Depositions for William Simmons, 6 May 1828 Sydney Trial
In the Ninth Year of the Reign of
Our Sovereign Lord George 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 Alexander Macduff Baxter Esquire 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 Sixth day of May in the year of Our Lord One thousand eight hundred and twenty-eight at Sydney, in the Colony aforesaid, informs the said Court, that William Simmons late of Parramatta in the said Colony, Labourer not having the fear of God before his eyes nor regarding the order of nature but being moved and seduced by the instigation of the devil on the eighteenth day of February in the year of Our Lord One thousand eight hundred and Twenty-eight with force and arms at Parramatta aforesaid in the Colony aforesaid, in and upon Michael McCabe in the peace of God and our said Lord the King then and there being 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 Michael McCabe and him the said Michael McCabe then and there wickedly diabolically feloniously and contrary to the order of nature did carnally know and that detestable and horrid crime called Buggery with the said
Michael McCabe there and then wickedly diabolically feloniously and contrary to the order of nature did commit and perpetrate to the great displeasure of Almighty God and the disgrace of all mankind, against the form of the Statutes in such case made and provided, and against the peace of our said Lord the King his Crown and Dignity.
[Signed] Alex M Baxter [AG]
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[On the reverse of the above (1-2) is the following]
The King against William Simmons
Witnesses: Michael McCabe, Thomas Byrnes
6 May 1828
Plea – Not Guilty
Adjudged – Not Guilty
[Signed] John Stephen
William Simmons Defence
On the 5th of February last Michael McCabe the Complainant in this case absconded from No 9 Iron Gang and was taken in Sydney and on the 18th of said month was forwarded to Parramatta to be dealt with.
On the 19th he was forwarded to his Gang where he remained that night and the night following and slept in one bed with another man of the name of John Raison, on the 21st the Overseer mustered the Gang and found McCabe again absent but was taken the same night and brought to Court on the 22nd and received 50 lashes at the same time he committed a robbery on John Raison, which can be proved.
The said John Raison accused McCabe with robing [sic] him, when he acknowledged to taking 1 Waistcoat which was found on his back by the Overseer. I then persuaded Raison to report him to the overseer which he did and then the overseer put heavy irons on him and told him he would have him flogged again for the Robbery. He then said he would not work any more in the Gang and on being asked why he would not he answered because he had been ill used by Simmons and Raison and which report he raised for the purpose
of getting rid of the Gang at the time as he was apprehensive he would be severely dealt with at Court if taken there for the Robbery, and also with a view to get clear of the Gang entirely as he often said he could not endure the Hardship thereof.
John Hopper: Will prove that McCabe told him that he would do something indifferent to get rid of the Gang and said he would not stop with such an overseer to get his flesh cut in such a manner.
William Brein: Will prove that he slept in one hut with McCabe the nights McCabe stated he was ill used, and will swear that McCabe slept each night with Raison never heard any crying out or noise in the hut more than usual.
William Barnett: Will prove that McCabe acknowledged to him that both Simmons and Raison was innocent of the charge he laid against them and that he did so for the purpose of getting out of
the Gang and asked the witness’s advice how he could keep from prosecuting them with any safety to himself.
John Caghlan: To the same effect.
John Smith: Will prove that McCabe confessed to him that the charge he laid against Simmons and Raison was a false one and expressed a great sorrow for doing so and acknowledged his raisons [sic– reasons?] for doing so, stating at the same time that he was inclined to write to Simmons on the subject of his innocence but was afraid Simmons would keep the letter and shew it to the Judge.
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[On the reverse of the above (1-3) is the following]
McCabe against Simmons
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The Sydney Gazette and New South Wales Advertiser, Sun 31 Jul 1808
SUPREME CRIMINAL COURT
(Before Mr Justice Dowling)
Tuesday, 6 May
William Simmons was indicted for an unnatural crime, and Acquitted.
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The Australian, Wed 7 May 1828 4
(Monday.) [5 May 1828]
William Simmons was indicted for being the perpetrator of an unnatural crime, and acquitted.
1 SRNSW: NRS880, [SC T28], 28/65; SRNSW: NRS880, [CP T137], 596 Supreme Court, Papers and depositions, 1828. Emphasis added.
2 The Sydney Gazette and New South Wales Advertiser, Wed 7 May 1828, p. 3.
3 Details of this case could not be found in Justice J Dowling’s notebook (2/3186 - 1 May-16 May 1828).
4 The Australian, Wed 7 May 1828, p. 3.