Sydney Bench of Magistrates, Minutes of Proceedings, 15 Mar 1809
15th March 1809
Bench of Magistrates
The Judge Advocate
Major Abbott Esq
John Harris Esq
Charles Throsby Esq
(Robert ?) Dundas Fitz Esq
(Mr ?) D Dundas brought before the Bench charged with an attempt to commit an Unnatural Crime on W[illiam] Hutton and others.
The evidence of Sergeant Major Whittle being read he confirms the same to his deposition taken by the Magistrate on Tuesday last.
The evidence [of] W Hutton and private being read he confirms the same together with the other lieutenants.
The evidence of T[homas] Lynch confirmed.
The evidence of James Stephens confirmed.
The evidence of (?) (?) confirmed.
The evidence of James Fox confirmed.
Court of Criminal jurisdiction, Minutes of Sydney Proceedings, 18 Mar 1809
18th March  Court [of Criminal Jurisdiction] met.
David Dundas placed at the Bar V. Indictment No. 1.
Sergeant Major [Thomas] Whittle Sworn
Q 1: Was any intelligence of an unpleasant nature reported to you on Tuesday the 14th Inst.? [Crime attempted Monday 13 March 1809].
A: I was walking in the rear of the Barracks that morning, and I heard the Corporal, and several of the men talking together about an attempt that was made on three of the Sentries the preceeding [sic] night; I went to them, and asked them what was the matter; they told me that an attempt was made by the Prisoner on three of the Centries [sic, passim] to have an improper connexion with them; on asking who the Centries were, they told me their names were Thomas Lynch, William Hutton, and James Stephens; on requiring
Thomas Lynch and James Stephens of the Circumstances from them they informed him, that they did not know the person; Deponent says, he cautioned them not to make use of any Gentleman’s name, particularly Mr Dundas’s name, as he did not think he was capable of something such as a crime. I waited untill [sic] Hutton was fetched to me; on his coming I asked him what had happened to him on his part the preceeding night; he stated it, and positively said it was the prisoner that had made the attempt. I then took the (prisoner ?) to Major Abbott.
Q by Prisoner: Then you know nothing respecting this business but from heresay [sic]?
A: I do not.
Q: Was [sic, passim] you not the first Evidence that was examined before the Magistrates on the 14th ?
A: I was.
Peter Ashford a Corporal in the NS [New South] Wales Corps. Sworn.
Q 1: Was you Corporal of the Main Guard on the 13th Inst. ?
A: I was.
Q 2: Who was (planted ?) [passim] Centry at the Hospital Wharf between the hours of 8 and 10 at night?
A: William Hutton.
William Hutton a private in the NS Wales Corps, sworn.
Q 1: Was you one of the Main Guard on the 13th Inst.?
A: I was
Q 2: Was you planted Centry at the Hospital Wharf at eight o’clock, and did you remain Centry at that place from eight to ten?
A: I did
Q 3: State to the Court distinctly what passed between those hours?
A: Before 9 o’clock, several Gentlemen passed me, and went down towards the end of the Wharf, when some person hailed the Hibernia, and a Boat came from her; I went down towards the end of the Wharf, and saw some persons in the Boat, whom I suppose to be some of the Gentlemen that had passed me; There was a Woman in the Boat, I asked her where she was going, her answer was “not for
far”; I told her that was no answer, and that she should not go in that Boat; Mr Dundas was then standing on my right hand, and told me she should go; I answered she should not go; Mr Dundas then told me, that I did not know the duty of a soldier, or I would not act in that manner; I assured him that I knew my duty as a soldier on Shore, as well as he did as a Captain, on board. When one or two of those Gentlemen that were incompany with Mr Dundas, took him a short distance to the rear of me, and returned, one of those Gentlemen told Mr Dundas not to trouble the Centry in that manner, as he was doing nothing but his duty; by this time the woman had come from the Boat upon the Wharf, when they all went away from me; in a few minutes the woman returned by herself; I at that time saw Mr D[undas] as far as the corner of Mr Nicols’s (pailing ?) [passim], and shortly after he returned alone, and enquired of me as he passed me where
was the woman; I told him I knew nothing about her, observing he was in liquor. The Prisoner then went to the end of the Wharf, and entered into conversation with the woman; all that I heard of such conversation was, the woman saying, I cannot, or will not, or both; He then left the woman and passed me, and I again saw him as far as Mr Nicols’s pailing, when in a short time he again returned, which he had done two or three times before, and came up close towards me, and laid hold of one of my fingers. I immediately pulled my hand from his hand; He then told me not to mind him, you and me can do something between ourselves, and stroked me down the fore part of my trousers with his hand; I then asked him what he meant, and he again desired me not to mind him; now says he, what shall I give you to give me a genteel F-----g. I then paced one pace backwards, and brought my arms to a Port, and desired him to be gone for a Scoundrel,
or a B----r (but cannot speak positively which of those words I made use of) or I would put my bayonet into his guts; he then left me, and went towards camp; some time after I heard a foot approaching towards me; I challenged, and an answer was given “Dundas”; he approached so nigh (to ?) me that I could see it was the same person that had before been with me; I desired him to go, and not trouble me upon my post; he then went away, and I saw him no more that night.
Q 1: How long have you known Mr Dundas by sight?
A: Since he came in the (?).
Q 2: You here said it was dark, do you not think it possible you might mistake him for another man?
A: I am certain I did not mistake.
Q 3: Have you not seen a man very much resembling Mr Dundas both in appearance and dress?
A: No I never did.
Q 4: How was the person dressed that had this conversation with you?
A: A dark coloured coat, the Vest I cannot
speak to but he had white trowsers or Breeches.
Q 5: Had he Boots or Shoes on?
A: I am of opinion he had Shoes.
Q 6: Did you ever hear Mr D[undas] speak before that evening?
A: I have.
Q 7: Would you know him by his voice among a crowd of persons?
A: Yes I would.
Q 8: What is the Gentleman’s name who called him “Dundas” when he came to the Wharf?
A: I do not know.
Q 9: Can you positively swear that the same person who told you that the woman should go into the Boat, was the same that acted in the manner you have described?
A: I do positively swear it was.
Q 10: Did the person that told you the woman should go into the Boat appear to you to be in a state of Intoxication?
A: He was.
Q 11: Were there any other persons on the Wharf at the time Mr D[undas] and the other Gentleman were there?
A: Yes, there were and among others the Woman.
Q 12: Did those persons all leave the Wharf at the same time the Gentleman left it?
A: No they did not.
Q 13: Why did you not secure the person that had acted in the manner you have described?
A: Because he was in the character of a Gentleman and I was much agitated.
Q 14; Do you not know that as a Soldier and a Centrie post cubby you are to pay no respect to persons ifanything unlawful or improper is proposed to you whilst upon that duty.
Q 14: You say you was much agitated, at the conduct of this person, and you say there were a number of persons on the Wharf within the range of your post; did you mention what had passed to any person?
A: I did mention it to one person.
Q 15: How long was it after these circumstances had passed that you mentioned it to this man?
A: From ten to twenty minutes.
Q 16: During that interval had not many other persons passed you?
Q 17: Did you report it to the Corporal, or the Serjeant, on your return to the Guard house?
A: I did not.
Q 18: Did you not mention it Serjeant Johns?
A: Not that night nor to any other person except to the man at the Wharf?
Q 19: Was the man that you mentioned it to an acquaintance of yours?
Q 20: I think it Is it not rather surprising, that you should tell a stranger of what had happened, and not to your Serjeant, Corporal or Comrades?
A; I observed to you before, that I was very much agitated, and this man making mention of Mr D[undas]’s name, and asking me if he was gone, caused me to give him this reply.
Q by Prisoner: You have stated that I went down upon the Wharf with several Gentlemen, some of whom went into a Boat, and some remained on the Wharf with me, was the Girl in the Boat, or what became of herafterwards?
A: The Girl can account where she went.
Q 2 Did she go in the Boat?
Q 2: What became of the Gentlemen, that came to the Wharf with me, did they go away, and leave me there,or did I go with them?
A: The Gentlemen went up toward the Camp with Mr D [Dundas] and I saw them as far as Mr Nicols’ spailing, & Mr D returned by himself.
Q 3: Was there any other boat went off from the Wharf, except the one that went on board the Hibernia?
A: I cannot say whether there was or was not any boat went from the Wharf at that time.
Q 4: How long time had elapsed, between the person who went to camp, and whom you have sworn to be me, and the return of that person, who answered “Dundas” when he was challenged by you?
A: I cannot tell, it might be from 10 to 20 minutes.
Q 5: In what situation did you come to this Country?
A: As a prisoner.
Q 6: Did you come to this country for Perjury?
Thomas Lynch a private in the NS Wales Corps. Sworn.
Q 1: Was you on the Main Guard on Monday the 13 Inst.?
A: I was.
Q 2: Was you planted Centry at the Bonded Stores at ten o’clock on that night, and did you continue on that post until twelve?
A: I did.
Q 3: State to the Court what particularly past during that time?
A: About eleven I challenged some person, and he answered “Gentleman”; I told him to advance, and he came close to the Centry Box, and he asked if a woman had not gone through the passage between the two Stores; I told him no, he replied there was one, I again repeated that no woman had gone that way, but if he thought there was, he might go and see; he then rubbed his hand on the upper
part of my Trowsers; I then told him to go away, or I would take him prisoner; he then stepped away.
Q : Can you take upon yourself to say who that person was?
A: I cannot.
Q 2: Are you acquainted with Mr Dundas?
A: I do am not.
Q 3: Was the person drunk?
A: He was.
Q 4: How was the person dressed?
A: I cannot tell.
Q 5: Are you positive as to the time you challenged this person?
A: Just as he passed, the town clock struck eleven.
James Stephens a private in the NS Wales Corps. Sworn.
Q : Was you on the Barrack Guard on Monday the 13th Inst.?
A: I was.
Q 2: Was you posted Centry on Colonel Patterson’s House at ten o’clock on that night?
A: I was.
Q 3: Did you remain there until twelve?
A: I did.
Q 4: State to the Court what passed during the time you were Centry?
A: About 20 minutes after 11 o’clock, I was walking backwards and forwards on my post; I saw a person advancing and I challenged “who comes there”. He made no answer, and I challenged him a second time; he then came up and asked me if I had seen a woman pass that way, this question he repeated; I told him that no person had passed him since he had been Centry; He then asked me at what time I was planted Centry, I informed him at 10 o’clock; he then with his fingers, tickled me in the palm of my hand and took hold of me by my fingers, and rubbed the back of my hand down the front of his breeches or trowsers; I then pulled my hand from him, and ordered him to leave my post immediately, and go home for he appeared to be in liquor; he then went away.
Q : From what part of the Camp did he come?
A: From the back of the Colonel’s pailing.
[p. 104 is blank]
Q 2: Which way did he go when he went away?
A: Down towards (Richard Chess ?).
Q 3: How was this person dressed?
A: It was a very dark night, but he appeared to me, to have a dark coloured coat, and a white waistcoat and I think the colour of his trowsers were dark.
Q 4: Do you know who the person was, that accosted you?
A: I do not, he was a (midling ? stout ?) man.
Serjeant [Benjamin] Johns of the NS Wales Corps. Sworn.
Q : You was Serjeant of the main guard on Monday the 13th Inst.?
A: I was.
Q 2: William Hutton was a private with you on that Guard?
A: He was.
Q 3: Did he not inform you of some particular circumstance that had happened to him, whilst Centry at the Hospital Wharf, between the hours of eight and ten?
A: Yes, he did.
Q 4: State the information he gave you?
A: On the 14th in the morning, between 5 and 6 o’clock, he informed me that he had been centry at the Hospital Wharf between 8 & 10 on the 13th and that between 9 and 10 a Gentleman
had come to him, accompanied by Mr Davison, as far as Mr Nicols’s pailing; the Gentleman came up to him, and felt him with his hand, and asked him what should he give him for a genteel F-----g; That he the Centry stepped back, a yard or two, and told him that if he did not go off his post, he would run the bayonet through his guts; and that he had called him a B----r or some such name. He the person then left his post, and returned before he was relieved in the same manner; he observed that he had a white pair of Trowsers on, and that one of the knees were dirty; that he again ordered him from his post, or he would either take him prisoner, or run him through; He then told me he did not mean to keep it a secret, for his name was “Dundas”.
Q: Did Hutton signify to you, that he had already told a stranger the story?
A: Some of the Guard knew it some time before I did.
Q: Did he tell you he (knew ?) Mr Davison?
A: He did.
William King sworn, says, that as he was on the watch at the Dock yard on the 13th about 10 o’clock, some person came to him and offered him £5 to have a connexion with him, but that he is certain it was not MrDundas.
James Fox a watchman sworn, corroborates the Testimony of the preceding Evidence.
Mr William Hopley Assistant Surgeon at the Derwent, sworn, says, that he had left Mr (?) at a little after ten, that he saw some person at the Dock Yard pailing, that passing Mr Wells’s house, he was asked by Mr Wells if he had seen a person at the pailing, that he had observed him for some time, and that he supposed he was meditating some mischief; The Watchman (then ?) informed himself, and Mr Wells, as to what had passed; Soon after Mr Dundas came up, apparently in liquor, and the circumstance of the Watchman was told him; says he has no reason to believe it was Mr Dundas that he had seen
at the pailing, and that the Watchman said the person was Mr Donnovan.
Mr Wells sworn corroborates the testimony of Mr Hopley.
Here the Evidence on the part of the Crown closed and Mr Dundas being put on his defence calls Walter (Davison ?) (?) who being sworn
Q by Mr Dundas: Was you on the Hospital Wharf on Monday night with me, and if you was, relate to the Court what passed?
A: Between 6 and 7 o’clock on Monday Evening, I went to Mr Blaxcell’s house in company with Mr McArthur, Mr Kent, and Capt Harrison; I remained there until half past eight, when I walked down to the Wharf with Capt Dundas, Capt Burnside, and Mr Burton & Dr (?); on our arrival at the Wharf the Hibernia was hailed for a boat to come on shore, and a boat came; Capt Burnside and Mr Burton steped [sic] into the Boat; two or three minutes afterwards I discerned a Woman sitting in the Boat with them and heard the Centry telling Capt Dundas
that he was only doing his duty in preventing that Woman going on board. It struck me instantly, that it was so, as the admission flag had not been hoisted, and in consequence of my mentioning this to Capt D[undas], we handed her out of the Boat. The Boat then shoved off to the Hibernia, and I walked to that end of the Wharf where the Centry was, and asked what woman that was; when the Woman herself and some Gentleman said it was Rose (Luett ?). Mr Kent and myself then walked away arm in arm & Capt D[undas] followed with the Woman; I think we all stoped [sic] opposite Mr Moore’s house, and entered into conversation for a short time, after which Mr Kent and myself walked on before Capt D., and the woman still following us until we got opposite William (Blake ?)’s house, where Mr Kent & myself again stoped until Capt D[undas] and the woman came up, and I believe the
conversation then was to the best of my recollection, interrogating the Woman, whether she was not very much disappointed by not getting on board the Brig. A short time after, Mr Kent & myself again left there, which I suppose might be 10 to 15 minutes, counting from the time the woman had been taken out of the boat, and we had left the Wharf, and after walking a short way I proposed to Mr Kent, that we should return, and see Capt D[undas] home, as he was very merry with (whiskey ?). Mr Kent objected to it, and in consequence we walked home calling in at Mr McArthur on our way home, and as we passed the Stores opposite Bevan’s, the drums were beating nine.
Mr Thomas Kent Sworn
Q by Mr Dundas: Was you at the Hospital Wharf on Monday night with me and if you was, relate to the Court what passed?
A: Mr Kent’s Evidence corroborates the testimony of Mr Davison.
Mr Dundas calls Mrs Driver who being Sworn.
Q by Mr Dundas: As you was at my house on Monday night, please state to the Court at what hour I came home?
A: At near 11 o’clock.
Q 2: Did I go out again?
(Darby ?) Heath Mr Dundas’s Servant Sworn.
Q by Mr Dundas: At what time did I return home on Monday night?
A: About 20 minutes before 11, and did not go out again that night.
The Prisoner delivers into Court the paper [see ‘innocence plea’ below] No. 1.
Not Guilty. Richard Atkins [Judge Advocate] Court adjourned.
David Dundas is bound to the King in the Penal sum of Twenty Pounds.
Graham Blaxcell Esq. and Anthony Burnside bound in the like sum.
The Condition of this obligation is such that if the above (boundee ?) David Dundas shall appear before a Criminal Court to be hereafter holden and (abide ?) the decision thereof to answer such Charges as may be then & there exhibited against him, in that case this present obligation to be (void ?) or else to remain in fullforce and effect.
Defendant’s innocence plea, 18 Mar 1809
To the Judge Advocate & (to ?) the Members of the Court of Criminal Jurisdiction.
I trust as officers, as Men of (Honor ?); you will commiserate the unhappy situation in which I as a Man of feeling now stand to defend myself against the dreadful accusation contained in my Indictment.
Conscious as I am of my Innocence (that ?) – Conscientiousness is scarcely sufficient to support me under such afflicting circumstances.
You must be all satisfied of the looseness of Principles which prevails amongst the lower Classes of Persons in the Colony, And although most of you are nearly entire Strangers to the habits of that particular Class who have been Convicts, Yet I hope the manner in which Hutton has given his Evidence must have convinced You how little reliance is to be placed on their Testimony.
I will freely confess to you that I have most anxiously desired that the Court before whom I should be tried should be composed of Officers who have been longer in the Colony than Yourselves. But reflecting as I now do, that every Gentleman who has heard the Evidence which has been produced this day must be convinced of my Innocence, I dismiss that Apprehension. Because, I am assured from the Conduct You have displayed in the Trial that you have entered fully into the Spirit of the Accusation. And that Your verdict
will be dictated by Justice Honor and Humanity.
Let me not be however misunderstood as by Claim to an acquittal from motives of Pity, for I do assure You Gentlemen and I call upon God to witness the truth of my assertion that a verdict any thing short of a most honorable Acquittal will be worse than death itself.
Time will not permit me to enter into a comparative Analysis of the Evidence You have. I must therefore content myself to close that Defence by conjuring You calmly and dispassionately to (consider ?) all you have heard And in Your Judgement to (remember ?) that on Your verdict depends the happiness or Misery of my future Life.
March 18th 1809
The Sydney Gazette and New South Wales Advertiser, Sun 19 Mar 1809
COURT OF CRIMINAL JURISDICTION
On Saturday [18 March 1809] the Court re-assembled and proceeded to the trial of [David Dundas] a case, the nature of which requires no further mention than that the defendant was acquitted of the charge. After which the Court adjourned to Monday morning nine o’clock.
David Dundas assault upon John Campbell Burton, 28 Jun 1809
New South Wales
County of Cumberland }
David Dundas Mariner stands charged for that he on the twenty eighth day of June in the Year of Our Lord one thousand eight hundred and nine with force and arms at Sydney in County aforesaid in and upon one John Campbell Burton in the peace of God and our Sovereign Lord the King then and there being did make an assault on him the said John Campbell Burton then and there did beat wounded and ill treat so that his Life was greatly so that his Life was greatly despaired [sic] of and other wrongs to the said John Campbell Burton then and there did to the great damage of the said John Campbell Burton and against the peace of our Sovereign Lord the King his Crown and Dignity.
John Campbell Burton
[Dr] William Bohan Esq
Sydney Bench of Magistrates, Minutes of Proceedings, n.d.
Captain D Dundas (v. ? or & ?) G Blaxland (?) £27. 18. 6.
1 SRNSW: NRS3397, [SZ770], Proceedings 16 Aug 1808–10 Mar 1810, pp 95-6.
2 SRNSW: NRS2700, [5/1150], Court of Criminal Jurisdiction, Minutes of Proceedings 1788–1815, pp. 91-111. Emphasis added.
3 SRNSW: NRS2702, [5/1152], Court of Criminal Judicature, Miscellaneous criminal papers, 1788-1816, pp. 287, 289-90.
4 The Sydney Gazette and New South Wales Advertiser, Sun 19 Mar 1809, p. 2.
5 SRNSW: NRS2703, [5/1146], Court of Criminal Judicature, Indictments, 1796-1812, p. 7.
6 SRNSW: NRS3397, [SZ769], Minutes of the Proceedings of the Bench of Magistrates, 13 Jan 1806–30 Jul 1808, p. 307.