On January 2 1878, a police magistrate committed 31-year-old Thomas Tweedie and 19-year-old Martin Freeney to trial in the Central Criminal Court for committing an unnatural offence – the ‘detestable crime of buggery’ – in the Domain.
The harbourside parklands known as the Domain had long attracted men and women wanting privacy for sexual activity.
Late on the night of New Year’s Day 1878, Senior Constable William Cable noticed Thomas Tweedie and Martin Freeney lying behind some trees in the Domain.
“Tweedie was lying on the ground on his stomach. Freeney was lying on top of him. I said, ‘What are you doing there?’
“With that, Freeney rolled off Tweedie. Tweedie’s trousers were down below his thighs. His posterior was naked.”
Freeney’s hard-on poked out of his pants despite the lad trying to hide it with his shirt.
His ‘person’ was very hard
“I could see Freeney’s person was very hard.”
Just to be sure, the constable grabbed it.
“I then caught hold of him by his person.”
Not as suss as it sounds. Indeed, cops routinely grabbed the dicks of men caught in the act. Although it was a good while since anyone went to the gallows for it, buggery remained a capital crime. So the burden of proof was high.
Henry VIII’s original Buggery Act required evidence of both penetration and emission. But over time, penetration alone became proof enough. However, when no witness actually observed a penis penetrating an arse, the cops needed to scoop up whatever evidence they could. So, they checked for hardness and the presence of lubricant or semen.
“What are you doing here, you dirty beasts?”
“We are doing nothing,” responded Freeney.
Cable checked Tweedie’s dick and then allowed both men to do up their trousers. He held onto both as he started towards the Police Station. During the walk, Tweedie asked Cable to release them.
“We have done no injury to anybody.”
Cable held tight. At Woolloomooloo Street, he met another cop and handed over Tweedie. Once he had the younger man alone, Cable attempted to obtain an admission of penetration.
“I suppose he served you the way you were serving him?”
“I don’t know whether I was [in] him or not.”
“Was you [in] him?”
Freeney never answered. Still light on evidence, Cable sent for Dr Myles Egan.
“I found a considerable amount of redness about the anus as if some violence had been used there. It might have been caused by a man’s person or a finger or some such substance.”
The trial
The trial took place on February 14 before Chief Justice James Martin. The Attorney-General prosecuted and agreed with Justice Martin’s suggestion to alter the charge from Buggery to Attempted Buggery. Cable never observed Freeney’s cock in Tweedie’s arse, and Dr Egan qualified his evidence with ‘as if’ and ‘might have’.
Martin Freeney proved a popular lad. Ten witnesses lined up on his behalf. His mother praised her son’s behaviour and emphasised that he never drank alcohol.
“There couldn’t be a better or more obedient child. He never drank except as medicine. He has been a good son to me.”
Martin’s sister agreed. Then followed a procession of people who had known the defendant since his early childhood.
A Justice of the Peace, a publican, a drayman and a grocer all attested to Martin’s good morals. The manager of a coal company where the lad previously worked and a fellow worker testified on his behalf. As did the cabinet-maker Martin currently worked for.
Both Martin’s mother and his boss claimed he was only 17. Perhaps true, or maybe a ruse to get a lighter sentence. Martin Freeney worked three years at the coal company and then 16 months at his current job. If he was 17, he started work at the age of 12.
The most powerful testimony on Martin Freeney’s behalf came from family friend William Lear.
Have a drink
“I saw the boy on January 1, about 11 o’clock. He was coming along Castlereagh Street alone. I saw the other prisoner put his hand on the boy’s shoulder and say, ‘Hullo. Where are you going?’
“The boy said ‘home’.
“He said, ‘Come and have a drink first’.
“The boy said, ‘No thank you. I don’t drink’.
“He said, ‘Have a ginger beer then’.
“The boy then went into a public house with the man. I went into the public house also. I saw the boy have a ginger beer, and the man had ale. The man put a little of the ale amongst the boy’s ginger beer. I went outside and the man and the boy came out, the man with his hand on the boy’s shoulder. The man tried to take the boy into another public house, but the boy seemed unwilling to go in. They both went in. I did not see them come out. I went away.”
Lear’s evidence fitted with an earlier statement from Constable Cable.
“The boy had a stupefied appearance as if he had been under the influence of some narcotic.”
Justice Martin noted the verdict in his diary.
“The Jury retires at 10 minutes to 1 o’clock and returns at 5 minutes past one. They find the prisoner Freeney not guilty, and the prisoner Tweedie guilty of an attempt to commit sodomy. Freeney was discharged. I sentenced Tweedie to two years hard labour in Darlinghurst Gaol.”
Read more Australian prosecutions for consenting adult male sex.
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