser, Tue 6 Aug 1839, p. 3.

¹¹  The Sydney Herald, (Supplement) Mon 19 Aug 1839, p. 2.

¹²  The Sydney Monitor, Mon 19 Aug 1839, p. 2.

¹³  The Colonist, Wed 21 Aug 1839, p. 4.

¹⁴  SRNSW: NRS4234, [4/1446], Executive Council, Appendices to minutes, 1825–48, pp. 181, 182-3.

¹⁵ SRNSW: NRS4232, [4/1520], Executive Council, Minute books, Minute 26, 23 Aug 1839, R2437.

¹⁶ The Sydney Gazette and New South Wales Advertiser, Tue 17 Sep 1839, p. 2.

¹⁷ The Colonist, Wed 18 Sep 1839, p. 3.

¹⁸ SRNSW: NRS9871, [7/5151], Medical Board, Minutes of proceedings and register, Dec 1838-Aug 1946, pp. 3, 4.

¹⁹ Mn: Died 1903

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