Casebook 11 - Transcripts and Commentary

[12 April, 1841 - 18 May, 1841]

Please note: the notes prior to page 61 of Casebook 11 relate to trials heard in Sydney.

Case List

Transcript of trial of Jeremiah Murphy for Larceny

Willis Note Book No 11, page 61

Pt Phillip - April 12th 1841

Jeremiah Murphy – Larceny – Plea Not Guilty

Tho's Halfpenny Sworn

I reside in Melbourne Collins Street - a Publican - The Pris'r was in my House on 22nd Jan’y last – drinking – ab’t 10 oclock at night I was stand’g at the front door – my wife came to me & asked me where the Mo’y Box was I heard some silver rattle on the Counter ab’t that time – my wife called to me – I said the Mo’y Box was in the usual place – I went to look for the Box – I did not find it where it was usually left I found it outside the Counter, it was inside the Counter before on a Cask – I found it empty – The Pris’r was stand’g near the Cask – Box was out of reach unless a person got on the Counter – I saw it ab’t 10 Min’s before I went to look for it on the Cask – near the Counter full of Silver – I saw the Prisoner sitting on the Counter before I went out – a person could not reach the Box with’t getting on the Counter – Before I found the Mo’y Box I said if it were not given up I wo’d send for a Constable – Murphy be’g nighest to the Counter I directed my (“directed my” repeated) discourse to him – I went to the Door to look for a Police Man, com’g back I saw the Mo’y Box behind the Cask – a Police man – The Pris’r denied hav’g taken the Box I remember a Batter’d ½ Crown – I was present when Constable searched the Pris’r – The half Crown was so remarkable that I co’d swear to it among many others – I only know it now from the Mark I put on it at the Police Office.

X’ex’d

Publican – There were a Dozen person(s) in the House the night I lost the Mo’y – There were some of his own Comp’y with him – Tap was the room where the Mo’y Box was – Tap & Bar all in one Room – I positively know the Box stood on the Cask at 10 oclock in the Even’g – Mrs. Halfpenny was inside the Room & I at the Door & she co’d see the whole of the people in the Bar – Pris’r had a few glasses of Pepermint – Three in Comp’y with Pris’r – he might have changed 2 half Crowns – I took the ½ Crown in the Course of the Evening –

Tho’s Clue Sworn

I was a Constable I was sent for by last Wit’s in consequence of Informat’n . I searched the Pris’r. I found on him 6-5 pounds in Silver & a 1 pound note – 1 pound note in his Snuff Box Pris’r had Mo’y in different Pockets – I found a remarkable ½ Crown on the Pris’r – half Crown very much batter’d Identifies it – I marked it – The Pris’r said he sh’d have had in his possession 17 pounds 15s in Silver -

Xex’d

I ex’d Pris’r on Friday night the 22’d of Jan’y 7 – ab’t 10 oclock in the Public House others stand’g beside him. The Pris’r said the Mo’y was his own –

Case

For Defence

Pris’r a labouring Man –

Mr Brewster

Defence Mo’y Pris’r’s own

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Guilty –

7 yrs Transportation

Commentary

Edward J Brewster defended Murphy.

Thomas Halfpenny had the William Tell public house in Collins Street ‘the Mark I put on it’ – Marks were put on property so that the particular item might later be identified as the item being referred to. For security reasons these marks were not further described.

‘Peppermint’ was used at this time to describe drinks containing the essential oil of peppermint; it was often mixed with various types of spirits.

‘For Defence’ - probably indicated that the prisoner made some unsworn statement.

In this Notebook the words ‘imprisoned 12 mths imprisoned hard labour’ are written in Willis’ hand but crossed out and ‘7 yrs transportation’ written above by Willis. My research indicates that such alterations often occurred in cases where the prisoner originally asserted his status was ‘Free’ and it later emerged that he was ‘Free by Servitude’

The CRB records that Murphy was F S.

Garryowen lists the stolen silver coins as 100 shillings, 100 sixpences and 50 half-crowns (Vol 1, p. 66)

This case is referred to in Port Phillip Gazette Wednesday 14 April 1841; Garryowen (above); Forde pp. 57-58; Mullaly, p. 573.

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Transcript of trial of John Drumgold for Larceny

Willis Note Book No 11 page 65

April 12 [1841]

John Drumgold – Larceny Plea Not Guilty

Ann Hayward – Sworn

I know the Pris’r – on the 29th of Jan’y. I saw the Pris’r in my own House betw’n 12 & 1 in the forenoon – he asked leave to set down a Bundle – He bro’t two shirts to Wash – he left his Bundle near the Entrance door on a Box – until as he said he went to the Jail – I saw it left there – After Pris’r went away I went to bed for ab’t an hour – When I got up I found the bundle gone – It was half an hour after Pris’r went before I went to bed – The bundle was on the Box when I went to bed – No one in the interval came into the House – He came the day after. I asked him to give me wh’t I had lost – I lost some Prop’y consist’g of part’ars (particulars) ment’d in Informat’n I asked the Pris’r for it the day after – he denied taking it – I sent for the Constable – Pris’r had some Keys I took one – He gave me up the other two – They were my Keys – My Box was open when I went to bed – The Keys were inside the Box – Pris’r took a Watch out of his Pocket – I said it was my Watch & he ran away – There was an old Seal of mine in the Pris’r’s Possession – The Watch was my Husb’ds

X’ex’d I know no other

Object of the Pris’r’s call’g than wh’t he said – to leave Shirts to wash – I laid down because I was poorly – The Watch & other Articles were in my House some in the Box I saw the Pris’r go away - I saw the Pris’r a 2’d time on the Friday – I cant positively swear as to the Ident’y of the Watch when I saw it in Pris’r’s hand – I snatched a key out of the Pris’r’s Hand – he never said anything he gave up the Keys The Pris’r was not sober the 2’d time I saw him –

John Swift – Sworn –

I know the Pris’r – I took him in Custody ab’t the End of Jan’y last – I saw Mrs Hayward on that day – She came to the Watch house & said her place had been robbed –

Mrs. Hayward recalled

I complained the day follow’g I discov’d the loss of the Prop’y – I took up the Pris’r ab’t 4 oclock the same day

X’d

I cant say the day I took the Pris’r I stood by when the Pris’r was searched – he was searched by Woodman The Watch House (keeper) There was nothing found on the Pris’r when searched belong’g to the Prosecutor –

X’ex per cur

I never charged any one else than the Pris’r with this theft –/

Cha’s Stuart – Sworn

Summon’g officer – I do not know Ja’s Campbell He is gone to sea I rejected the Claim to put in the Deposition of Campbell –

Presumption is
Guilty
7 yrs Transportation

Commentary

Willis requested Redmond Barry to conduct the defence.

‘Jail’ – This was a common spelling of ‘gaol’ ‘part’ars (particulars) ment’d in Informat’n’ – the detail of the stolen property would have been specified in the Information.

John Swift was a constable; James Woodman was the Watch house keeper ‘I rejected the Claim to put in the Deposition of Campbell’ – the depositions in this case have not survived but I suspect that James Campbell had been called as a defence witness during the committal proceedings and that Redmond Barry wanted to tender that deposition as evidence on the trial on the basis that the witness could not attend court to give evidence and for that purpose called Charles Stuart to prove the formalities but failed to prove them sufficiently and that Willis was noting that he was rejecting the attempt to use the deposition.

Before the sentence of 7 yrs Transportation the notes ‘Two years’ ‘12 mths impris hard labour' are written in Willis’ handwriting and crossed out.

In the CRB, Drumgold is recorded as FS.

The trial is reported in Port Phillip Gazette Wednesday 14 April 1841.

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Transcript of trial of James Browne for Larceny

Willis Note Book No 11, page 69

April 12th (1841)

James Browne Larceny by Serv’t 2’d Common Larceny

Tho’s Strode Sworn

I am in Pt’ship with Mr Arden Printers & Publishers – Jan’y 27th . on the follow’g day I missed prop’y – I had property in my office on the 27th of Jan’y I missed it on the follow’g day – I am sure the Cash Box was there I saw the Mo’y in the Box the previous day. Ab’t 16 pounds – diff’t descrip’n of Mo’y – Pris’r was in my Employm’t - I ascertained where the Pris’r was lodging & obt’d a Search Warr’t – Pris’r was afterw’ds taken to the Police Office – The Pris’r was subsequently researched & a Gold Pencil which I know to be Mr Arden’s was found in Pris’r’s possession – Identifies Box & Prop’y as Partnership Prop’y.

X’ex’d

Left the Office ab’t 7. Two lads sleep’g on the Pre’s(premises), they had access to the Office – they were Apprentices – Mr Arden used to leave the Pencil case in the Office – I don’t know the intention with which the Pencil Case was taken –

Fred’k Carman Sworn –

Constable in Jan’y last – I saw the Pris’r at the Bar then at the Watch-house – I was induced to search the Pris’r I found a Gold Pencil Case on his person – After find’g pencil, went to some Casks & found a Hair Chain & Gold Seals – after that the Watch House Keeper & Mr Strode & made a Search for the Cash Box in the Burial Gro’d I accomp’d them there – I went again & found two Cash Boxes in possess’n of Woodman

X’ex’d

I only know ab’t the Pencil Case & seeing the two Cash Boxes in possession of Pris’r at Burial Gro’d – Mr Strode & Mr Stephen were there

Ja’s Woodman Sworn

Watchhouse Keeper – know Pris’r saw him at Watchhouse ab’t the End of Jan’y or begin’g of Feb’y – After the Pencil Case was taken from Pris’r – he said he wished he had some person to confide in, I then told him that after the Pencil Case was found & that he admitted he had taken the Pencil, & I then said he had better tell all about it – Hav’g heard something from the Pris’r I went to Messrs Arden & Strode – from informat’n received I found Hair Chain & Seals in a Bottle Hogshead – thence I went to the Burial Gro’d with Strode Mr Stephen & the last Wit’s - & after search’g I found two Cash Boxes – I went there from something I heard from Pris’r there wer(e) two Cash Boxes the one produced is one of them – Mr Stephen open’d the Box prod’d in my presence -

X’ex’d

I was present when the Pris’r was searched at the Watch House – the 2’d Search – the Pencil Case alone was found on him

John Stephen Sworn

I am connected with Messrs Arden & Strode – I know the Pris’r I went to the Watch House – The Pris’r called me & wished to speak to me – I cautioned him – He said he had already confessed to the Watch House keeper & wished to confess to me – Pris’r then told me the whole Circ’s & in consequence & I went to the burial Gro’d & the whole Prop’y (Prod’d Box) Cash Box of the Office was found –

X’ex’d

Mr Barry

Verdict – Guilty –
14 yrs Transportation
(2nd figure not clear, also what seems to be “Includ’g hard labour” crossed out).

Commentary

Redmond Barry appeared for the defence.

Thomas Strode and George Arden were the publishers of the Port Phillip Gazette. John Stephen was assistant editor of the Port Phillip Gazette. The office was in Collins St.

‘hair chain of gold seals’ – during this period human hair, usually from deceased persons was woven into chains etc., and worn as a memorial. Seals were also worn as memorials or so that they were available if a document had to be sealed The Burial Ground was then part of the Flagstaff Gardens in the area where the Victoria Market now is ‘I cautioned him’ – i.e. warned him that he did not have to say anything and that anything he did say might be given in evidence in court. Admissions against interest were not admissible in evidence unless voluntary (see Mullaly pp 178-80).

Reported in Port Phillip Gazette Saturday 30 January 1841; Wednesday 14 April 1841. The prisoner is referred to as a ‘lad’. The CRB records the conviction as being ‘larceny property of his master’ ie the 1st count; Browne’s status is recorded as ‘N of VDL’ ie born in VDL.

The remainder of page 73 and all of page 74 blank.

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Transcript of trial of Henry Watson for Assault

Willis Note Book No 11, page 75

Henry Watson – Assault with Intent to abuse a Child under 10 –
2’d Common Assault

Imogene Liardet Sworn

I live on the Beach – I know the Pris’r Harry Watson – he lived in my Papa’s House – There is a Stable or Harness Room at my father’s House – The Pris’r took me into the Stable after the time of the Regatta & pulled up my Petticoats, put his in mine – his – Cockadoodle – he lay on my person – he was long on me ab’t half an hour – after that he took me out of the Stable I told Mama wh’t had happened – When I went out I told Mama directly –

X’ex’d

Put his in mine (points ¾ of an Inch) Papa & Mama told me wh’t questions wo’d be put & wh’t Answers I was to make – I was told to tell the truth – I remember going before a Magistrate – I told him they went to Hell – He told me to say so –knew not. Did not appear on subsequ’t Examinat’n to be Sufficiently impressed with the nature & Solemnity of an Oath as to make her Evidence Admissible.

Acquitted

Commentary

Willis requested Archibald Cunninghame to conduct the defence The regatta was on 12 January 1841 (Garryowen, p. 742)

‘I told Mama wh’t had happened’ - evidence of recent complaint was admissible in sexual offence cases.

The issue of the competence of a child to be sworn was normally investigated before the child was sworn. In this case it could well have been that Croke was informed, in advance, by the Magistrate who had conducted the committal proceedings that he considered she was competent. Indeed, her well-known parents may also have expressed that view. Wilbraham Frederick Elvyn Liardet conducted a public house on the beachfront at Port Melbourne (see Mullaly, passim, as to the law relating to competence to be sworn).

Willis, in dismissing the accused from the dock said that from the evidence he was morally certain of the guilt of accused and that had the girl been older and able to give evidence he would have been convicted and sentenced to death. The case is reported in the Port Phillip Gazette 14 April 1841 but “The details of this case are of too disgusting a nature for publication”.

The remainder of page 76 is blank.

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Transcript of trial of William Wayland for Larceny

Willis Note Book No 11, page 77

April 12 (1841)

Wm. Wayland – Larceny – Pocket Book & Notes Plea
Not Guilty

Dan’l Maloney Sworn

I live at the Merri Creek – I recollect ab’t 2 or 3 months – I had a double Note – 2 single Notes – 15 pounds Bill on Mr Fletcher & my Cert’e of Freedom in a Pocket Book – I went after Dinner from the Cook Shop to the Public House – Pris’r followed me – I took my Pocket Book out to pay for a Pot of ale & Pris’r snatched from me – I ran after him – I met with Constable Wagoner – I went to Mr Fletcher & stopped the Check – we met the Pris’r – The Constable took Pris’r to a Public House & searched him & I saw my Prop’y. Describes a two Pound Note I marked it before I lost the Mo’y I saw the Note taken from the Pris’r The Note is mine –

X’ex’d

I never spoke to the Pris’r before that day –

Jacob Wagoner Sworn –

I know the Pris’r – I took in charge 23’d of Jan’y for robbery from information I received from last Wit’s. I searched him & found a 2 pound Note & 2 ones – The No. 6110 – The Prosecut’r gave me the No. of the Note before I took Pris’r he told me the No. was 6110

X’ex’d

Maloney was capable of taking care of himself –

Ja’s Woodman

Was Watchhouse Keeper – I had the Pris’r at the Bar in my Custody – Found an old Pocket Book – Identifies it.

Maloney recalled

I swear the Pocket Book produced was the one snatched –

Defence

Guilty
Two(crossed out) 7 years
“Impris’t hard labour” crossed out and replaced by “Transportation”

Commentary

Archibald Cunninghame appeared for the accused.

As a precaution, some people then recorded the official number on their bank notes.

In the CRB, Wayland’s status is recorded as ‘Free’.

The remainder of p. 79 and all of p. 80 blank.

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Transcript of trial of Walter William Maxwell for Larceny

Willis Note Book No 11, page 81

April 16 1841

Walter Wm. Maxwell Larceny
Plea Not Guilty – Mr Croke - gave it in Charge to him –

Wm Shaw Sworn

Constable – I have seen the Pris’r before –

Acquitted

– The above is all that is on p. 81.

Commentary

Maxwell had been committed for trial in Geelong on 22 February 1841 on a charge of stealing some items from a bundle of clothing which John Cotter had given him to look after. The property was discovered to be missing after Maxwell was taken into custody on some other unknown charge. Shaw was the constable who got the bundle from Mack’s public house in Geelong at Maxwell’s request. (VPRS 109 Unit 1, p. 333).

The report in the Port Phillip Herald of 27 April 1841 indicates that Maxwell was acquitted by direction as no ‘animus furandi’ could be proved, ie there was no evidence that Maxwell had formed any intent to steal the property. The fact that there is no indication that Cotter was called as a witness on the trial supports this direction.

Page 82 is blank.

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Transcript of trial of William Gammill for Assault with intent

Willis Note Book No 11, page 83

April 12 ,1841

Wm Ganmill 1st Assault with intent
2 common assault

Rich’d Bell Sworn

I live at Mr. Roadknight’s – I have been three mo’s in his Service – I live up at Mr. R’s Station – Shepherd – I sleep in a Box – I recollect the 3’d or 4th of March – ab’t 6 days before I applied for a Warr’t I saw the Pris’r at my Box – Pris’r came inside the Box – describes the Attack – nothing on but his Trowsers. Put his Private Parts only between my legs – I told wh’t happened – I got a Warr’t

X’d

Per Juryman

Assault 1st of March – next Monday I compl’d to Master – on Tuesday I compl’d to two Men – he came after I had ment’d it to the Men – I never had any quarrel

Tho’s Roadknight Sworn

I know last Wit’s he is in my father’s Serv ice – ab’t the 9th of March he compl’d of Pris’r

X’ex’d

I was at the Station on Tuesday – on Thursday – Friday – Bell made no Compl’t on Friday he made no Compl’t then – On Sunday the 7th Bell Comp’d 1st of March Pris’r & Bell were placed together on the Station – Box not more than ½ a Mile –

Defence

Walker – not ment’d to Master – Always conducted himself well
Guilty – 2 yrs hard labour

Commentary

The date ‘April 12 – 1841’ is a mistake. The CRB records that this trial was held on 26 April 1841 and that the name of the prisoner was William Gemmil. His status was recorded as ‘FS’.

The charge was Assault with intent to commit an unnatural offence.

The committal proceedings in this case had been held in Geelong on 12 March 1841, When giving evidence in those proceedings, Bell had described the ‘box’ as a ‘sentry box’. The depositions record that Bell was ‘questioned by Gimmel – could anyone get into the box without your consent
A – yes
Q – have you not a musket with you and could you not have shot me if I attempted such a thing A – I would have shot you if I had known the law about it’. (These depositions are recorded in VPRS 109 Unit 1, p. 537).

Members of the jury were entitled to ask questions of any witness.

It is difficult to interpret the notes after ‘Defence. ‘Walker’ cannot be identified as a member of the legal profession but the words ‘not ment’d to Master’ are indicative of a typical comment by defence counsel in this period in sexual cases. The law then was that the jury was entitled to take into account, against the credibility of the complainant, that there was some delay before any complaint was made. So too, the words ‘Always conducted himself well’ are typical comment by defence counsel, implying that no one else had complained about the prisoner. On the other hand, the words after ‘Walker’ might have been a summary of what a character witness was saying, but the word ‘sworn’ does not appear after ‘Walker’.

The sentences of imprisonment imposed in this case and in those of Wallen and Agnew, in April 1941, rather than a sentence that the prisoner ‘work in irons’ led the Governor, Gipps, to write to La Trobe about the possibility that the Executive might change the sentences to ‘relieve our Gaols as much as possible’ (see Shaw: G-LT Corr pp.74-5).

There is an illustration of a watch box in M. Kiddle: Men of Yesterday, p. 63. Some of these newspaper reports are on Macquarie Website (Control & Click to follow link)

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Transcript of trial of Dennis Hogan

Willis Note Book No 11, page 85

April 26, 1841

Dennis Hogan – Horsestealing

David Patrick Sworn

accord’g to the Scotch form – I had a Brown Gelding in my possess’n – ab’t the 15th of Dec’r last – branded P on the near Shoulder – I turned him over the River loose I was in the habit of seeing him occasionally – ab’t 2 Mo’s ago – I last saw him sometime in Feb’y – on the 9th of April last I went to Ewart to ask for him – I went to Mr Sidebottom’s Station & found my Horse in the yard – I saw Isaac Allen there – I have no knowledge of the Pris’r I have no doubt the Horse I saw in Sidebottom’s Stable is my Prop’y & the same that was turned out –

X’ex’d

The Horse might have strayed – a new Brand has been placed on the Horse immediately under the P - a fresh Brand

Isaac Allen Sworn

I have been liv’g at Mr. Morrisons I recollect the 24 of Feb’y – I saw the Pris’r at Mr Thornwell’s stat’n – ab’t 9 Miles from Mr Mollison – Pris’r bro’t a Horse there the day before a Dark Bay – a Gelding I asked Pris’r if the Horse was for Sale Pris’r asked 60 pounds for him – I p’d him 55 pounds 6s & 4d – I bought him for myself – I kept him. When I came in Melbourne in consequence of Rep’s? I asked the Pris’r if the Horse was Stolen he say’g No - Pris’r when I was buy’g him said he bo’t him by chance for 30 pounds

Per Cur

The Horse when I bo’t him was very low – When I bo’t him he was brand’d P – I sold him to Mr Kerr –

X’ex’d

Pris’r said he was going to Mr. Wards Thornwall’s Stat’n 60 or 70 – Miles – I sold him for 65 pounds – I had him –

Henry Baker – Sworn –

In Feb’y last I was Work’g near Mollisons I saw Allen bo’t a Horse of Pris’r – Dark Bay Horse – saw him since – says he bo’t him –

X’ex’d

Identifies the Horse at Police office as the one so sold – Pris’r says he bo’t the Horse in the Bush –

Case –
Defence
Guilty –
15 – yrs – Tr –

Commentary

Redmond Barry appeared for Hogan; he was instructed by Edward Sewell and his fee was £5-5-0 (Barry’s Notebook).

‘Sworn accord’g to the Scotch form’ – this involved that the witness held up his right hand while the oath was read rather than kissing the Bible (which was the English form).

‘I turned him over the River loose’ – at this time, residents in Melbourne commonly turned out their stock on the south side of the Yarra River.

At this time, William Sidebottom had the Golden Fleece Hotel in Bourke St and it could be that Patrick was saying that he saw the horse in the yard or stables there.

Allen does not give sufficient detail to allow of precise location of the stations to which he is referring but they could be in the Malmsbury-Pyalong area (Billis).

‘The Horse when I bo’t him was very low’ – Allen is indicating that the horse was not in a healthy condition.

‘Identifies the Horse at Police office as the one so sold’ – it was then common practice to bring animals that would be referred to in evidence to the courthouse and tether them outside. Willis was then sitting in what was commonly known as the ‘Police office’.

The imposition of the then maximum sentence for horse stealing is to be considered in the circumstances that, after Hogan was convicted, Croke told Willis that the crime was frequent in the district so Willis said the sentence was to deter (Port Phillip Patriot 29 April 1841).

The CRB records Hogan’s status as ‘Born in Colony’.

He was sent to Sydney to serve his sentence (VPRS Series 19, Unit 14).

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Transcript of trial of William Alexander Wallen for Assault

Willis Note Book No 11, page 88

April 26 1841

Wm. Alex’r Wallen - Not Guilty –

Elizabeth Ginman - Sworn

I live at Geelong – I know the Pris’r I saw him on the road to Ashby village ab’t 6 weeks or two months ago – I was wait’g for my Mother – This Man came up & asked me wh’t I was waiting for He wished me to go off the Road with him – he attempted to take hold of me – within reach – he pulled a pistol out of his Pocket he had it in his hand – said he wo’d let me know wh’t he was going to do with it – he did not raise the pistol – My mother came up, & two females. The Pris’r went straight on the Road – We went for a constable –

X’ex’d

Very Drunk -

Mary Watson Sworn

I live near Ashby – I know the last Wit’s my Daughter – My Daughter lit (?) on this Man – I saw him attempt to catch her – She s’d he wanted to blow her brains out because she wo’d not go into the bush with –

X’ex’d

John Guest I live in Geelong – I know the Pris’r I took him into Custody on the charge of be’g Drunk & assault’g Ginman

Guilty
1 yrs Impris’t & hard labour -

Commentary

Ashby Village, on the western side of Geelong towards Corio, was named after Ashby-de-la-Zouch in Leicestershire, England.

Port Phillip Patriot of 29 April 1841 reports Ginman’s evidence of the prisoner making ‘unbecoming proposals’ to her.

The evidence, at the committal proceedings in Geelong, reveals that Elizabeth was married to William Ginman who assisted Constable Guest to apprehend Wallen and he found the loaded pistol (VPRS 109, Unit 1 p. 335).

The threat to ‘blow her (his) brains out’ was quite common in the 1840s.

Wallen’s status is recorded as FS in the CRB.

In January 1842, the Executive Council in Sydney reduced Wallen’s sentence to 3 months(VPRS Series 19 Unit 23; VPRS 16 Unit 2 Page 414).

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Transcript of trial of John McCarthy alias John Kiddy alias John Davis – Horse Stealing

Willis Note Book No 11, page 90

April 26, 1841

John McCarty – al’s Kiddy– al’s Davy –
Steal’g a Mare

Joseph G Mack – Sworn – [crossed out]

Ewart bro’t the mare in & was well –

About a Month ago Mare found in possession of Pris’r. Pris’r said he was proprietor of Mare – That she was stolen from Murrumbidgee – told an’r story – a Man desired to bring her in

Joseph G Mack –

I live at Geelong – I only know the Pris’r by seeing him at the Police office I bo’t a Mare from Mr. Day – Her near hind leg was injured – She appeared to have been fired – She might have had a brand but I am not aware of it – The Mare was shipped was that I saw with Mr Wright – Positive as to the Identity of the Mare – more than two hundred yards off I said she was my Mare –

X’ex’d

I ex’d the Mare at the Police office. I had seen the Mare 50 times before I purchased her only in my possession a few days afterw’ds W. one shoulder & anchor on another – I have bro’t over Horses 3 times – Bay Mare – When I arrived at Melbourne I was sent for to the Police office & saw her com’g – my mind was prepared to see her because orders were given that she sho’d be sent for – Advertized the Mare as hav’g an Enlargem’t 6 mo’s since she was advertised. 4 Months after she was lost that she was Advertized –

Per Cur

I sho’d have known the Mare anywhere –

Wm. Wright - Sworn

Chief Constable – I know Pris’r I rece’d a Mare from last Wit’s & had her in the Stable some time – I turned her into the Gov’t Paddock W on the off Shoulder no other brand when she came over - Firing Marks very conspicuous – When I last saw her she had an Anchor on the near Shoulder – The Anchor appeared to have been put on some time – Pris’r said he was brand’d with an Anchor – I take upon myself to swear that there was no other brand on the Mare than the W when she came to me – I ex’d her & ascert’d that fact. W on off Anchor(drawn) on near Shoulder – I never rode her in my life. I ex’d her 1st in Shaw’s Stables – The Pris’r said he had lost her at the Murrumbidgee & an’r horse & 100 pounds taken by some bush Rangers & that she broke her leg – he told me who the mare was fired by - he said his father bred her – the Pris’r put up at Lamb’s Golden Cross – he said it was 2 yrs since he lost her – I show’d him the Rec’t – I saw pris’r on the Mare the day before, I was as near to him as to me Very remarkable leg – I remarked that he had got a Nice Mare & her leg was swollen & the Anchor on the near to me– He told me how he had recovered her he said he had given some men 30s for recov’g the mare for ab’t an Hour or two – Subsequently he called me into the Watch House & said he was a foolish fellow to be let into it by others, that he never saw the Mare in his life before

X’ex’d

Pris’r Drunk the day before – Partly drunk the day after – perfectly sober when he made the confession

Case –

Defence

Cha’s Neale Farrier

Never knew him till I saw him at a Public House – Kelty was there – he K asked me to go out & look for a Colt of his – Pris’r went with me. The Mare was claimed by the Pris’r he was a little Worse for liquor – he described her by the Brand of an Anchor on the Near Shoulder & swelling on near hind fetlock – Pris’r said she was fired by Galvin hav’g hurt her leg in the Murrumbidgee

X’d

Only knew the Pris’r the other day – Pris’r said it was his Mare – he never told me otherwise – he put her in my Stable that night – from 5 or 6 in the Ev’g to 6 or 7 next Morn’g Sober when he took the Mare away next Morn’g

Guilty –
Tr 15 – yrs –

Commentary

‘John McCarty – al’s Kiddy– al’s Davy’

– the Calendar listing the cases of persons in custody must have contained McCarthy’s aliases ie Kiddy and Davy.

These aliases also appear in the CRB where McCarthy’s status is given as FS. He was sent to Sydney to serve his sentence.

Redmond Barry, instructed by Edward Sewell, defended the prisoner at both the committal (Fee £3-3-0) and the trial (Fee £5-5-0). In his notes about this case Barry has recorded that the proof needed for stealing any kind of animal alluded to in 7 & 8 Geo IV c29 s 25 (the relevant legislation) is

  1. to show the ownership of the animal
  2. that prisoner seen with it in his possession.

The description of the beast should be distinctly verified and sworn to by owner and prisoner must account for this horse. The notes after ‘

Joseph G Mack – Sworn – crossed out’ are probably notes of James Croke’s opening address to the jury.

‘She appeared to have been fired’ – it was common practice to attempt to deal with an injury to a horse’s limb by applying a hot iron to the affected part. ‘advertized’ – it was common for stock owners to advertise the loss of stock in the local newspapers – sometimes offering a reward, it must be remembered that at a time when horses were the common form of transport, most adult men would have understood words used to describe a horse’s condition and explanations would not have been needed in court.

‘Kelty’ – not further identified.

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Transcript of trial of Henry Agnew for Assault

Willis Note Book No 11, page 95

April 26 1841

H’y Agnew – Assault –

Sarah Chaunt – Sworn

I know the Pris’r I lived ab’t a fortnight as a Serv’t at his House – I left ab’t the begin’g of this Month from ill usuage – because I wo’d not sign a Paper to live there – I wo’d not live there it was an improper House – He knocked me down – kicked me in the face & side - I got out into the Street –

Pris’r

It was a push

Dr. Cussen M.D.

Ab’t 3 weeks ago I saw last Wit’s – called in to a Woman ly’g wounded in the Watch House – Descr’bes the Wounds – Side – I think she exaggerated her Case

Ann Edward - Sworn

I lived as a Serv’t there – I saw you give her a Shove against the Sofa –

Guilty –
6 Months Imprisonm’t & a Fine of 50
pounds & to be fur’r Impris’d till fine p’d.

Commentary

The Port Phillip Gazette of Saturday April 10 1841 reported:

“Brutal Assault – on Monday night the neighbourhood of Little Bourke St was alarmed by the shrieks of murder proceeding from a female who ran for shelter into Mr Clark’s Italian Warehouse. It appears that this woman whose name is Sarah Chant arrived by the Fergusson and was enticed into the service of a man named Harry Agnew well known at Van Deiman’s Land where he obtained a free pardon we believe for shooting a bushranger who attacked the premises of his master. The unfortunate woman alluded to was required by Agnew to sign articles of agreement for a period of three months, the short time for which she had engaged being expired, - but finding that the character of the house was disreputable in the extreme, she refused to sign this paper; upon which the ruffian struck her a dreadful blow in the temple, and repeated his violence by kicking her when on the ground, she having been knocked down by the blow he had given. The case was heard on Wednesday last at the Police Office and the Bench committed this wretch (to whom the mercy of the Crown has proved of little benefit apparently) for trial before the Supreme Court, when he will without doubt receive that punishment which such brutality deserves.”

Agnew defended himself.

The words ‘It was a push’ after the word ‘Pris’r’ indicate that Willis was recording some detail of an unsworn statement made by the prisoner.

Ann Edward and Dr Cussen were defence witnesses.

In reporting the evidence in this case, the Port Phillip Herald of 27 April 1841 reported that Henry Agnew – ‘ran a brothel’.

The CRB records Agnew’s status as FS.

In November 1841 the fine was remitted and Agnew was released (VPRS Series 19 Unit 22).

On 15 September 1842, Agnew was sentenced, by Willis, to 7 years transportation for perjury (see Willis Note Book No 14, p. 33).

Some of these newspaper reports are on Macquarie Website (Control & Click to follow link R. v. Agnew)

The remainder of page 96 is blank.

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Transcript of trial of William Riley for Larceny

Willis Note Book No 11, page 97

April 26, 1841 Wm

Riley – Stealing a Watch

W F E Liardet – Sworn

I live at the Beach I keep an Hotel – I know Mrs. Munro – she was there – I saw a Gold Watch & Seals. I saw the Watch & Seals – I saw the Watch in Mrs. Munro’s possession two days prior to its loss – lost 18 or 19th of Jan’y last – Pris’r was ostler in my Service – Pris’r was ab’t the Pre’s when Watch was lost – Pris’r left my service a short time after the Robbery – I saw it in the possession of Lee the Constable I knew the Seals – I can swear that one of the Seals was that in which Mrs. Munro once placed in my hands – Can’t say as to watch –

X’ex’d

From my descript’n of the Watch Pris’r was apprehend’d.

Jame Munro. Sworn

I was stay’g at the Beach 18 of Jan’y at Mr Liardet’s – I lost a Gold Watch & Seals there – Identifies the Watch

X’ex’d

Tho’s Lee - Sworn

Constable – found the Watch on Pris’r who said it was his own that he found the Watch on the beach

Guilty
Tr. 7 yrs

Paraphernalia

Commentary

An ‘ostler’ – is a person employed to groom horses in a stable.

‘Pre’s’ - is a premises.

‘Jame Munro

Sworn’ - presumably this was Mr. James Munro.

“Paraphernalia” – in the 1840s the general law was that the property of a married couple belonged to the male; however, a married woman owned her Paraphernalia – personal items, frequently jewellery. The fact that Willis noted “Paraphernalia” in relation to this case indicates to me that the Information may have alleged that the stolen property belonged to Mr Munro and he swore to his ownership but Willis might have wondered whether it was legally Paraphernalia.

The CRB records Riley’s status as “Free”. He was sent to Sydney to serve his sentence (VPRS Series 19, Unit 14).

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Transcript of trial of Alexander Wilson for Forgery

Willis Note Book No 11, page 99

April 26,1841

Alex’r Wilson – Forgery

Ja’s Lake Sworn

I live in Flinders Lane I saw him on the Saturday before Cheque drawn by me – I put Daniel Dudley to it he ans’d to that name – the Mark is that of Pris’r Wilson – He got 20 pounds for this Cheque – from the Union Bank – I saw him receive the Cheque –

Nigel Gressley Sworn

Paid Mo’y for Cheque – prod’d – Rec’t - produced – Deposit Rec’t - Received Mo’y. Highett & Partner

X’ex’d

Wm. Wright. Pris’rs name Alex’r Wilson – never knew him as Dudley – Verdict - Guilty. Death Record’d –

Commentary

Wilson was undefended. I interpret Willis’ notes as meaning that James Lake, who was the publican at the Ship Inn in Little Flinders St, was owed £20 by Wilson who claimed to be Daniel Dudley. Wilson got Lake to write out a cheque drawn on the Union Bank and then Wilson signed by mark as Daniel Dudley. A Daniel Dudley must have had an account with the Union Bank where Nigel Gressley worked and the cheque was honoured but later discovered to be a forgery.

The CRB records Wilson as FS.

The death penalty was no longer the penalty for forgery in England after legislation in 1837 but this legislation had not been adopted in NSW. Other Legislation allowed a Judge to ‘record’ rather than ‘pass’ the death sentence if the Judge was of the view that the sentence should be commuted to some lesser sentence. In this case, the CRB records ‘Commutation recommended by Judge – to be transported for life – to Norfolk Island’.

Wilson was sent to Sydney (VPRS Series 19, Unit 14).

The remainder of page 100 is blank.

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Transcript of trial of John Paine for Murder

Willis Note Book No 11, page 101

Crim’l Session

May 15, 1841

John Paine – Murder

Mr Croke – Pris’r Serv’t of Mr Henty – Dec’d said “we were both in fault”

Cornelius Miller - Sworn

I am a Serv’t of Mr Henty – I know the Pris’r. I recollect 30th March1840 Pris’r then in Mr H’s Service – dece’d McKenzie was also – he is dead – John Paine & McKenzie came into Supper on the 30th March 1840 in the dusk of the Even’g – They had some Words ab’t the Rum. McKenzie struck Paine in the face & stagger’d him – then Paine struck him with the Knife which was in his hand immediately -

X

John Henty Sworn

I recollect 30th of March 1840 I had a serv’t named McKenzie & Pris’r then in my Service – In the Ev’g of that day Pris’r & an’r man came to inform me that the Pris’r had stabbed McKenzie – I went to see him & found him Wounded – I asked dece’d who is in fault? Dece’d answered “We are both in fault” – I sent for a Surgeon – Mr Byass; he came on the 1st of April- on the 31st of March McKenzie died –

Lovell Byass Sworn

I am a Surgeon – I saw the Pris’r at Mr Henty’s Station on the 31st of March I was called to visit a Patient at Mr Henty’s Station, I went – I found the Patient dead – I made a Post Mortem examination – Incised Wound on the left side of the Chest betw’n 5th & 6th Rib. Penetrated to the ventricle of the Heart – The Wound in my opin’n caused Death –

Case –
Per jury
No previous Quarrel –

Mr Cunningham

Verdict Guilty
Recommen’d to mercy –
24 Hours Impris’t

Commentary

Archibald Cunninghame defended Paine (the name is given as ‘Faine’ in some documents.

‘Lovell Byass’ is sometimes named as ‘Lovell Byers’ in other cases.

In his address to the jury, Cunninghame referred to the blow suffered by Paine and that his response was ‘involuntary’ and therefore it was excusable homicide. Willis charged the jury that there was sufficient evidence to warrant a conviction (Port Phillip Herald, 18 May 1841).

At back of this Book 11 there was a folded sheet of quarto sized paper which contains notes relating to some of cases in this book. This document is now in Box 55.

‘John Paine – murder – some depositions taken in absence of prisoner. Deceased said we are both in fault – Paine examined - Arch 350, 351, 352, Roscoe 558 607’.

The depositions in this case have not survived but the words ‘some depositions taken in absence of prisoner’ indicate that Willis was concerned with some defects in the conduct of the committal. The words ‘Paine examined’ are explicable in the light of other contemporary documents. George Augustus Robinson’s journal for Wednesday 26 May 1841 records that he met Dr [blank] who had just returned from Melbourne. He told Robinson that in the case of a man tried for stabbing a fellow servant, committed by Seivwright, the judge censured Seivwright for questioning the man whether he was guilty or not – ‘which the magistrate ought not to have done’. Robinson’s journal for Saturday 29 May 1841 records that Smith, constable at Portland Bay, told him the same thing and added that the stabbing was at Henty’s station.

Charles Seivwright was an Assistant Protector of Aborigines and a Justice of the Peace. This material suggests that Seivwright had, illegally, examined Paine on oath at the committal as to the circumstances of McKenzie’s death (see ‘Arch 350, 351, 352, Roscoe 558 607’ are references to standard legal textbooks, Archbold: Criminal Pleading and Evidence and Roscoe: Evidence).

The CRB records that the prisoner’s name was ‘Faine’ and that the conviction was for Manslaughter – such an alternative verdict was usually open where Murder was charged in the Information. The short sentence of 24 hours imprisonment for this Manslaughter is explicable. The incident had occurred on 30 March 1840 and one would have expected the committal proceedings to have taken place shortly thereafter. In 1840, murder trials had to be held in Sydney and Paine was send there as were the depositions. It would seem from correspondence between Plunkett, the Attorney General, and Croke, in February 1841, that Paine’s presence in custody in Sydney was unknown to the senior authorities there until after Willis had been appointed as Resident judge in Melbourne. (VPRS Series 21 Unit 1) In sentencing Paine, Willis, remarking upon the long period of imprisonment which the prisoner had undergone, sentenced him to a further detention of 24 hours in the gaol (Port Phillip Gazette, 19 May 1841).

The remainder of page 103 is blank.

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Transcript of trial of Thomas Leahy for Murder

Willis Note Book No 11, page 104

May 15, 1841

Tho’s Leahy – Murder
Plea Not Guilty

Edw’d Brown – (not forthcom’g)

John Horn a China Man Sworn by break’g a Plate – If I tell a lie I go all as same as Plate – I live at Portland Bay – I know Tom Leahy the Pris’r – He lived at Portland Bay. He stopped in my House – I knew his Wife – She lived in the House – She is dead – ab’t 8 moons ago – she was then living – now dead – I saw no dispute betw’n her & her husb’d - I see them a long time make a quarrel – I did nothing to T. Leahy that day – I was working outside the House that day – I stopped. I heard a Noise I went into the House when I heard a Noise He had a Bayonet – a Gun Pin in his Hand – I wo’d know it again. That is it – produced – Leahy had that in his Hand – His Wife staid in the House, when she got the Bayonet she went outside the House – I put him outside the House – When she got the Bayonet she got a Wound – I saw him going so. (points out the manner in which the Bayonet was thrust) – The Pin went through her – (points to his breast).

Wit’s Ex’d thro’ Dr. Robt Martin – Sworn duly to interpret –

I live at Portland Bay – I know the Pris’r he lives next Cronin’s – Pris’r has a House of his own – he moved there – he first stopped at my House – his Wife is dead. Pris’r put a Bayonet into her breast I saw him do it – (points out how it was done) I put him outside the House & I saw the Wife run out of the back door & then she fell – She died some, seven or 8 Moons since – I do not know wh’t Pris’r stabbed her for – Pris’r came with his Wife into the House – ab’t 5 min’s after I heard some noise – I looked out of the Door & saw him strike her with the Bayonet – I have known them some 15 Moons – Wife was a Dress Maker a good hearted nice quiet Woman They lived along side the Public House – I never saw her in the Public House I saw her go along with her Husb’d that day. She was sober – He was sober – I never saw them fight only that day. When I put Pris’r outside, he threw the Bayonet away – I was in front of the House when I heard the noise – the Door was open – the first thing I saw was the Pris’r with the Bayonet in his hand – his Wife was by the Chimney side – I only saw the Bayonet thrust into her breast – I saw the Pris’r frequently Drunk – He was very sober that day.

X’ex’d

I saw her fall down & before long she was dead – I don’t know that this (The one produced) was the Bayonet but it was one of the same Pattern –

Lovell Byass Surgeon - Sworn

I reside at Portland – I know the Pris’r I saw him last at Portland betw’n 6 & 7 Mo’s ago. I recollect the 16th of Nov. last I was called in Professionally to visit Sarah Leahy – Ab’t 1 oclock on the 16th of Nov.r as I passed by the Chinamans House – (last Wits’s) I heard a Scream – I walked on – a man of the name of Brown came run’g to me – I went to the Chinaman’s Hut – at the back of the Hut I saw a Woman lying on Gro’d - & the Pris’r Leahy stand’d near her – I saw a Wound had been inflicted on the left side – describes the external appearance – after I rem’d(?remained) ab’t a Quarter of an hour the woman died – when I first ex’d the Wound & found the pulse scarcely perceptible I asked her – I merely called her name Mrs. Leahy. Pris’r when I arrived said he wo’d go & give himself up & went off immediately – He did give himself up – I first carried her into the House & af’r she died I inquired as to the Weapon – I got a Weapon from the Chinaman’s Mate – there were marks of blood on it. I can’t be mistaken as to the appearance – It was a Weapon similar to this (a Bayonet produced) the Wound was triangular such as wo’d be inflicted by such an Instrum’t as this (a Bayonet) I exam’d the body - on the left breast there was a triangular Wound penetrating into the right Ventricle of the heart – it was such a wound as wo’d produce death – I think it was the wound of which the Woman died – the Woman died ab’t 6 or 7 Months ago –

X’ex’d

I knew the Pris’r previously – he was sane – but very drunk – excessively drunk – incoherent – he co’d walk – he gave himself up – he did not say any thing ab’t the Woman hav’g first quarrell’d with him. The Woman was perfectly senseless when I arrived – I did nothing to her – No use in dressing the Wound – I performed the Post Mortem exam’n ab’t 1 ¼ hour(s) after death – I saw other marks beside the perforation No wound to occasion her death but this one – Mr Brewster – Guilty – Death (doubly underlined)

Commentary

At back of this book 11 there is a folded sheet of quarto sized paper which contains notes relating to some of cases in this book. The notes about Leahy’s case relate to taking evidence from a Chinaman and to the law relating to drunkenness. The notes refer to the textbooks and the reported cases which deal with these issues. This document is now in Box 55.

‘Edw’d Brown – (not forthcom’g)’. The depositions taken at the committal in this case have not survived but the references to Brown in the notes of Byass’ evidence indicate that Brown would have been called as a witness at those proceedings. Witnesses at committal proceedings entered into recognizances binding them to attend the trial. The report in the Port Phillip Gazette 19 May 1841 indicates that Brown’s recogizance was entreated by Willis. This was the common practice when a witness did not appear.

‘John Horn a China Man Sworn by break’g a Plate’. Willis tested Horn’s competence as a witness by questions: Was he a Christian? Did he know difference between truth and lie? The answers must have satisfied Willis who then asked how would he be examined in his own country to make sure he told the truth. The response was that he would break a saucer as a sign of what would be his fate if he did not tell the truth. The court officers could not find a saucer but brought a plate into court which Horn then broke. When the trial commenced, Leahy was not represented by counsel and Willis asked Edward Brewster, who was in court, to act for him. Brewster agreed and the case was stood down whilst he read the depositions.

When Horn first gave his evidence in English, Brewster took the point that Croke was asking leading questions which in effect amounted to putting the answers into the witness’ mouth. Willis J rejected this submission saying witness was ‘compos’ (i.e. of sound mind) and the evidence was given in a clear manner. However it was then decided that Horn should give his evidence through an interpreter and Dr Martin was sworn to interpret. Martin was well known in the District and had lived in China.

‘He had a Bayonet – a Gun Pin in his Hand’ – bayonets were sometimes called ‘gun pins’. The triangular bayonet was attached to a musket by a spring clip and was used by the British Army until the rifle replaced the musket.

Willis directed the jury that it was a case of murder or nothing and that drunkenness was not an excuse but an aggravation (Port Phillip Herald 18 May 1841). In cases in which the death sentence was passed the practice was that the trial judge would send notes of the evidence to the Executive Council in Sydney who would decide whether the sentence should be carried out or should be commuted. When Leahy’s case was before the Executive, Justice Burton raised doubts whether the Supreme Court could sit in two places, ie. Sydney and Melbourne, at the same time. Eventually the Full Court of the Supreme Court of NSW, including Burton, held it could. The executive then decided that Leahy should be executed. On 9 July 1841, Gipps directed that Leahy be executed on 15 August. Before this direction was received in Melbourne, La Trobe supported by Willis had, on 14 July, sent a strong recommendation for mercy on the basis of the delay – before the trial could be held and after the verdict. The Executive then decided to commute the sentence to transportation for life. This decision had to be and was ultimately confirmed in London (VPRS Series 19 Unit 16; VPRS Series 19, Unit 20; Behan pp. 66-8; Garryowen Vol 1 pp. 347-8; Shaw: G-LT Corr pp. 87, 89, 93; Mullaly pp. 158-9, 199, 252-3).

The rest of page 111 is blank.

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Transcript of trial of William McVea for Manslaughter

Willis Note Book No 11, page 112

May 15, 1841 Wm McVea – Murder (crossed out) Manslaughter Mr Croke Cart upset on Queens Highway – Negligence –

Rob’t Shaft – Sworn

Clerk & Manager to Messrs Henty I knew a Child named Henrietta Earles - she was stopp’g at Mr Henty’s Station ab’t Feb’y last – I made a Deposit’n before Mr Blair – I know the Pris’r he was in Mr Henty’s Service – we were occasionally together - I remember hav’g handed over Henrietta Earles to the care of Pris’r – She was ab’t 6 yrs old. I did so as the request of Mrs Henty that the Child might go to her Father who was ab’t 50 Miles off – I know the road – The Road is a difficult Road to pass – The Child appeared healthy – She moved with facility. I saw her when she was bro’t back dead the same day. Pris’r was perfectly sober when he went When he returned he appeared very strange ab’t the face – one face apparently swollen – a Sly Grog Shop on theRoad – I know it to be a sly Grog Shop – The Pris’r I sho’d say was not in liquor when he returned –

X’ex’d

Road was very bad, such a Road as a man co’d easily upset a Cart on Marks as if other Carts had driven ag’st Stumps – very easily to upset the Cart there – Cart a light spring Cart – High Wheeled Cart – very quiet Horse – Ruts & Holes & turns in the Road Pris’r one of our Overseers. Excellent Character. The Child was given into my charge ab’t 10 oclock in the Morn’g I gave her up to Pris’r 11 oclock. The Child was not five min’s with me – on the Road to Mt. Eckersley where a Cart was upset – Ab’t a Mile & ½ where a Cart was upset from Town – The Child was given to my charge ab’t 9 oclock just after breakfast – ab’t an hour aft’r I gave the Child in charge to the Pris’r – dur’g that hour the Child was walking ab’t the C’t with Mr. Henty’s Child’n – she was not in the Store at all – Mr Henty & his family all saw the Child & that the man was perfectly sober they took a great interest in the Child – Ab’t two hours after the Cart went the Child was bro’t back dead – I saw her immediately after. She looked very blue in the face – that is all I saw as tho she had been strangled – If there had been any laceration I must have seen it – The place where a Cart had been upset was ab’t a Mile from the Grog shop –

David Davis - Sworn

I reside at Portland Bay- I was in Cronin’s Employm’t. I recollect the Month of Jan’y, on the 28th I saw a Cart upset on the middle of the Road – a rough Road all along – one side lower than the other – all one Road it comes into the back of Mr Henty’s House – The Cart was Wheels upermost & the Horse down I saw the Pris’r stand’g between the Horses legs endeavouring to clear him from the Cart – From the Man I knew the Cart to be Mr. Henty’s – In three or four Min’s after I came up to him – the Man said “She was not hurt” – I asked wh’t he meant He said the Girl under the Cart, he thought she had got plenty of Room”. I makes ans’r that if the Child were not hurt she wo’d cry or make some Noise – He said no more ab’t the Child till we get the Horse clear – When we got the Horse clear we turned the cart over – I then saw the load of the Cart & the Child underneath the lying on things some on her & some under her. There was a part of a bag of flour on the Child’s face – ab’t 26lb of flour in the bag – The Child was lying on her back & the bag of flour on her face – The Cart was turned right upside down – The Horse was weak with struggling – I have often driven a team of bullocks on that Road – a person if steady & sober co’d not well upset there – Stump ab’t 10 yards from where the Cart was upset in the middle of the road The bark was off a tree just ag’st the place where the Cart was upset, if us’g common Care he co’d not well upset – a small Cart like that was likely to upset on the shelving side – it fell to the shelving side Pris’r was very drunk – Pris’r began to cry when he saw the Child was dead – I looked at the Child’s face & found her dead. The Child’s face appear’d black with strangling – Pris’rs face was black with dust –

X

Pris’r himself must have been very severely hurt by the Horse kick’g him I saw the Horse kick him sev’l times He was doing the best to get up the Cart. Three of us co’d scarcely get the Cart over – Pris’r co’d not have upset the Cart by his own strength – He co’d not release the Child from under the Cart with’t assistance Nearly all the things were underneath the ‘Child & the bag of flour over her face I saw nothing but the flour – The side of the Cart might have struck her –

Lovell Byass – Sworn

I am ? a Surgeon – I served an Apprenticeship of five yrs. I have been practising for five years – Practice considerable – Women & Children – I recollect the 28th of Jan’y last. I attend’d at the Police Office to inspect the body of Henrietta Earles – I saw it – Abraisons of the Skin on the face – on the temple – on the groin & below the Knees – the Colour of the face was dark – aris’g I sho’d think from some weight press’g on it – face livid. part of the Chest & the left arm was also livid – I ex’d the private parts of the Child on the follow’g day – The inner surface(s) of the labia majora were partly excoriated – the surface of the nympha was also excoriated – the membrane of the mouth of the vagina was ruptured & the radius presented a ragged appearance – I opened the body of the Child the urinary organs were in a healthy state as also the Uterus & the Vagina – Their appearances were quite fresh – a little very little inflamat’n – Had the death not been caused shortly aft’r the injury the appearance of the inflamat’n wo’d have been much greater – If the child had previously been afflicted she might move but not with’t some injury being detected in her gait – I saw Pris’r on the 29th of Jan’y at the Police Office – I ex’d the person of the Pris’r – he was suff’g under illness from injuries – I ex’d the Pris’rs Private parts – suppos’g him to have committed violation on the Child – I think it possible an Attempt – a Rupture such as I describe might I think be effected by attempt at sexual intercourse – I think there might have been suff’t to have caused the injury I have describ’d – I ex’d the Pris’r’s dress – I ex’d his Shirt I found one or two stains of blood – I found no excoriation on the Man’s part – there were blood stains on the childs under Garment – the Pris’r said he was subject to bloody discharges – I co’d discover no indication of it – I saw no injury whatever on his person –

X’ex’d

I found the blood Stains on the Pris’r’s shirt on the 28th of Jan’y – no Enlargem’t or appearance of Inflamat’n on Parts of Pris’r The acrid secretions of a Child like the dece’d might have occasioned the excoriation – I do not think that the ruptures were occasioned by acrid secretion or a bruise – it might have been –

Case for the Crown

Not Guilty

Commentary

Edward Brewster and Archibald Cunninghame appeared for the prisoner. The depositions in this case were taken before James Blair (the Magistrate at Portland) but have not survived and it could well be that McVea was committed for trial on a charge of Murder; in which case the Calendar would have listed the charge as Murder.

The defence argued that the Information contained 2 charges – rape and manslaughter and that Croke should be put to his election as to which charge should proceed. Willis ruled that one was introductory to the other and that only Manslaughter was charged. (Port Phillip Herald 18 May 1841) The Information was a narrative of the facts alleging the crime charged.

David Davis swore he ‘was in Cronin’s Employm’t’. a John Cronin was a publican in this area about this time; There a note in Redmond Barry’s notebook for 15 April 1841 re Reg v McVea as to the admissibility of the testimony of a ‘medical gentleman’ who was not qualified under 2 Vict No XXII (the NSW legislation relating to the registration of medical practitioners) ‘Ruled that the Act does not exclude the testimony of an unqualified person in S C but only goes to his credibility’. This reference could indicate that Barry had appeared at the committal and challenged Byass’ right to give evidence. It might also explain Willis’ notes of Byass’ evidence about his experience as a doctor.

Willis directed the jury that it was case of manslaughter by negligence when taking indecent liberties. If it was an accident the jury must acquit. (Port Phillip Herald ,18 May, 1841).

The angry way the words ‘Not Guilty’ are written indicates that Willis may not have agreed with this verdict. An ink blot on the opposite page indicates that Willis also angrily closed this notebook after recording the verdict.

Page 122 is blank.

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Transcript of trial of Michael Goodwin & Thomas Connock for Manslaughter

Willis Note Book No 11, page 123

May 17 1841
Michael Goodwin & Tho’s Connock
Manslaughter
Plea Not Guilty

Mr Croke

Dece’d Harlequin an aboriginal compl. ab’t 10 or 12 miles from the Goulburn River of a pain in his side Stabled at the Goulburn that Night. Dece’d compl’d of a pain in his Chest & in his side – from Goulburn went 20? Miles. & then arrived at Melbourne – Harlequin exhausted – debilitated – threw himself on the gro’d. The pressure of the Chain affected him very much – a person co’d with difficulty put his finger betw’n the chain & the Neck- in high fever – conveyed from Watchhouse to Hospital where he died –
Proceed to call Witn’s

Henry Rose Serg’t in M.P. Sworn

I am quarter’d at the Hume River was so in Nov.r last. I recollect the 29th of Nov.r last – Ab’t that time I went to Mr. Ewing’s Station to take a Black Man in charge I had a Warr’t – he was taken in charge before I came – delivered to me – I kept him at Mr Ewing’s Station that Night I think ab’t the 27 or 28th of No’r & the next Morn’g I fetched him down to my own Quarters the Barracks the distance was ab’t 12 or 14 Miles – Harlequin was the Black – I got him the black something to eat & warned two more troopers to proceed on – I handcuffed the Black – he was handcuffed on the journey from Ewing’s to my Quarters – I put a chain on him a small collar chain – used to tie a Horse with something similar to a dog chain. I put it round his neck the Cold Iron part – fastened by a small padlock – I gave him then in charge to two troopers Byers & Rowley – I ordered them to proceed on that Evening to Mr. Barber’s Station, the next day to proceed on to the Ovens River – the next stage was to Broken River. My directions only extend’d to the Broken River – Corp’l Kershaw had charge at the Broken River – Harlequin appeared to be in a very good state of Health when I first rece’d him – He walked well – Chain not – The Common Weight of a Horse chain is ab’t 1 lb or a little more ab’t 4 feet long - the one p’t was round the Man’s Neck, the other in the troopers hand – I went at ab’t 3 miles an hour – I put the Chain on at my Barracks – the padlock might have been a Quarter of a Pound Weight –

X’ex’d

I do consider the Chain absolutely necessary for the security of the Pris’r –

Re-ex’d

We in general secure White Pris’rs in the Way we can march them the best –

Per Jury -

It was betwixt the 27 & 29 of Nov.r It was a chain usually used for the Horse’s Neck – I do not recollect ever putt’g a chain of this kind round a White Man’s Neck. I have seen it done on Black Men before

Per Cur

Black Men are more difficult to March more liable to escape than White – The man made no Attempt to Escape before the chain was put on – I had no other mode of secur’g Harlequin that wo’d have been so easy to the Man himself. After I put the Chain on him I took the Handcuffs off –

Peter Byers Sworn

Private in the mounted Police I remember the Month of Nov’r last – the 29th I was quartered at the Hume River. Serg’t Rose was my superior officer – he was in charge – I took charge of a Pris’r on 29 or 30th of Nov’r from Serg’t Rose – Black Man named Harlequin – on receiv’g the Pris’r from the Serg’t I escorted the Pris’r to Mr Barber’s Stat’n – ab’t 10 Miles – The Road is easily travelled – we went at easy Walk ab’t 3 ½ miles an Hour – We reached Mr Barber’s on the 29th of Nov’r. We halted there that night – Harlequin was secured by a small strap round his Neck with a small Padlock – I think a Chain was attached to the Strap – I am sure it was a Strap – same as a Cloak Strap The Chain was between 3 & 4 feet long He was handcuffed also – all the time – Handcuffed crossways – that is the common mode of secur’g Pris’rs with handcuffs – I saw the strap put on at the Barracks by Serg’t Rose – Handcuffs were on Harlequin when he came From the Hume to Barbers 10 Miles – I halted at Barbers that night – The Pris’r had a pair of Handcuffs that night on his hands & a pair on his legs & was fastened to the Wall by a Chain. The chain was put through the slabs & fastened outside so as to give him as much room as possible – We left Barbers ab’t 7 oclock the follow’g Morn’g. Harlequin was in good health all the time I had him in charge – he ate his food very well – No rations bro’t with us to my knowledge We travelled from Barber’s to Mr. Reid’s on the Ovens – The road is part of it Hilly – part of it very level – The distance from Barber’s to the Ovens (Reid’s) is ab’t 36 miles – We arrived at Reid’s ab’t Sun down – Harlequin did not walk all the Way. I put him behind me on the Horse at a place called the Rocky Water Hole in consequence seeing a Plate belong’g to some of the Blacks ab’t 27 miles from Mr. Reid’s Station – He rode ab’t 8 miles – Harlequin did not appear fatigued when he got to Reid’s - he ate his Supper well – there did not appear to be any thing the Matter with him. Rowley an’r trooper was with me. Harlequin was Handcuffed all that day from Barber’s to Reid’s – The Chain was held by Rowley & myself all the way – Serg’t Rose gave me Instructions – he marked out the Journeys - & told me to keep the Handcuffs on - & told me to keep the Chain in my hand – I secured the Pris’r in the same way at Reids as I did at Barbers – I put the Irons on the dece’d’s legs by myself – Pris’r was in good health when he arrived at Reids – he did not complain – he eat well – he co’d speak so that we co’d understand him very well – He did not complain of fatigue, or of want of Provisions or Water – I left Mr. Reids the next Morn’g ab’t ½ past 7 oclock – The Stage from Reid’s was to the Broken River – ab’t 30 Miles. to the Police Station – we reached it ab’t sun down – very near night – The Road from the Ovens to Broken River has some Ranges not very steep – not many – The Pris’r was Handcuff’d from the Ovens to the Broken River. I cant say if he had the Leather on his Neck – Part of the way the other Trooper & I held the Chain – Corp’l Kersher received the Pris’r from me at the Broken River – I put the Irons on Harlequin’s legs at night think’g it the best way to secure him – Harlequin when I gave him up appeared very well – he eat & drank the same as myself –

X’ex’d

The Pris’rs at the Bar had had nothing to do with Harlequin at this time – I consider that I sho’d have been punished had I disobeyed orders respect’g the Chain –

Per Jury

I saw the Serg’t put a leather Strap on – the Chain slip –

Abraham Kershaw Corp’l in the Mounted Police –

I have charge of the Station at Broken River – I was so in the begin’g of Dec’r last – Somewhere ab’t that time I rece’d a Pris’r from Mounted Policemen Byers & Rowley a Native – Harlequin. The Troopers arrived at my Station some where ab’t Sundown – they handed their Pris’r over to me – I took charge of him When hand’d over to me he appeared in very good health – I gave him some refreshm’t – he was handcuffed & I secured his legs with handcuffed – There was a Chain attached to Harlequin’s neck but one of the Escort took it off as it belong’d to one of the men –
(in margin: Byers did not take if off -)
I did not see how it was attached – I think there was a Padlock – At the time the chain was thus taken off Harlequin appeared to be in very good health – Harlequin’s neck was not swelled – The Chain was not on him dur’g the night. I had a Watch over him. I conducted Harlequin from the Broken River to the Goulburn – a Pair of Handcuffs on his hands – we set out ab’t 8 oclock in the Morn’g. I led him with a collar Chain hav’g a Strap attached to it. strap thro’ the link of the chain – there was a padlock attached – The Chain I put on was ab’t 4 feet – The usual weight of a Collar Chain is ab’t 1 lb weight – We travelled 28 miles the day we left broken River – We stopped at the Seven Creeks – The Road is a Bushy Road not easily travelled – We had no refreshm’t with us but we called for some before we ended the day’s journey Harlequin rode two Miles that day – more to give him Encouragement for the follow’g day – I put a pair of Handcuffs on the Pris’r’s legs & kept the chain on him that night – I left the Seven Creeks for the Goulburn ab’t 6 oclock – we reached the Goulburn same Even’g ab’t 4 oclock The distance from the 7 Creeks to the Goulburn is ab’t 29 Miles – When we got to the Goulburn Harlequin compl’d of hav’g a pain in his right side – he compl’d before he reached the Goulburn ab’t 12 miles before – I halted for ab’t an hour in consequence – after that he rode – ab’t seven miles before he had some food ate very well – very heartily – He complained when he reached Goulburn no more than at first of his side – He did not complain to me of any Injury ab’t his Chest – He was a very active strong Man – The road from seven creeks to Goldburn is a level road – easily travelled – There is a Police Station at the Goulburn – Serg’t Keyling is in charge of that – ab’t an hour after our Arrival he came in from Melbourne & I handed over the Pris’r to him – I consider he was in the same state of health when I gave him (Harlequin) over to Serg’t Keyling as when he first compl’d – I told Serg’t K Harlequin was ill – I told him that Harlequin compl’d of hav’g a pain in his side

X’ex’d

We halted as I have descr’d simply for the sake of the Pris’r

Jury

I was in C’t. I don’t know the day of the Month that I deliv’d the Pris’r to Serg’t Keyling – I send a Rep’t of the Pris’rs I receive & deliver up to the Command’g Officer –

Livett Keyling Serg.t M.P. Sworn

I have charge of the Goulburn Stat’n – I recollect the 4th of Dec’r last I was in charge at that time – On the 4th Dec’r I found Harlequin at my place. Corp’ Kershaw gave him in charge to me – The Pris’rs were present – Harlequin was sick & I directed them how to march – I gave Harlequin food – he eat very little – he took some tea – he slept in the Barracks that night. he was Handcuffed when given in my charge – I secured him by chain’g him to a post – the Chain was on his arm – there was a chain on his Neck when he came in – Nothing on his legs he had Blankets – he coughed – he appeared to be ab’t the same in the Morn’g. We have no Medical Man attached to the Station - near – no Medical Man for the Troopers – When Ill we are obliged to come down to Melbourne – I gave Harlequin in Custody to the Pris’rs. The day after to proceed with him to Melbourne as quickly as they co’d Because he appeared to me to be very ill – I put a chain round Harlequin’s neck but there was cloth to prevent it injur’g him. The chain might be 4 foot long – it co’d not? I co’d not say the Weight – it might be ab’t two Pounds – The Distance from Gouldburn to Melbourne is ab’t 75 Miles. I gave no orders ab’t halting betw’n Gouldburn & Melbourne – There are halting Places – there is a halting place ab’t 30 Miles from Gouldburn – sometimes halt once sometimes twice – The Pris’rs said they stopp’d at Mr Green’s ab’t 35 miles from Gouldburn –

X’ex’d

Sometimes 3 days on the Road – I deemed it advisable on acc’t of Harlequin’s health to get him into Melbourne as soon as possible for Medical Advice –

Per Jury

I co’d have allowed Harlequin a days rest had I deemed it necessary – no Carts where we are – I gave Instructions to the Men to let the dece’d ride if necessary–

Cha’s Collington - Sworn

I reside at the Police office – a Writer at the Police office – ab’t two years ½ in that Employm’t – a Pris’r of the Crown – I was in charge of the Watch House on the l6 of Dec’r – I saw them at the Watch House on that day betw’n the hours of two & four – They bro’t an Aboriginal Native – They delivered him to my charge – I looked at him – his name was Harlequin, that was the name given to me at the time he was given in charge – When he was given into my Charge he had a chain round his Neck – ab’t ¾ of an Inch in circumference – commonly called a Dog Chain. I did not observe any Cloth ab’t the Chain I wo’d not swear there was not – There was no Cloth outside the Chain – it was so tight I co’d not put my finger thro’ it – I did not observe any Cloth inside – I did not feel any Cloth It was at the Door – I did not see any Cloth – It was at the door – a fine day ab’t 4 oclock in the Even’g. when I ex’d the Chain – His face appeared swollen – The Whole of his features were swollen great diffculty in breathing – I took the chain off – Harlequin’s features when bro’t to the Watch house were Swollen – It was that appearance that led me to examine the Chain round his neck – on exam’g the Chain I found I co’d not pop my finger betw’n the Chain & his Neck – I cannot say if there were any Cloth round the Chain – I never felt or observed any cloth – When I took off the Chain I did not discover any mark on the neck – I took the chain off when he was in the dark – he threw himself down on the broad of his back, this was after the chain was taken of – there was a square piece of Iron at the End of the Dog Chain fastened through a link. It was not drawn tighter – it was not a runn’g noose. The Watch House keeper came in shortly after – I offer’d him (Harlequin) Water but he wo’d not touch it –

X’ex’d

I took the chain off myself

The Trooper Goodwin himself was present when I took the Chain off – only T’r Goodwin & myself present when I took the Chain off – I was left in Charge by the authority & with the knowledge of the Watch House Keeper –

Fra’s McCarrick - Sworn

I am a Constable – I have been a Constable ab’t three Months – I was so before I resigned from bad health – I was Watch House Keeper in Dec’r last – I had a Pris’r a Black Man of the name of Harlequin I think on the 6th of Dec’r last – I was not at the Watch House when the Pris’r was delivered there – I went off to New Town to take a Prisoner – When I returned I saw Harlequin in the Watch House he was sitting lean’g aga’st the Wall in the Cell – He put his hand to his side & breast as if in pain there … I bro’t him in some bread & Tea – he drank the Tea – I went out & got Dr. Cussen he came in ab’t ½ an hour

Collington recalled

Not over half an hour from Harlequin’s reception on the Watch House before McCarrick came –

McCarrick

I left the last Wit’s in charge by my own Authority – I came as a Pris’r

Patrick Cussen – M.D. Gov’t Medical Man

I remember the 6th of Dec’r last year – I visited the Watch House on that day between 5 & 6 oclock in the Evening to see a Black Man that had recently been bro’t in by the Mounted Police – Harlequin – Harlequin was rather hot & feverish – I understood he had been bro’t in a long journey that day – very mild symptoms – I found him sitting on the floor with his back to the Wall – he had all the appearance of a Man a good deal fatigued (“fatigued” repeated) – excessively fatigued – these Appearances were limited to the very first Visit – I did not attach much importance to them – I visited him the next Morning, fever had then positively ensued – on the first visit he was only as hot & feverish as a Man may be after a long journey. Seeing he was then excessively Ill & that fever had positively taken place I had him removed to the Hospital – I prescribed for him the Ev’g I saw him. I did not prescribe for him the first Ev’g the remedies commonly given in fever Cases – I barely? sent a Mild purgative consider’g that all that was necessary at the time – I prescribed for him the 2’d day. The Prescriptions were then excessively Active for I then consid’d the Case required it. I think I saw him 2 or 3 times the 2’d day – I gave directions to have him removed to the Hospital & went to see him afterwards & again that Even’g. I went twice in consequence of the danger of the Case – He died on Tuesday the 8th of Dec’r or rather towards Wednesday Morn’g – very unusual rapidity of fever in this Colony – I think in this Case the fever was produced both by fatigue & mental depression

per Jury

I ex’d the neck – no mark on the neck whatsoever – Nothing in his face to attract particular Attention – To travel in Chains as the dece’d did 75 Miles wo’d not I think endanger life – provided there was no undue pressure – It sho’d be avoided if possible – I made no post Mortem Examination for none was called for –

X’ex’d

It Certainly wo’d not endanger life to have ridden 75 Miles with’t any undue pressure of the Chain. The pain in the side was not such as ought to have induced the Pris’rs to stop the journey – Dece’d co’d not have been labouring under any Inflamation or the progress of it wo’d have impeded the journey in a few hours – The Pain in the side co’d not have arisen from the Chain round the neck or the Handcuffs – Fear induces & accellerates disease very frequently. Under every Circ’s I have heard today & you have just now ment’d, there was nothing to induce delay

R-ex-d

I have never seen a case of fear accelerating disease in so great a degree as to cut off the Patient in two days – Fever often arises from many Causes we do not know –

Case for the Prosecut’n

For the Defence

William Wright Sworn

I remember some time in Dec’r last when Harlequin was bro’t to the Watch House – I took off the Chain & hand’d it to the Police Man – The Chain was not tight ab’t the neck – It was fasten’d by a pair of Handcuffs – hang’g in front – weighing ab’t ½ or ¾ of a lb – It was not by my consent the Watch house was left in charge of this same Man – on all occasions I have told them never to leave the Watch house without giving it over to constable –

Not Guilty

Commentary

George Augustus Robinson must have become aware of Harlequin’s death shortly after it occurred as the entries in his journal for 10 December 1840 indicate that he was already questioning those involved. Later official correspondence indicates that the authorities were very concerned about this incident and wanted it properly investigated but difficulties arose as to the formalities of such an investigation. In February 1841, James Croke wrote to La Trobe expressing the view (inter alia) that:

‘I must candidly confess that the disease of which Harlequin died was superinduced by the manner in which he was made to travel (and that there is evidence of that fact I am quite satisfied) the escort are as guilty of his death as if they had shot him without justifiable cause.’

There was a further letter from Croke to La Trobe in April 1841 advising that he considered all involved (except Goodwin and Connock) in the movement of Harlequin until his delivery to the watch house keeper should be examined as it was important to know Harlequin’s state of health at various stages and the rate of movement. Some further enquiries must have been made as the way the evidence emerged on the trial indicates to me that Willis, Croke and defence counsel (unknown) had deposition-type material. Such material has not survived. (VPRS Series 19 Unit 11; VPRS 16 Unit 2, p. 151; VPRS Series 16 Unit 2, pp. 69, 74, 151; VPRS Series 19 Unit 14).

The William Wright, (‘Tulip Wright’) called as a defence witness was then the Chief Constable in Melbourne. In Willis’ notebook, containing his notes of this case, there was a piece of paper (which is torn from blank foolscap) with the words, in pencil, – ‘the jury wish to express their strong reprehension of the conduct of the watch house keeper in not paying more attention to the deceased and express their extreme regret that the doctor did not examine him on his first visit’. At the foot of this sheet of paper, in ink, is the date ‘17.5.41’. This document is now in Box 55.

Also in this notebook on the quarto sheet (to which reference has previously been made) there are some notes relating to the law and the facts of this case. This document is now in Box 55.

On 20 May 1841, Willis wrote to La Trobe about the appointment of Charles Collington, a prisoner, as an assistant clerk in the police office. Willis referred to Collington’s evidence in the Goodwin trial that he was left in charge of the watch house.

‘The testimony of this man Collington & that of William Wright, the Chief constable, was Dramatically opposite on a point of considerable importance (viz) taking the chain from the neck of the Aboriginal, one or other of them manifestly intended to deceive the court and impede the due course of justice’. [Willis’ underlining]

Willis goes on to express the view that the employment of convicts in ‘any way connected with the administration of justice in this district seems to me to be ill calculated for the extermination of crime’. La Trobe sent the letter to Simpson, the Police Magistrate, enquiring whether there was any way the services of Collington could be dispensed with. Simpson replied that it would be difficult to replace him as he was ‘experienced and trustworthy’.

In relation to the constant references to the fever from which Harlequin was obviously suffering it is of some interest that, in January 1841, the doctors in Melbourne were informing La Trobe of a serious fever which they linked to the arrival of a migrant ship. Perhaps it was already in the Port Phillip District and affecting susceptible aborigines (Mullaly, pp. 353-7).

There is a copy, by Willis, of some of the notes in Willis Note Book No 11 page 123 on the trial of these men on 17 May 1841 – the copy only goes as far as ‘on receiv’g the Pris’r from the Serg’t I escorted’ in the evidence of Peter Byers (RHSV Manuscript Collection, Box 55).

Page 149 is blank.

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Transcript of trial of Charles Scott for Stealing Carcase of Sheep

Willis Note Book No 11, page 150

May 18,1841 Charles Scott –

  1. Killing a Sheep with Intent to steal the Carcase
  2. For steal’g the Carcase of a Sheep –

P. Prosecutor Elects to Proceed on 2nd count - Wm Roadknight - Sworn I live at Geelong – I am a Flock owner – I keep a small No. in the neighbourhood of my dwelling – In a Paddock I missed some sheep from the fold where the Wethers for my own use are kept – I went in search & found some of them – two – one near an enclosed Paddock of Mr. Tiddy’s? & another in an enclosed Paddock of Mr. Kelly’s – I found another on the Shoulders of a Man – dead – he called himself Scott I am sure the Pris’r is the Man – I am sure it was my Sheep from the Marks (describes them) - 6th of April – in the forenoon ab’t 11 oclock –

X

To the best of my belief on the 6th of April ab’t 300 yds from the Hut at the Stone quarry I saw other persons there – one called himself Boucher – in the Road leading to the Quarry. I swear positively the Pris’r had the Sheep & an’r man was assisting him – I addressed the Parties I asked them wh’t they were doing with the Sheep the Pris’r said he was taking it home with him – Harbour was with me when I saw the two persons with the Sheep

R-ex-d

Harbour his Xtian name William I think- He is not now in my Employment – He left my Employm’t shortly after this occurrence – I do not know that I have ever seen him since –

Wm Addis - Sworn

Recollects one Wm Harbour hav’g been ex’d – I saw a Subpoena for Harbour –

Case

Insist that the Man is not Guilty at hav’g taken it – He merely took it – Pris’r at the Bar engaged from 6 till ½ past 9 – 10 oclock engaged in getting Bullocks –

Tho’s Spiers - Sworn

I recollect the 6th of April I was engaged on the 6th April at the Stone quarry at Geelong – I saw Mr Roadknight com’g to the Stone quarry – The Pris’r at the Bar was in the Stock yard – It might be at Eleven oclock as near as I could guess – When I was in Geelong it was ab’t ½ past ten – I swear that that man was in the Stock yard when Mr Roadknight came up ab’t 10 mins before I saw him come down the Hill with his Bullocks –

X

I have not know him long – the Stock yard might be ab’t 20 yds from the Quarry – Hill close by Pris’r might have been in the Stock yd a few min’s after – cant say how many Sheep we got from Mr Fisher – Mr Roadknight came to the Quarry & spoke ab’t the Sheep – It was ab’t the 6th of Feb’y - Per Cur In Bouchers Employ – came from van Dieman’s Land – Subpoenad Per Jury Geelong – He had nothing on his Shoulders – was not carrying any thing.

Cornelius McMahon – Sworn

I know the Pris’r I recollect the 6th of April – I saw the Pris’r ab’t 6 oclock till ½ past 9 – He was sent out for Bullocks I saw him next betw’n 10 & 11 oclock ab’t Eleven – I saw him at the Quarry – As far as I co’d think – I co’d not see him com’g down the Hill – He Spiers co’d not see the Bullocks com’g down the Hill from where he was stand’g. I saw Mr Roadknight – Scott in the Quarry

per Jury to Mr Roadknight

Pris’r put down the Sheep when we desired him – We both Walked towards the Hut – He had no Bullocks – I saw some Bullocks com’g down the Hill – a cart came up shortly after I stopped the man with the Sheep on his Shoulder – Guilty -

Commentary

The committal proceedings in this case were held in Geelong on 6 & 7 April 1841. In those proceedings James Boucher was also charged but the evidence revealed that the Boucher seen with Scott was not James but his brother. William Roadknight swore ‘there are two brothers who look alike’ (VPRS 109 Unit 1, p. 377).

William Harbour gave evidence at those committal proceedings to the same effect as William Roadknight. William Addis was one of the Magistrates who conducted this committal and the purpose in calling him at the trial was to explain that Harbour had given evidence at the committal and a subpoena had been issued for his attendance at the trial but could not be served.

James Croke prosecuted and Redmond Barry appeared for Scott. Barry objected to there being 2 counts in the Information. Croke said one count was under the relevant Statute and the other alleged the offence at common law but he was prepared to elect. Willis said he must elect and the trial proceeded on the 2nd count. Barry’s notes about this trial indicate that he has researched this issue before the trial. In this notebook on the quarto sheet (to which reference has previously been made) there are some notes relating to the joinder of these counts.

‘Carcase’ – this was an acceptable variant of the word now usually spelt ‘carcass’ (OED).

William Roadknight’s evidence about ‘the Wethers for my own use’ refers to the sheep used to provide food for his family and employees. Thomas Spiers and Cornelius McMahonwere called by the defence to provide Scott with an alibi. Barry’s notes include the words ‘alibi tried on. no go’. After the jury convicted Scott, Croke moved that the defence witnesses be dealt with for prevarication and each was imprisoned for 3 months (Port Phillip Gazette 19 May 1841; Port Phillip Patriot 20 May 1841).

The CRB records Scott’s status as ‘Free’ and that he was sentenced to 7 years transportation. The remainder of Page 155 is blank.

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Transcript of trial of John Roach for Assault

Willis Note Book No 11, page 156

May 18, 1841

John Roach Assault of Constable in the Execution of his Duty - 2’d Common Assault –

Tho’s Smith - Sworn

I am a Constable in Portland Bay Police I have been in Service there 6 Mo’s – I was before a Constable in Melbourne 2 yrs – I recollect be’g on duty on Sunday 27th of Dec’r. Sunday – I went to Cronin’s Public House – to quell a Disturbance – I saw some drunken people – Jones was drunk hav’g a fight – I & Hallsworth the District

Constable we apprehend’d him – I saw a great many empty bottles – on arresting Jones Pris’r took up Bottles – he came to where we were Shook the bottles in a threaten’g way & said no one sho’d take any mate of theirs – (Pris’r came with Mr Furlong’s drays) – I begged of Roach not to interfere with us, he collared – dragged me away & rescued the Pris’r from my grasp – Roach was under the influence of liquor – Roach & me fought, - I got away – ab’t two min’s after Roach threw a bottle at me – he threw at me (“at me” repeated) a second time – I fell – the Dr attend’d me I was bad for two Months – I was sober – I afterw’ds went with the Police Magistrate & apprehend’d Roach –

X’ex’d

I know the Pris’r he is John Roach. Pris’r is Hard Work’g man – I did not ask him to hurt me – I did not strike him Pris’r first –

Case
Defence –
Guilty –
One Month’s Impris’t & Fine of 5 pounds.

Commentary

The CRB records that the conviction was for Assault and that Roach’s status was ‘Free’.

The Port Phillip Gazette of 19 May 1841 reports that the jury recommended mercy as the prisoner had already been imprisoned for 5 months. However, this recommendation to mercy is not recorded in the CRB.

The rest of page 158 is blank.

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Transcript of trial of William Jenkins, William Martin, John Remington, Edward Collins, Robert Morrison for Shooting with intent

Willis Note Book No 11, page 159

May 18 1841

Wm. Jenkins, Wm. Martin, John Remmington, Edw’d Collins & John Morrison – Ass’d Serv’ts to D. C. Simpson & Co. Shooting with intent Plea Not Guilty – 1st. Count charges all with shoot’g with intent to maim & 2nd grievous bodily harm

Mr Croke

Joseph Maddock– Sworn

I live at Lowdon River – Ass’d Serv’t to Mr. Darlow – I have been ass’d three yrs last March – I recollect the 6th of Feb’y last – I live on the Upper Station – I went to the Lower Stat’n on the 5th of Feb’y last – to take provisions I know the Pris’rs I saw Edw’d Collins at the Lower Stat’n & P.k Clarke I saw no one else there – The other Pris’rs are also in the Employ of Messrs Dalton & Darlow as Watchmen of the Sheep at night – Collins said there was a Meet’g of the Natives – there wo’d be some Mischief, that they had attempted to interrupt the Shepherd out on the Plain. I saw the Pris’rs Remmington Martin Jenkins Morrison & Collins at the lower station on the Evn’g of the 5 of Feb’y – I went down to the Lower Stat’n with Jenkins Remmington & Martin – we were all armed when we left the Upper Station – I had a Musquet – I cant say wh’t Arms the others had – Martin has a gun – I stopped at the Lower stat’n on the night of the fifth of Feb’y – I slept there I had two charges of Powder & one of duck shot. My gun was charged with shot I did not see shot in the possession of the others – I was not attacked that night Sat’y the 5th by the natives – I was attacked on the Sunday follow’g by the natives throw’g spears at me – I saw the spears thrown – from forty or fifty yardsI fired after the spears had been thrown as I was in great danger – There were ab’t 150 natives – I saw a gun in the Hand of Wm Jenkins I was there at the Commencem’t of this Attack Collins Martin Jenkins & Remmington were present when the Attack was made on me – They had guns – Not Guilty –

Commentary

Whereas Willis has the name of one prisoner as ‘John Morrison’, he is always referred to as ‘Robert Morrison’ in other documents relating to this incident.

In early February 1841, during an attack by aborigines on shepherds working on the station of Messrs Dutton, Darlot and Simson on the Lodden River, an aborigine known as ‘Tommy’, otherwise Goudu-urmin, was shot and later died. During February and March Edward Stone Parker an assistant Protector of Aborigines and Justice of the Peace conducted an enquiry which amounted to committal proceedings about this shooting. In the course of the proceedings, Parker, contrary to law, took sworn statements from each of these prisoners. (The documents are in VPRS Series 30P Box 185 NCR 8' and VPRS Series 21 Unit 1 – 1841 collection.)

It would appear, from the newspaper reports, that, during some defence evidence, Croke ‘relinquished the proceedings’ and Willis gave the jury a ‘no case direction’ to the effect that the ‘prisoners were perfectly justified in shooting in self defence’. All were acquitted. Willis criticised Parker for taking sworn depositions from those charged. In doing so he was repeating a criticism he had directed to Charles Seivwright, another Assistant Protector, who had done the same thing in another case heard earlier in the sittings (the John Paine Murder trial). He also expressed regret that the prisoners had spent so long in custody (Mullaly, pp. 365-9). ‘Lowdon River’ presumably is the Loddon River and Willis’ spelling may reflect the way the locals then pronounced the name.

Page 162 is blank.

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Transcript of trial of Joseph Thompson and Robert Gosling for Larceny

Willis Note Book No 11, page 163

May 18, 1841

Joseph Thompson – R’t Gosling Larceny –

John Mooney - Sworn

Constable in Melbourne I have seen the Pris’rs before on the Morn’g of the 13th of May ab’t 2 oclock – They had each a Coil of Rope. Produces a Coil which Thompson had – Gosling had the 2nd Coil produced – on the Morn’g of the 13th I was on duty in Flinders Lane I met the Pris’rs I asked them where they were going with the Rope Thompson said to the vessel William I said I wo’d go with him to ascertain if the Ropes were correct – on going to the Wharf they said it was to the Victoria they were going – I went with them there – Thompson asked if the Ropes were correct a voice said they (repeated) knew nothing ab’t them on going to the Watch house he said he was an old Constable –

X’ex’d

I had never to my knowledge seen the men before that morn’g – I will not undertake to swear that the Rope was not the property of the Ship –

Wm Thomas - Sworn

I am in the Employ of Messrs Manton & Co I am an Engineer – There was work going on Erection of a Saw Mill – I missed a Rope – Correspond’g with this – the only mark I have is the Cutt’g – I missed the Rope on Thursday Morn’g 15rh May. Rope belong’d to Messrs Manton & Co.- I cant swear to the 2nd but I believe I was us’g it – Messrs Manton’s works are at the End of Flinders Lane – the other Rope was on the top of the build’g – a ladder close by the build’g I believe –

John Aug’tus Manton Sworn We missed Rope correspond’g with that produced on the morn’g of the 13th Defence –

Guilty
7 yrs Transportat’n

Commentary

Redmond Barry, instructed by William Meek, appeared for Thompson at a fee of 4 guineas. He has a note indicating that the law had formerly been that all owners must be named in the Information but after 7 Geo IV C 64 it was sufficient to name one and ‘anor or ors’.

In the CRB the status of these prisoners is listed as ‘Free’.

Page 166 is blank.

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Transcript of trial of John Caton for Assault

Willis Note Book No 11, page 167

May 18. 1841 John Caton – 1st Assault on Constable in Execut’n of his Duty 2nd Common Assault<

John Mooney - Sworn

Comstable Melbourne – I was on duty on 6th May Ev’g in Flinders Lane – I was in Comp’y with others in charge of a man – I met an’r man Wm Hawkins very drunk in the street I apprehend’d Pris’r attempted to rescue him – ab’t 6 or 7 oclock – he saw my Staff – Pris’r came up & hit me on the back of the Neck with my Staff – Attempting to rescue Hawkins – Pris’r ran away –

X’ex’d

Hawkins was very drunk - I did not use more force than necessary.

Tho’s Williams

Guilty 12 mo’s Impris’t hard labour

Commentary

‘my Staff’ – Police carried a baton type instrument which signified that they were persons of authority.

In the CRB, Caton’s status is listed as ‘Free’ and that he was convicted of Assault.

On 15 April 1842 the Colonial Secretary wrote to La Trobe approving the remission of the sentences of 16 listed individuals including John Caton (VPRS Series 19, Unit 29).

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