Depositions for John Rushton 5 Aug 1840 Sydney trial ¹

James Kelly £40

New South Wales,
TO WIT              }
    Be it remembered, that the above-named Persons acknowledge themselves bound to our Sovereign  Lady the Queen, Her Heirs and Successors, in the penal Sums expressed against each of their respective names; Conditioned if the above-named person do appear when called upon by HM Attorney General or other proper officer to give evidence in a case of sodomy to be preferred against John Rushton [aka Rishton]
then this Recognizance to be null and void, otherwise to remain in full Force and Virtue in Law.
    Taken and acknowledged before me, one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, at Bathurst in the said Colony, this 12th Day of June, One thousand eight hundred and forty –
[Signed] JT Morrisset JP [Police Magistrate]

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    Bathurst Police Magistrate
    16 June 1840

John H Plunkett, Attorney General, Sydney
Sir,
    I do myself the honor to enclose to you Depositions taken against the prisoner noted in the margin (John Rushton Neva 7 yrs. 1833) – and have to request your Instructions as to the disposal –
    I have the honor to be
        Sir
    Your obt. Servt.
JT Morrisset
Police Magistrate

1

    John Rushton [aka Rishton, arrived on vessel] Neva 7 years [sentence in] 1833 appears charged with sodomy.

    James Johnson [aka Johnstone] Bond (a boy) Nautilus on oath deposeth and saith – That he is assigned to Edwin Parke Esquire as is also the Defendant prisoner stationed at Woodstock – That on Friday night prisoner who had latterly slept in the kitchen with me attempted two or three times to put his private parts between my flanks – I told him not to do it:– He said “ ‘twas no harm” – I said ‘twas a great sin – This was on Friday night the 5th inst. I did not tell any one of what occurred on the Friday night – I was ashamed to tell any one of it –

2

I slept in the kitchen with him on the Saturday night – I went to sleep – I awoke and found the prisoner’s private parts between my legs – and I discovered that I was quite wet – The prisoner told me not to tell ‘twas no harm – He offered to be on the ground by himself – and said he must take the (lash ?) if I told the Master – He threatened me put his private parts entirely up if I complained – this was said on Friday night – I pretended to be asleep – and he then made the assault – He accomplished it on the Saturday

3

night – I swear without my consent – I have no malice or ill will against him – When I discovered on awaking that I had been treated so – I cried out – He said hush “ ‘twas no harm”:– The prisoner is placed in the kitchen to sleep with me for protection – I am the House boy. The cook has been discharged and my Master ordered the prisoner who is a labourer on the farm to sleep there. He slept there but two nights:– (Friday and Saturday) – I told the Overseer the next morning and he told me to report the circumstance to my Master:– I

4

have never been treated so before – I am fourteen years of age, and know the nature of an oath. –
James (his X mark) Johnson, Witness [to mark] Gilbert (?)

Sworn at Bathurst 8th June 1840.
[Signed] JT Morrisset JP, John Piper JP.

    Remanded for the attendance of Mr Parke’s overseer
[Signed] JT Morrisset JP, John Piper JP.

    Mr James Kelly overseer to Edwin Parke Esq. being sworn saith, on the morning of Sunday the 7th inst., the boy Johnson told me that the prisoner had tried to commit sodomy, and that he had attempted it two nights running but did not mention the particular nights; he said that he had found the prisoner’s private parts between his thighs and his thighs all wet.
    Sworn before me at Bathurst 12th June 1840.
[Signed] James Kelly

    Committed to take his trial at such Court as Her Majesty’s Attorney General may be pleased to appoint.
[Signed] JT Morrisset JP

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[On the deposition cover sheets is the following]

27. (?)
Regina v John Rushton
Bathurst
12th June 1840
Bathurst 27
Regina v John Rushton B
Depositions

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Justice J Dowling’s Notebook ²

102

Crown Side
Wednesday 5th August 1840
Cor. Dowling CJ & (Comm. ?) Jury
Reg.       
v.                                }    Sodomy on James Johnson at Bathurst on 6th June 1840
Jno. Rushton       
B[onded]                
Callaghan

    James Johnson I am 14 – a prisoner assigned to Mr Park 7 miles beyond Bathurst: I arrived here latter end of Summer. I have been since Summer. I came from Dublin for a robbery – I had been tried twice before (I ?) (am ?) 7 yrs. – Father & Mother 7 yrs. I had been in the (?) School – I know prisoner. He was assigned to Park. He was at Mr Park’s before I went there. I slept in the

103

kitchen. The prisoner slept with me in the bed. No one else slept. The Cook had left the kitchen & prisoner sent in to the kitchen to stop for company for me. The prisoner when he slept with me – he wanted to put his privates between my legs – & I would not let him. He made two or 3 attempts when I was pretending to be asleep. When I told him to stop he told me if I would not (whist ?), he would put it right up. This was Friday night. The first night he lay with me was the 6th June. On the 5th when I fell

    On the 6th he had his [judge’s notes do finish abruptly here]

Not Guilty

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The Australian, Tue 4 Aug 1840 ³

SUPREME CRIMINAL COURT
Saturday [1 August 1840]

…
    John Rushton was indicted for an unnameable offence on James Johnstone at Bathurst, on the 5th June last. The prisoner pleaded Not Guilty.

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Australasian Chronicle, Thu 6 Aug 1840 ⁴

SUPREME COURT.
———◦———
CRIMINAL SIDE.—
Monday, August 3, 1840.

…

Wednesday, August 5.
(Before the Chief Justice.)

    John Rushton was indicted for having committed an unnatural crime upon a boy named James Johnson, at Bathurst, on the 6th June last. Johnson’s evidence did not support the capital charge, and Rushton was remanded to the Bathurst bench, to be dealt with summarily for the indecent assault.

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The Sydney Herald, Fri 7 Aug 1840 ⁵

    WEDNESDAY.– [5 August 1840] Before the Chief Justice [Sir James Dowling].
    John Rushton, of Bathurst, an assigned servant was indicted for an unnatural offence.– Not Guilty, but forwarded to the Bathurst Bench to be dealt with summarily for the assault.

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The Australian, Sat 8 Aug 1840 ⁶

SUPREME CRIMINAL COURT

…

(Before his Honor the Chief Justice [Dowling]).

    WEDNESDAY.– [5 August 1840] John Rushton, labourer, late of Bathurst, was indicted for unnatural offence with a boy named James Johnson, at Bathurst, on the 6th of June last. The evidence for the prosecution failing to support the capital charge laid in the information, the prisoner was remanded to the bench of magistrates at Bathurst, to be dealt with under the summary jurisdiction Act, for the indecent assault.

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The Sydney Gazette and New South Wales Advertiser, Sat 8 Aug 1840 ⁷

    SUPREME COURT.—The cases which have as yet come on in the Supreme Court have not, in general, been of such aggravated nature as we are in the custom of seeing in Sydney. We would fain hope that this is an indication of the rising morality, or the strengthening power of the law in Australia. The following cases have already been tried. Three soldiers, named John Smith, William Martin, and John Chapman, were found guilty, for having on the 5th of May last committed a robbery on John Egles, of Pennant Hills, Parramatta. Smith and Martin were sentenced to be transported for fifteen years, and Chapman for ten years. A man named Smith was sentenced to transportation for ten years, for stealing a mare. William Hall was transported to a penal settlement for life, for firing at Mr Collyer of Castlereagh, with intent to murder him. Thomas Fitzgerald was found guilty of stealing several bottles of beer on board the ship Coromandel; sentence six weeks in gaol. John Gough, for cow-stealing, not guilty. Discharged, John Meddlecal, and Thomas Norris, for stealing a mare, not guilty. Discharged, Peter Power, for attempt to poison his master, Mr Commins, by putting a quantity of arsenic in a tea-kettle, guilty. Remanded. John Rushton, charged with an unnatural offence; not guilty. Edward Fern, indicted for rape, was found guilty, and death recorded against him. Patrick Byrnes, indicted for manslaughter, was found guilty, and sentenced to be worked two years in irons. James Glennie, indicted for the murder of his wife was found guilty of manslaughter, and sentenced to be banished for life. Peter Grace, was indicted for stealing on board the Pilgrim on the 27th December last, found guilty, and sentenced to fourteen days in Sydney Gaol. David Pugh was indicted for attempting to murder a man named Jones, on the 19th of June last, guilty. Death recorded. George Harper, indicted for wilfully and corrupt perjury was found guilty. Remanded.

 

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¹  SRNSW: NRS880, [9/6320], Supreme Court, Papers and depositions, Bathurst, 1840, No. 27. Emphasis added.