[AustLII] Supreme Court of New South Wales

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R v Stephenson [1828] NSWSC 103 (5 December 1828)

Last Updated: 12 October 1998

[sodomy - whaling - death recorded - sentencing discretion]

R. v. Stephenson, Airs, Turner and another

Supreme Court of New South Wales

Stephen J., 5 December 1828

Source: Australian, 9 December 1828

Mr. Justice Stephen having taken his seat, James Stephenson, Henry Airs, Thomas Turner, and -------, were arraigned, being severally indicted for an unnatural crime.[1] One of the prisoners, it appeared in evidence, was chief mate, and the others were seamen belonging to a whaling vessel, which recently put in here. We shall not enter into the disgusting details of this case. Suspecting, from the apparent close intimacy of the parties, and their secluded habits, that all was not correct, the Captain and others took an opportunity of observing their conduct, with more than common circumspection, which finally induced the Captain to bring his vessel into port, and the merits of the case under legal investigation.

The prisoners being indicted capitally, and there being no direct proof of the suspected object of their assembling having been effected the Court directed a verdict of acquittal. The prisoners were, however, detained to answer to a fresh information.

[1] When George Browne and William Lyster, marines on the ship Royal Sovereign, were convicted of this crime, Forbes C.J. said: "George Browne, and Wm. Lyster, you have been severally convicted of an unnatural crime, called sodomy, --- a crime which our laws hold in particular abhorrence. I shall not go into any observations on the offence of which you have been convicted, further than to state, that, after the most anxious consideration which I was enabled to give your case, and after putting it to the Jury as one deserving of their most attentive regard, with respect to all the circumstances connected with it, they came to the conclusion that you were guilty. The law has made your offence capital. It is one at which nature shudders; and it therefore only remains for me to pass upon you that sentence which is affixed to the crime of which you were convicted." He then sentenced them to death. Source: Sydney Gazette, 15 December 1828. Despite this statement, he did have a discretion to impose a lesser sentence: under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2). Browne, who had been chief officer of the Royal Sovereign, was hanged on 22 December 1828: Australian, 23 December 1828. Lyster, a boy, was reprieved: Sydney Gazette, 24 December 1828, and 13 January 1829. The Gazette said on 24 December that "the youth fell a victim to the artifices of Browne".

Sodomy (or buggery) was difficult to prove. See Sydney Gazette, 30 January 1830, on the unsuccessful prosecutions of Maher and Cheeeman [sic]. The former was acquitted on the capital charge, and remanded to take his trial on a charge of misdemeanor. The latter resulted in a nolle prosequi, a decision not to prosecute. The witness to the offence was himself a participant and liable to be indicted. Mr Justice Stephen held that a witness could not be called on to incriminate himself, so the witness's testimony could not be admitted.

One of the few statements of the law on the issue was made in 1830 in R. v. Unwin: "The 9 G 4. C. 31. s. 18 does not make any alteration in the nature of the crime of Buggery. Therefore where a prisoner penetrated the body of a Bitch dog but was disturbed before he sated his lust Held that he could not be capitally convicted." (Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 288. See also Sydney Gazette, 2 February, 6 May 1830.) See also Sydney Gazette, 7 May 1828 (William Simmons acquitted of an "unnatural crime"); Sydney Herald, 27 February 1832 (Michael Connolly sentenced to death recorded, that is transportation, upon conviction of an "unnatural crime" and Thomas Edwards to be worked in irons on the public roads for 12 months for attempting to commit the crime).

See also R. v. Thomas Evans, Sydney Gazette, 4 September 1830; Australian, 10 September 1830.