Casebook 13 – Transcripts and Commentary

[7 January, 1842 – 19 July, 1842]

Case List

1. Transcript of trial of Peter Turte, Catherine Turte for Keeping a Brothel

Willis Note Book No 13 page 1

Jan’y 7. 1842

Supreme Crim’l Court

Pt Phillip ————— Peter Turte & Catherine his Wife

1st C’t Brothel

2’d Disorderly House

3’d ags’t the Husb’d alone

George Vinge Sworn

Constable – I know the Pris’rs they live in a right of road betw’n Burke Street & Burke Lane They acted as owners of that House. I have seen Males and Females frequently go to that House – more than a Doz’n times – I have seen Men & Women go in & stay half an Hour & sometimes stay all night – I have the Pris’rs invite persons to their House – I have been at Mr Sidebottom’s & have seen Irishmen come from the country & have seen Turte go up to them & say Old Fellow where have you been liv’g lately the Man has ment’d diff’t people’s names & Turte has said come in & let us hve a dram – I have seen Turte go out of the Public House & take the Man with him into his own House a perfect Stranger – I have seen his wife take men likewise – She is known as Mrs Turte they live together as Man & Wife The Men have gone with her & other Girls that live with her into the House Girls that live by Prostitution – I have seen Fiddling Drinking & Men & Women ly’g on the floor – Woman’s Expression –

John Waller Sworn

I know the Pris’rs I know their House (descr’s it) at the back of Sidebottoms Public House – I have seen Men & Women guilty of fornicat’n in that House – frequently – Have heard Noises & Profane Language by Night & day – Def’ts were the recognised Owners of the House – I have occasion to call at the House in consequence of disturbance.

X’d

I have been in your House two or three times – I have taken men after they come from your House in a beastly state of Intoxication

Rich’d Forrest – Sworn

I live close to Turte’s House – I have been disturbed by Noises from Turte’s House –

[Judge Willis’ account of the trial ends here. The remainder of page 2 is blank.]

Commentary

John Waller was a constable.

William Sidebottom had the Golden Fleece public house in Bourke St about this time.

Noise from the house was some evidence that the premises were ‘disorderly’.

In their defence the accused made statements in writing alleging some person instituted the prosecution out of spite and ill-feeling. Redmond Barry as amicus curiae said the matter should have been brought on in Quarter Sessions which was the usual court and this would have given them a right of appeal – Willis overruled this submission saying the Supreme Court had full jurisdiction (Port Phillip Herald ,11 January, 1842).

The Jury, without retiring, convicted both prisoners of Keeping a disorderly house; both were recorded, in the CRB as FS, and both were sentenced to be imprisoned for 2 years. Peter Turte was also fined 50 pounds and ordered to be imprisoned until the fine was paid. In the CRB and other documents the Turtes are given the surname ‘Tuet’, ‘Tute’ and ‘Tuite’.

In his sentencing remarks Willis commented on the history of brothel keeping and that it was right to show, by the punishment awarded, his detestation of such improper and abominable places (Port Phillip Gazette, 8 January, 1842)

In February 1843 these prisoners petitioned La Trobe for mitigation of their sentence.

In June 1843 the Colonial Secretary wrote to La Trobe that the remainder of their sentences of imprisonment could be remitted (VPRS Series 19, Units 41, 47; see Behan pp. 121-3 (sentence wrongly stated); Mullaly p. 194.)

2. Transcript of trial of Patrick Conroy for Larceny

Willis Note Book No 13, page 3

Jan’y 7 1842

Patrick Conroy – Larceny –

Cha’s Dickenson – Sworn

Constable in the Water Police – I recollect 10th of Dec’r – I saw the Pris’r on the Morn’g of that day – he was discharged from our Office – Towards the Even’g I went to Pris’rs House – I found some Goods (descr’d) in his House under his bed – Swears to the Sheep Shears from the Way in which I broke it open – I took the Prop’y I found to the Watch house & gave it to the Watch house keeper Cox – Bolt of Canvass I can swear to – found in an Empty Water (word missing) close to Pris’rs House – 3 Bottles of Wine I found in his Box in his House – I found Shot Belts also. Swears to two Whips – He swears to some of the things prod’d being those deliv’d to the Watch House keeper – Bolts of Canvass & Shears & Shot belts & Shot & Whips –

X’ex’d

Before I searched the House I took the Pris’r to the Watch House – When I took the Pris’r he said “I’m a done Man” – I left two Men in charge of the goods – Nicholson & Wren constables – I can swear to the Canvass by the Marks on it – I can swear to the Whips – One was thrown out of the House & I had a good look at it – Barrell was covered up with a cloth & a lot of lumber over it –

Edw’d Langhorne Sworn

I can swear to the Shot Belts as hav’g been in the Store – The Shot Bags correspond as to Marks – I can also swear as to Children’s Clothes. They were taken from under Pris’rs Bed & handed over to me – I know the Pris’r had been a short time previously employm’t in my Brothers Store – The Shot Belts were found near the Pris’r’s Store – describes how he knows the Children’s Clothes – Pris’r frequently seen tak’g small things away –

Arthur Langhorne – Sworn

I was in charge of the Store – I can swear to Shot belts – Boys Clothes – I missed two bolts of Canvass from the Store – Never gave the things to Pris’r

X’ex’d

Never sold Pris’r any goods – I don’t think the Pris’r ever bo’t goods –

Wm Wright Sworn

I saw Dickenson bring this Prop’y into Private Room – I swear to the Canvass as been bro’t in by Dickenson from Green –

Mr Murray

Mary Taylor Sworn

I went one night to buy some Tablecloths with Mrs Conroy – very often I saw Paddy buy’g goods at Langhornes – I gave my own Table Cloth to Mrs Conroy –

X’d

Never saw any of the things laid in Indictm’t

Peter Mason Sworn

I have sold grocery goods & one Shot Belt to Pris’r – I can’t swear that I never sold any of the goods – here – I have not been in the Store for 4 Months –

Verdict

Guilty

7 yrs Transportat’n

Commentary

The Langhorne Bros were merchants in Flinders Lane.

‘marks’ were commonly used to identify property but were never described in evidence.

Taylor and Mason were defence witnesses.

‘Never saw any of the things laid in Indictm’t’ – the items allegedly stolen were listed in the Information, the formal document filed in Court. The ‘indictment’ was the name given to the same formal document in England and was commonly used in the Port Phillip District.

The Hon J Erskine Murray appeared for the accused and cautioned the jury about accepting the evidence about the identity of property (Port Phillip Herald, 11 January, 1842)

Conroy is recorded in the CRB as FS. He was sentenced to be transported for 7 years.

In May 1843, the Governor refused to remit any part of Conroy’s sentence and a letter Conroy wrote to his wife in October 1843 indicates he was then on Cockatoo Island and was concerned he might be sent to VDL (VPRS Series 19 Units 45 and 53).

3. Transcript of trial of William Marchant for Cheating

Willis Note Book No 13 page 6

Jan’y 7. 1842

Will’m Marchant. Cheat’g

Plea Not Guilty

Kenneth Muirson Sworn

I live at Kinlochue Inn. I recollect the 24th of Dec’r – I saw the Pris’r at the Bar on that Even’g at my House – He purchased a Horse for me for 42 pounds – he gave me a Cheque on the Union B’k (Cheque Produced) – I presented the Cheque on Friday the 28th of Dec’r at the Union B’k (some words crossed through) Which was not p’d. When I received the Cheque from Pris’r I said to him I hope there will be funds – He said he had 150 pounds in the Union Bank of Australia – I deliv’d the Horse. Pris’r rode him away – Sold the Horse to Pris’r af’r Dinner. He had one glass in my House before he went away – quite sober when he came to my House – Never saw Marchant before – Neither knew any thing of him.

X’d

I don’t know at what hour Pris’r came to my House – Dined betw’n 2 & 9. I drew the Cheque

Not Guilty

Committed for one Month for Prevaricat’n

Commentary

Marchant (sometimes referred to as ‘Merchant’) was charged with the form of cheating known as obtaining property by false pretences. He purchased a horse from Muirson and paid by a cheque which he claimed was valid but which was worthless when presented at the bank.

When sworn as a witness, Muirson claimed he could not remember the detail of the transaction and prevaricated when cross-examined. Croke then abandoned the case and the Jury was then directed to acquit Marchant. Willis then imprisoned Muirson for 1 month ‘in order to refresh your memory, and as a check upon you in the future’ (Port Phillip Gazette, 8 January, 1842; see Mullaly pp. 136-7).

4. Transcript of trial of John Barry for forgery

Willis Note Book No 13, page 7

Jan’y 7, 1842

John Barry – Forgery

Margaret Donovan Sworn Kains Farrington

I know the Prisoner.

I am married. I recollect 31st Dec’r

Wm Wright sworn

Joseph Smith Sworn

I lodged with a Woman whose name I understood to be Marg’t Donovan I called her Marg’t I recollect 31st of this Month – I saw the Pris’r there that day – I saw Pris’r write Michael Mullins on the Back of the Cheque –

Not Guilty

Commentary

Barry was charged with forgery and uttering. The victims were alleged to be James Simpson and Margaret Donovan. She was the first witness called by the prosecution. When asked to take oath she said her name was not Donovan but Farrington. When questioned that she had told police her name was Donovan she said her real name was Farrington and that she was married woman residing with her husband. Later she said she was not married but she had ‘only just jumped over the broomstick’. Willis said he would not allow the case to proceed as there was no proof of who was the party was that was intended to be defrauded. ‘Donovan’ was then sentenced to 1 month imprisonment ‘to refresh your memory’ for her prevarication.

The expression ‘to jump over the broomstick’ has the traditional meaning of to live together without the proper ceremony of marriage. (Brewer: Concise Dictionary of Phrase & Fable)

‘Kains Farrington’ – possibly the name of the man to whom Donovan claimed to have married (See Mullaly, p. 137).

5. Transcript of trial of John Griffiths for Larceny

Willis Note Book No 13 page 8

Jan’y 7th 1842

John Griffiths – Larceny

Marg’t Heffernan Sworn

I lived at Elkins on the 8th of Dec’r – I recollect the Morn’g of the 8th I saw the Pris’r on the Morn’g of that day – A man knocked at Mrs Elkins’ sitting Room door – the door looked up tow’ds the Hill – there was an’r man rapped at the door – I sho’d know the man if I saw him – he asked for a light for his Pipe. Pris’r was 7 or 8 yds off – out in the middle of the Pathway – I told the ? there was no Admiss’n there – he pushed the door open – Prs’r stood where he was. Betw’n 11 & 12 in the forenoon. Pris’r had a Blue Jacket & White Trowsers & Straw Hat on – I saw One of the Men that came in the Morn’g going out of the Parlour sometime afterw’ds – I wo’d not know this man Pris’r unless he had bro’t the watch – I am positive this was the same man I saw stand’g in the Pathway in the morn’g – Straw Hat on – I saw him in the Ev’g with a Black Hat – I am sure it is the same man-

Jane Elkington Sworn

I recollect hav’g lost a Watch on the 8th of Dec’r. Watch Produced – I saw three Men on the morn’g of 8th Dec’r near my House Pris’r was one of them – I saw the Pris’r afterw’ds at 8 or 9 oclock in the Ev’g ab’t ½ an hour after I missed the Watch I sent for the Police – Pris’r was giv’g me my Watch when the Police came – Pris’r said I have bro’t back your Watch – you must consider me an honest man I might have thrown it in the Yarra – He was giving me the Watch when the Police.

X’d

I ans’d I was very much obliged to Pris’r for bring’g the Watch back but I thought he was as great a rogue as any of the others – I saw Pris’r in the morn’g – It was the name deeply Engraved the Watch that bro’t it back –

John Waller – Sworn

I am a Constable, I recollect the 8th of Dec’r I received informat’n of a Watch be’g stolen & in consequence apprehended – I went to Mrs. Elkington’s & saw the Pris’r in the act of giv’g this watch into her hand – I asked the Pris’r where he got it – he said He had knocked down a bloody Wretch in the Street who took the Watch – He said he sho’d not know him again.

X’d

Mrs Elkington said she did not care so long as she got the Watch –

Mr Murray

Heard that a Watch was lost more likely Pris’r sho’d have acted as he stated –

Guilty Tr. 7 years

Commentary

The Hon J Erskine Murray appeared for the prisoner who was FS; he was sentenced to be transported for 7 years.

This case is not reported in the local newspapers but one is left with the impression that, after the watch was stolen, the thief realized that he would not be able to explain his possession of a watch with a different name engraved on it so he decided to return it claiming to have recovered it from the ‘thief’.

The remainder of page 10 is blank. Pages 11 and 12 are blank.

The only item on page 13 is as follows:-

Sup. C’t Pt Phillip ) Mr Croke on the p’t of the Queen applies for

Feb’y 15. 1842 ) an absolute order for an Attachment ags’t

George Arden Esq’r

Editor of pt. Phillip Gazette – Afft of Pinnock-Gurner & Kitson –

In the absence of the Supreme Court files for this period it is difficult to be certain about the nature of these proceedings. I am left with the impression that formal proceedings for Contempt of Court had been instituted against George Arden, the editor of the Port Phillip Gazette, in respect of some criticism of Willis published in the Port Phillip Gazette, and that James Croke was moving the Court for an order to commit Arden to prison for the Contempt. Such a proceeding would be based on material contained in affidavits and the ‘Afft’ in these notes refers to affidavits sworn by James Denham Pinnock, who was then Deputy Registrar of the Supreme Court, Henry Field Gurner, who was then Crown Solicitor and Henry Kitson, who was then Willis’ Associate.

There are no further notes about this case in any of the surviving Willis Note Books but the contemporary newspapers did report the proceedings.

When Arden did not appear on 15 February, Willis issued an order of Attachment requiring Arden to attend court within 4 days to answer the Interrogatories of the Court about what had been published. Just after the order was made Arden did appear and was bailed to appear at a later date.

On 16 February the Port Phillip Gazette published an article critical of Willis’ conduct in Court on 15 February. Apparently the Crown Solicitor did serve the Interrogatories on Arden and he was required to attend Court on 19 February. Arden did file answers to the Interrogatories and appeared in Court on 19 February. It would seem that Willis took the view that the original article was libellous of him and that that Contempt was aggravated by the way the Interrogatories were answered. In the event Arden was sentenced to be imprisoned for twelve months and to pay a fine of £300 and remain in prison until the fine was paid. Arden was not released until May 1842 (see Behan Chapter 13; Garryowen pp. 75-6).

Page 14 is blank.

6. Transcript of trial of William Weay for Stealing in dwelling house and putting in fear

Willis Note Book No 13 page 15

Feb’y 15. 1842

Wm Weay – 1st Steal’g in a Dwelling

House & Putt’g in Fear

2nd C’t. Common Larceny

Hannah Calvert –

On 16th Jan’y Mr & Mrs Dixon went out & I shut the door close – Windows open – easy to get in thro’ them – I saw no one in the House – No handle to the door outside – I saw the Pris’r in the Parlour – he said he got in by the door – door shut. Pris’r was sitt’g in a Chair behind the door – He asked for some person whose Name I did not know – He asked if Master was within. I was frightened & said he was – Little Bourke St & Lonsdale Street – Books on the Table – Mrs. wore no apron when she went out – I went into the Kitchen & Pris’r followed me He asked if Master was in the yard I said he was – I was frightened – Pris’r went out of the front door – Not another person in the House af’r Master & Mrs went out – not a human be’g

X’d

Mary Louisa Dixon

On the 16th of Jan’y I went out in the Even’g to Walk with my husb’d & Child – before I went out & wore an apron – I folded it up & left it on the bed – the bed room Window was up – I never saw the apron from that time to this. The Lay of the last Minstrel – And Beaties Poems – The Books were on the Table when I went out – I am certain, certain also that the apron was on the bed –

X’ex’d

Last Wit’s might have walked out ab’t a month before –

John Dixon – Sworn

I live in Russell Street – 1st Wit’s is in my Service – she is remarkably well conducted – has been in my Service 4 or 5 yrs – I recollect their being found – bro’t out of the Water Closet –

per Jury

Pris’r never worked for me – I never knew him before – The books were put were they might afterwards be taken away –

Defence

John Dyer – Sworn –

In Dec’r you were work’g for Johnson Cab’t Maker I was work’g there also – I think in Dec’r you came with a female Pris’r asked her if she was married – H. Calvert not like her –

Guilty

2 yrs Impris’t & hard labour

Commentary

In his defence Weay stated that his work gave him sufficient income that he did not need to steal and that the girl Calvert had often admitted him to the house after Dr and Mrs Dixon were in bed. Willis told jury that the girl had been given a good character by her employers and it was a dastardly attack on her (Port Phillip Herald 18 February 1842).

Weay is listed as ‘Wray’ and his status is given as ‘Free’ in the CRB where the conviction is recorded as Stealing in dwelling house and putting in fear.

In January 1843 the balance of Wray’s sentence was remitted on Willis’ recommendation (VPRS Series 19 Unit 40).

In the depositions relating to this case, where the witnesses signed their names, ‘Dixon’ is given as ‘Dickson’. John Dickson was a doctor in Melbourne (VPRS Series 30P Box 1 – 1-9-1).

Walter Scott wrote the Lay of the Last Minstrel.

Cabinet-makers sometimes wore aprons at work.

7. Transcript of Trial of Daniel and Mary Solhurst for Larceny

Willis Note Book No 13, page 17

Feb’y 15,1842

Dan’l Solhurst & Mary Solhurst

Larceny

Amelia Lyons – Sworn</p>

I live at New Town on the 14th of Jan’y last I recollect hav’g seen the Pris’r at our House Wife of David Lyons – I purchased from the Wife a Fan 9s Husb’d stand’g by. The Woman said she bro’t it from Engl’d She gave 15s for it there – I bought no other Articles than the Fan – sev’l other Articles prod’d which were off’d me to sale to Wit’s – my Serv’t bro’t them to me –

X’d

The Fan was the only article off’d when I bo’t the Fan – I bo’t the Fan from the Woman – the Man was stand’g by –

Ellen Power – Sworn

I live at the Travellers’ Rest in New Town – I recollect the Pris’rs there he & his Wife passed a night there – I bo’t from the Wife a Ring & a Brooch I p’d 3 pounds 6s for the two –

X’d

No previous Acquaintance with the people D’l Solhurst said he bo’t them after I bo’t them

Geoffrey Ryder Sworn –

I live on the plenty – I know the Pris’rs. I hired him & his Wife for three months ab’t 4 mo’s ago – They left my Service before this occurred, but afterw’ds they were sleep’g in my House. I got them Work on an’r Farm & accommodated them – Brooch & Ring & other things my Prop’y. The Fan is mine – I found the Ring & Brooch at Lyons’s Brooch & Ring the young Woman had – Fan the ? – I kept these things in a China Trunk locked – the Key was in an’r Box unlocked – dur’g the time these people were with me they had the charge – The Key –

X’d

There was a Stockman ab’t the House. I had no suspicion of these Parties – lately arrived Emigrants – & had a favourable opinion of them from an occurrence that showed an In’t in the prop’y.

Defence

Said she received them from Mr Ryder’s

Guilty

3 y’rs Impris’t with hard labour

Commentary

The area then known as ‘New Town’ is now known as Collingwood.

In the course of proceedings, James Croke withdrew the case against the wife as he thought it probable she might have been acting under husband’s direction. –At this time a married woman could raise a defence of ‘marital coercion’ i.e. that she did the act in issue because her husband ordered her to do it.

In his charge to the Jury, Willis remarked that crimes of this sort were usually committed by ‘old hands’ and not by the emigrant community and by his conduct, Sollust had cast a slur on them (Port Phillip Gazette 16 February 1842).

The CRB records Solhurst’s status as ‘Free’ and that the Jury added a recommendation to mercy to their verdict.

The surname is also given as ‘Tolhurst’ or ‘Sollust’ in some documents.

In April 1843 the remainder of Daniel Tolhurst’s sentence was remitted (VPRS Series 19 Unit 45).

The remainder of page 18 is blank.

8. Transcript of Trial of John Davidson for Horse stealing

Willis Note Book No 13 page 19

Feby 15th 1842

John Davison – Horse stealing

Patrick McEever Sworn –

C. Constable – Geelong knows the Pris’r On 2nd Jan’y last, in comp’y with Constable Ryan – I saw John Davison in the Bush with a Mare in his possession – he had hold of the Mare by the Tether Rope – Rope round the neck coil’g the rope round his arm – The Mare was stand’g. I did not see her stir – I visit’d the place afterw’ds with the man named Costigan – ab’t 15 yards from where I first saw her – Tether Rope 40 feet long – Further than the length of the Tether Rope –

Acquitted –

Commentary

The evidence in the depositions, in this case, was to the effect that on 1 January 1842 Thomas Austin had come to Mack’s Inn, Corio, on a bay mare with black legs, all but the off hind leg which had a little white joining the hoof. He left the mare with the ostlers at the inn and they later tethered it to a tree in the bush. ‘Patrick McEever’ was Constable Patrick McKeever and his evidence at the committal was to the effect that the location of the place where he found the horse as compared to the place where it had been tethered was only ‘some few yards’. He also then swore ‘I have known the prisoner John Davidson for about two years, he has been a drunken character but I have not known him to be guilty of any dishonesty’.

The depositions are in VPRS Series 30P – Box 185 – NCR 16. There were no newspaper reports of this case.

[The remainder of page 19 is blank.]

9. Transcript of Trial of Edward Brown for Larceny

Willis Note Book No 13 page 20

Feb’y 15 1842.

Eadw’d Brown Larceny

Patrick McEever Sworn

C.C. Geelong. On 12th of Jan’y the Pris’r I know – on that day I searched his House – I found one Iron Boiler – one Tin Wash hand basin & one Tin Frypan claimed as the prop’y of Wm Smith – articles produced –

X’ex’d

Articles such as commonly used by such a person as Pris’r – no obstacle to search – no other articles of same descript’n –

Wm Smith Sworn

Geelong. Plaisterer – I lost ab’t the 18th of Dec’r cert’n articles – I know the Boiler – I swear that Pot to be my prop’y by the japan & by the Tin. I took particular Notice from the outside of the House – on the Sunday Morn’g – The Pris’r lived a Mile off – Neighbours –

Not Guilty

Commentary

‘Patrick McEever’ was Constable Patrick McKeever. The Port Phillip Gazette 16 February 1842 report of this case comments on the able defence by “Murry” – presumably, the Hon Erskine Murray

It could well be that the Edward Brown of this case, which occurred in Geelong, was the husband of the Jane Brown in the next case

10. Transcript of Trial of Jane Brown for Larceny

Willis Note Book No 13 page 21

Feb’y 15 1842

Jane Brown – Larceny –

Pleads Guilty – 6 Mo’s Impris’t

Commentary

The depositions taken in Melbourne in Jane Brown’s case reveal that the prisoner had been in Joseph Chadwick’s house on the 21st and 22nd of January 1842 and was suspected when he missed a brooch. Another resident in the house, John Haslew, also missed a brooch marked ‘Sarah Young’ on the back. When Chadwick ‘taxed’ her with the crime she confessed and said she had sold the brooches to Pollard the jeweller. Pollard refused to return the property when Chadwick approached him. Later Chief Constable Wright obtained the property. John Pollard and his employee Samuel Ferguson both swore at the committal that the prisoner had sold the brooches claiming to be the ‘Sarah Young’ and asserting her husband had gone to Geelong and left her without money.

When asked at the committal what she had to say the prisoner ‘acknowledged to having taken the brooches’ (The depositions are in VPRS Series 30P Box 1 – 1-9-5).

Brown is recorded in the CRB as ‘Free’. Willis imposed a sentence of 6 months but commuted it to 3 months in the Female Factory if she accepted – she did – Willis made comments about there not being room in the Melbourne gaol (Port Phillip Gazette, 16 February 1842).

11. Transcript of Trial of John Cousins (alias John Welbank) for Larceny

Willis Note Book No 13, page 21

Feb’y 15th 1842

John Cousins al’s Welbank

Larceny –

Pleads not guilty

Anne McMahon

Committed for Drunkeness –

For One Month –

The remainder of page 21 is blank.

Commentary

The depositions, taken in Geelong, disclose that on Christmas day 1841 between two and three o’clock in the afternoon, William Williard saw the accused come out of Arthur McMahon’s house carrying a bundle of clothes. A short time later he saw the man going into the house again and asked him what he was doing. The man said it was ‘nothing to me’. At that time Ann McMahon ‘was lying on the bed asleep’ and the back door was wide open. Williard reported the matter to Constable McKeever. When Ann woke up she was told what had happened and looked in her box. Much wearing apparel was missing and also a pistol. The depositions are in VPRS Series 30P – Box 185 – N.C.R 14.

When Mrs McMahon was called at a witness at the trial, she gave her evidence in a confused way and Const McKeever of Geelong was then called. Willis questioned him as to whether the woman was sober. McKeever told Willis that Mrs McMahon was a confirmed alcoholic, and an inveterate drunkard, and was well known as such in Geelong. Willis then directed an acquittal. Mrs McMahon was then sentenced to 1 month for ‘contempt of court in appearing before me in a state of intoxication’ (Port Phillip Gazette, 16 February 1842).

John Cousins is identical with the George Wellbank tried for Assault later this same day (see Mullaly p. 95).

12. Transcript of Trial of Mary Saunders for Uttering a forged cheque

Willis Note Book No 13 page 22

Feb’y 15. 1842

Mary Saunders – Utter’g Forged Cheque

Abraham Levy – Geelong. Storekeeper –

on 15th of Dec’r Pris’r came to my Store – Note presented by the Pris’r – I gave Prop’y for it – it was forwarded to the Bank & returned to me – Pris’r said Buckly & Co were Settlers at Portland Bay – She did not take the Bill from them but from some person she knew – I told Pris’r I sho’d not have accepted it unless it been bro’t by a person I knew –

X’ed

I am not prepared to say that there is no such person as Buckley – Pris’r co’d not write – Pris’r co’d not read writing –

N Gresley –

My writ’g on the Cheque. No person of the name of Geo. Buckly has an Acc’t at our Bank –

X’ed

It has occurred that persons have drawn upon us hav’g no funds or Acc’t –

Edw’d Henty Esq’r J.P. Sworn

No such person as George Buckley & Co that I know of in Portland Bay or that District –

Patrick McEver –

C.C. Geelong – Apprehended the Pris’r No person named Geo Buckly in the vicinity of Geelong –

Wm Booth Sworn

I live 12 miles from Geelong – Note Kicking ab’t at the Back of the House

Wm Wright Sworn

Lives with last Wit’s – 23 Dec’r Pris’r said she had found a bit of Paper – I said

Not Guilty –

Commentary

Saunders was ‘a girl of about 15 years of age’ (Port Phillip Patriot, 17 February 1842).

Gresley was employed by the Union Bank in Melbourne.

Neither Booth nor Wright were prosecution witnesses at the committal and I have the impression they were called as defence witnesses on the trial.

In his charge to jury Willis said forgery was second only to murder and he was determined to put a stop to it – sometimes jurors thought the penalty was too severe and strained consciences to return verdict favourable to the accused (Port Phillip Gazette 16 February 1842; (see Mullaly p. 619).

The remainder of page 23 is blank.

13. Transcript of Trial of George Wellbank for an Assault on a Constable

Willis Note Book No 13 page 24

Feb’y 16th 1842

George Wellbank – Assault on Constable

Patrick Ryan – Sworn

Constable at Geelong – knows the Pris’r – on the 25th of Jan’y in the Even’g I was on duty accompanied by Constable Roche at Nth Corio – we heard a fight in the Commercial Hotel – We went in & the two men that were fighting we took in charge (the Pris’r was not one) we took them into Custody – When Pris’r hit me a Kick in the Fork – we came out & Roche was Knocked down & I saw Pris’r leaping on him when he was down – he leapt on him once & ran away.

X’ex’

Pris’r was stand’g in the Bar – there were other persons in the Bar – There were people in the Room when the men were fighting- Some of the People in the passage, & some came out of the Room – I did not see Moor in the passage – I sho’d know him

Were I to I got one cut before I went to the Assistance of Roche –

Edward (or possibly Edmond) Roche Sworn

I am a Constable at Geelong – I recollect the night of the 25th of Jan’y last I was in company with Ryan on duty – I went into the Commercial Hotel – I saw two men fighting Ryan took one & I took an’r. I know the Pris’r he was not fighting. I saw him kick Ryan in the Fork – betw’n the Bar & the Parlour as he was com’g out of the Parlour – had a Pris’r in charge at the time – Pris’r leapt on me after ?Girley (possibly Gurley or Gunley) knocked me down – I had a Pris’r in charge when Girley knocked me down – I am cert’n the Pris’r is the Man –

X’d

I went into Robinson’s House – Some people in the passage – The man Ryan took made every resistance in his Power when in the Power –

(Ryan describes the Manner in which he was kicked & the way in which he had the Pris’r)

I knew the Pris’r since April –

Defence

Pris’r not the man who comm’d the Assault –

John Moore –

Disturbance at Robinson Public House – lives near – I was at Work in the Bakehouse & heard a Row at Robinson’s – I went into the Bar – GeorgeWellbank was at the Bar stand’g with his hands in his Pocket smoking a Pipe- I rem’d in the Bar till the Constable came into the Bar & went into the Room where the fight was going. I came out & Wellbank was before me – along side of Wellbank within two feet or two feet ½ of two Constables inside – Roche came out first. I am positive – he was knocked down – I positively swear that Wellbank did not jump on Roche when knocked down – Nor co’d he have struck Ryan – he was as far as 4 or five yds from them at the time –

X’d

I have been acquainted with Pris’r 12 mo’s. Liv’g at Geelong for two years – I came out of my own bakehouse & went into Robinson’s Bar – I sho’d be a looser if Wellbank were convicted – I attend’d Geelong for 15 days – Wellbank was courting a young woman He was bound over to keep the Peace I was his Surety it was because the young woman swore she was in fear of her life –

Ryan recalled & confronted with Wit’s – Denies most positively the correctness of his Statement –

Tho’s Harrison – Sworn

I am a Hairdresser I live at North Corio – I was walking up the Street when I heard the Disturbance in the Commercial Inn – I went in – I saw Mr Moore & Wellbank stand’g near the door – I saw the Constables come into the House – I was stand’g at the Bar & Wellbank & Moor near him – Marley – Moor – Wellbank the Bar Man & myself Wellbank was stand’g with his hands in his Pocket smoking his Pipe – Moore & Wellbank went out. I went out thro’ the Bar on the front way They co’d have gone back to the Bar with’t my seeing them. I did not see the Pris’r molest the Constables while I was there – he co’d not have done so with’t my seeing. The Constables were going out when I went out they were at the door when I went out they had a Man – I did not see them Attacked – I must have seen them if they were so – Roche & Ryan – I think Roche went out first – I think there was resistance –

X’d

The Parties went out of the Bar door – I went out of the front door – Wellbank did not go with me – he went with Moore out of the Bar door – Roche & Ryan were the two Constables –

Ryan – I did not see either Moore or Harrison in the Public House when I went in, nor while I was, nor after I came out – they co’d not have been at the Bar with’t my seeing it with’t they were under the Counter –

Roche

I don’t recollect seeing them – If they Moore & Ryan had been at the Bar when I went in I must have seen them – I did not see them com’g out of the House, but I saw them ab’t an hour or two after in the Street – Ryan went out first –

Ryan

I went out first. I swear that positively.

Tho’s Tomlin

I live at N’th Corio next door to the Commercial Inn ab’t 3 weeks ago – I heard a noise there – I went out of my own door the Riot was in the Parlour – I saw Pris’r & Moore come out of the House together – I saw the Constables – I co’d not say which of them it was. Ryan or Roche the first was com’g out backwards dragging a man after him. Wellbank & Moore had previously left the House – Wellbank spoke to me as he came – I saw them the whole time the riot took place I was not inside – I had my Eyes on Wellbank the whole time he did not interfere with the Constables – he co’d not have done so without my seeing it – I saw them remaining together till the Riot was over –

X’d

I was stand’g at my own House I co’d not see what occurred in the House – I only speak to wh’t I saw – I swear positively that Wellbank co’d not have leapt on Roche outside the House or at the Door with’t my seeing it – I saw Ryan fall – I co’d not say wh’r with a stone a Stick or a Brick –

Daniel Marley

I recollect a disturbance at the Commercial Inn ab’t 3 weeks ago. I went with Harrison – There appeared to be a noise in the Parlour – I saw Ryan & Roche go in the House –

Juror Withdrawn

Judge Willis’ account of the trial ends at this point.

Commentary

George Wellbank is identical with the John Cousins tried for Larceny on 15 February 1842 (see Mullaly p 95).

The Police were probably in the course of attempting to arrest Sylvester Newton when Wellbank intervened. Newton was charged with assault that same night but escaped from the Watchouse on 27 January 1842. He was recaptured and tried and convicted before Justice Willis on 16 May 1842 (see Willis Note Book No 13, p.73).

‘Edward (or possibly Edmond) Roche’ – his name is sometimes given as ‘Edmond Roach’in other cases.

On 24 July 1841, at the Geelong Petty Sessions, Theresa Carey charged Geo Wellbank with threatening her life if she did not marry him and for assaulting her. He was bound over in the sum of 50 pounds to be of good behaviour with two sureties, George Abbott and John Moon, each in the sum of 20 pounds. This recognizance was attached to the depositions relating to the assault on the Police (see VPRS 109 Unit 1, p. 461-2; VPRS Series 30P Box 185 NCR 21).

It would seem that the defence witness, John Moore, was identical with John Moon and that his cross-examination before Willis related to this earlier assault. ‘Ryan recalled & confronted with Wit’s’ – a prosecution witness could be recalled during the Defence case if a Defence witness gave evidence about some incident which had not been raised in the Defence cross-examination of that prosecution witness. This practice explains why Willis again has notes of evidence by Ryan and Roche during the Defence case.

During the defence case Willis commented ‘there is perjury here’ and sent for the Court Registrar to take down the evidence. At this point one of the jurors was ‘indisposed’ and Prosecution and Defence counsel (James Croke and Erskine Murray) consented to the withdrawal of a juror which Willis said was tantamount to an acquittal (Port Phillip Herald, 18 February 1842).

The remainder of page 29 is blank.

14. Transcript of Trial of John Levy for Larceny

Willis Note Book No 13 page 30

Feb’y 16 1842

John Levy – Larceny

John Pagan –

I lost a Watch ab’t the 22nd or 23rd of Dec’r – I came from the beach with H’y Hughes – I lodged in a Hut – I had my Watch at Night I co’d not find it in the Morn’g. (Watch produced) I went to bed about 12 & got up at day light – I swear the Watch is mine –

X’d

I know the Watch by the Watch Paper & by the Open’g. I rem’d in Town all day – I don’t know the Pris’r – a Man came into the Hut & lighted his Pipe – H’y Hughes slept with me he was asleep when I went to bed & asleep when I awoke I felt a Man when I asleep – I think my Watch Pocket was next to H. Hughes – Pocket cut from inside

John Waller Sworn D.C.

I know the Pris’r I took him into Custody ab’t 2 oclock in the Morn’g of 16th of Jan’y in a back Skilling of Hamond playing at Cards near the new Post Office – I found this Watch in the possession of Pris’r when contriv’g to pass the Watch to a female the Wife of Hamond – Identity of Watch – In the Police Ofice Pris’r said he had bo’t it from a female of the name of Hill & she was gone to Sydney – I am positive I found the Watch in Pris’r’s Possession –

X’ex’d

To the best of my belief Pris’r said to the Woman to take this (mean’g the Watch) Three or four Watches pass’g at the time – night Auctions – I don’t think the Pris’r is in the habit of buy’g at night Auctions – Sometimes Parties remain ?out?cut? of stolen property some length of time – two Months –

Lydia Hamond

We keep an eating House On 16th of Jan’y the Pris’r was at our House – I was in bed – I was awoke – I was not out of the House –

Anna Hill

I have seen the Pris’r I never sold him a Watch –

Not Guilty

but found Watch improperly come by

Commentary

In the depositions the surname ‘Levy’ is given as ‘Levi’.

After the Police had raided these premises, William Hammond was charged with Keeping a disorderly house situate in Little Bourke Street at the rear of the Post Office but James Croke did not proceed with that case (VPRS Series 30P Box 185 – NCR 18).

Juries sometimes added riders such as ‘but found Watch improperly come by’ to their verdict as an indication that they thought the prisoner might be guilty of some other offence e.g. Unlawful Possession.

15. Transcript of Trial of Henry Mallett for Larceny

Willis Note Book No 13 page 32

Feb’y 16th 1842

H’y Mallett Larceny

Tho’s Roe Sworn –

Carpenter at Geelong in Mr Fisher’s Employm’t – I had 4 Boards in the River which had been warped – I put them there to straiten them – I can swear to the Boards – I saw them afterw’ds at Corio lying along side of a Wall of a House which one Freeman I think lived in. I have seen the Pris’r before – When I missed the boards – the boards were secured by three heavy stones – I missed them – Pris’r was taken up by a Constable 50 or 60 feet from where the boards were found –

X

The boards were lying in the Open Street –

David Fisher Sworn

I directed the last Wit’s to put some Boards in the River – I found them afterw’ds at the side of the Pris’r’s House – I asked Mallett how he came by the Boards – he s’d he purchased them from a person on the other side of the Township –

X’ex’d

I reside at S’th Geelong I am in Partnership – Boards were not attempted to be concealed when I found them – Never spoken to the Pris’r before I spoke to him ab’t the Boards – I understood afterw’ds the Pris’r was not the person who stole the Boards –

P’k McEver – Sworn

I am C.C of Geelong Pris’r lives at N’th Geelong – I took him into Custody – Pris’r said the Boards were his – he purchased them but he did not know the man’s name – he said he purchased them for a Pot of Porter –

X’ex’d

I have always taken the Pris’r to be a decent respectable young man – I did not see the Boards at the House where the Pris’r resides –

Defence

Jane Hyde Sworn –

I was washing at the River ab’t the 17 of Jan’y & I took the boards out of the River they were floating down at the time – We washed them – left them on the Bank – We returned & took them up to our House – I put them by the side of the House – Close to McEvers –

Not Guilty

Commentary

P’k McEver was Patrick McKeever, then Chief Constable of Geelong.

The sale of goods for other property rather than cash was not uncommon among individuals at this time.

People sometimes disposed of waste by putting it in a river so that it would float out to sea and others salvaged what they thought might be useful.

16. Transcript of Trial of Richard Salisbury Rossburgh for Obtaining goods under false pretences

Willis Note Book No 13, page 34

Feb’y 16. 1842

Wm. Salisbury Rossburgh – False Pretences

Plea Not Guilty

Wm Dawson Sworn

Pris’r was in my house five days & a half House five days & a half I supplied him & two friends with Meal drink & lodging – I drew a Cheque on the Union Bank by Pris’r ‘s desired which he signed – I sent it to the Bank & it was refused –

X’ex’d

Cheque given after the goods obtained –

John Ward –

Lives at Williamstown – I took a Cheque from Dawson to Union Bank –

N. Gresley Sworn

Cheque was presented for Paym’t signed by Rossburgh – had no Acc’t at the Bank since I have been there for two years –

Re’ex’d

Pris’r lodged no Mo’y since –

Guilty –

Recommend’d to Mercy –

Commentary

Rossburgh is given the surname ‘Roxburgh’ in the depositions relating to this case and in the CRB where his status is given as ‘Free’.

William Dawson had the Albion Hotel in Williamstown.

Some people, who were generally illiterate, could sign a document and it was not unusual for publicans and shopkeepers to write out the detail on a printed cheque and then have it signed by the customer.

Roxburgh was sentenced to be imprisoned for 2 months. The Port Phillip Herald of 18 February 1842 reported that Erskine Murray, as amicus curiae, adduced evidence in mitigation of sentence but no detail is given about that material. One can only speculate whether Murray actually appeared as amicus curiae during the trial and lead some evidence of character which lead to the jury making the recommendation to mercy.

Roxburgh was again convicted of obtaining goods under false pretences on 17 May 1842 and sentenced to be transported for 7 years (see Willis Note Book No 13, p. 93; Mullaly pp. 644-5).

17. William Jarvis – obtaining goods under false pretences

Feb’y 16- 1842

Wm Jarvis –

Guilty –

Two months Impris’t

The remainder of page 35 is blank.

Commentary

At the Committal proceedings, held before Major St John JP on 22 January1842, Thomas Daly swore that the prisoner lived at his house for 4 weeks at one pound per week. On 20 January 1842 the prisoner gave him a cheque on the Union Bank for 4 pounds. He saw the prisoner write his name on the cheque. It was at the Governor Arthur Public Home in Little Bourke Street. Nigel Gresley gave evidence that the prisoner had never had an account at the bank. (VPRS Series 30P – Box 1 – 1-10-12).

Jarvis’ status is recorded as ‘Free’ in the CRB and he was sentenced to be imprisoned for 2 months.

18. Transcript of Trial of William Watts for Stealing from the person

Willis Note Book No 13 page 36

Crim’l Sessions

March 15th 1842

Wm Watts – Stealing from the person

John McRuddock Sworn

I live in Melbourne on the 2nd of March I went to the Races I lost my Pocket Hankerchief it was taken out of my Pocket by the Pris’r I knew wh’t I was ab’t at that time – I charged the Pris’r to the Constable with steal’g my Handkerchief I saw it in Pris’r’s Hand –

H’y Rose Serg’t in Mounted Police –

On the 1st of March I was on the Racecourse under the Order of Major St John as Police Magistrate – I saw the Pris’r take the Handkerchief out of the Pocket of the last Wit’s – he put it behind him. Last Wit’s – complained – A good many Pris’rs handcuffed on the Chain –

Nat’l Nathan Sworn

I recollect the 1st of March I saw the Pris’r on the Chain – He held it in his hand – he concealed it behind his back –

X’ex’d

I saw

Not Guilty

Commentary

This was one of the many incidents which occurred at the race meeting held on 1 March 1842. Those arrested and taken into custody were handcuffed to a long chain attached to a tree. It was a very hot day and many citizens objected to the way these prisoners were been treated (see Mullaly, p. 72).

In his defence Watts said he took the handkerchief to wipe his face which was bleeding from a blow of a constable – Willis said there should be other means than chains to secure people (Port Phillip Gazette, 16 March 1842).

19. Transcript of Trial of Thomas Mason for Larceny

Willis Note Book No 13 page 37

March 15. 1842

Thomas Mason – Larceny

Wm McAulay – Sworn

I live near Mr O’Cock’s ab’t ¼ of a Mile – I know the Pris’r He was work’g Mr Shanks 5 or 6 days ago – Pris’r comes every Morn’g from Shanks’ place in Town to Shanks in the Bush – I saw him take a Basket out I saw nothing in the Basket – I co’d not see wh’t was in it – When I open’d the gate Pris’r got some Turkeys out of the Basket 2 I believe – I took some Turnip Tops for the Turkeys I co’d not say wh’t colour they were – I wo’d not know a Turkey if I were to see one – I know a Turkey from a goose – I believe they were Turkeys – I saw him let’g the Turkeys out –

X’ex’d

I help in the garden Mr. Budd has got Turkeys – I never saw them come down since I have been there –

per Jury–

He Pris’r lifted the Basket carefully down to let the Turkeys out –

Rob’t Hancock – Sworn

I reside at Mr Shanks’ ab’t 2 miles from Melbourne I know Pris’r I saw him at the end of the 8th or 9th of that day – Shanks does not keep Turkeys at Richmond – I saw a pair of Turkeys at the Police Office – Turkeys produced

X’d

A great many Turkeys of a similar kind kept in the neighbourhood & wandering ab’t – Cant swear to the Identity of the Turkeys –

John Bullivant

I missed two Turkeys on the 8th Ma’h from little Collins Street ab’t 8 oclock in the Morn’g – I sent in search & searched myself Next day I rode to Shank’s Farm – I know the Pris’r he has been in the habit of com’g to my yard to take Manure out – I turned him out of the yard the Morn’g the Turkeys were miss’g & said I wanted the rest of my Manure – I found these two Turkeys (produced) at Shank’s Farm Swears to Turkeys – They knew him –

X’d

The Morn’g of the 9th I dismiss’d him – he might have been in my y’d on the Morn’g of the 8th

Case –

Defence

Margaret May – Sworn

I live Serv’t with Mr Shanks in Queen Street – I was at Mr. Shank’s on the 8. I saw the Pris’r there that day I saw him that Morn’g ab’t ½ past 6. getting a load of Manure – he went away ab’t 7 – when he went away – Shanks’ Stat’n ab’t 2 Miles

Per Juryman

I saw him depart for Mr Shanks Stat’n straight – for the stat’n – Passage leading from Shanks’ back Prem’es only a Short distance from Bullivant’s – I did not follow the Pris’r I saw him opposite the door – I saw him filling the Cart with Dung – Could not go to Bullivant from Shanks’ in five Min’s – I did not see the Cart in the Interval from going from the back to the front door –

John Carstairs – Sworn

I live at Shanks’ I was there on the 8 of this month – I was up early Pris’r was at Shanks’ that morn’g. I saw him load his Cart – he went before seven – after loading his Cart he had a small glass of Brandy – I never saw him drink on a Morn’g before – He went tow’ds Shanks’ Stat’n He might have stopped in the Neighbourhood with’t my seeing him – If there was a Basket it was concealed –

X’d

I saw him leave the yard – I was S? this Morn’g – I am Clerk & Barman to Shanks I did not speak to last Wit’s ab’t this matter – I did not see Pris’r go out of the Yard – I know nothing of Pris’r’s departure from the yard – Per Jury – Pris’r employed by Shanks – he did not go thro’ the yard – He must have had the Turkeys before he left the yard if he had them

Guilty

Three months Impris’t – hard

labour – two last mo’s alternate

Weeks on Treadmill –

Commentary

John Shanks had the Royal Highlander Hotel in Queen Street.

Mason is recorded in the CRB as FS.

20. Transcript of Trial of William Calver for assault with an intent

Willis Note Book No 13 page 40

March 15th 1842

Wm Calver – Assault with an Intent –

Plea Not Guilty –

Janet Buchanan Sworn

I remember 22nd of Feb’y betw’n 7 & 8 at night I saw the Pris’r at the River side, quite positive it is the Pris’r – I was going home & I saw him trying to do another girl, trying to get her down – I passed on & he came up to me put his hand round my neck I told him to be going he never minded but knocked me down took me by the Neck – after he got me down he punched me with his feet & hands – he was apparently in liquor – after he knocked me down he got my Clothes – he did not effect his person I shreaked & raise the alarm – My new which I had in my apron were from me when I rose – when he heard the alarm he got up & took my new shoes & ran off to the punt – he dropped the Shoes when I made an Alarm for them – I went after the Shoes & he knocked me down again I am positive the Pris’r is the Man – When he knocked me down a second time I shrieked & a Man on Horseback came up – When the Pris’r saw the Man com’g he ran for me – he jumped into the River & swam across – he left his hat behind him – It was a Straw Hat –

X’ex’d

When I first came down to the River I saw you doing that girl.

Per Juryman

It was moonlight – I saw the Pris’r the next morn’g at the Police Office –

Ronald McKenzie Sworn –

I recollect the 22nd of Feb’y – I saw the last Wit’s ab’t 8 in the Even’g. I saw the Pris’r – he walked pretty fast I stood at the foot of Elizabeth Street, I saw the Pris’r & an’r man Struggling – Pris’r disengaged himself & ran towards the River – last Wit’s was in a very bad State so much knocked about – Pris’r had a Jacket & Trowsers on – Shirt partly out of his Trowsers – he was worse for liquor – Pris’r had a straw hat on when he passed me in Eliz’th Street – I heard cries proceeding from a Woman – J Buchanan said she had been abused –

X’ex’d

I did not push ?? the River – I did not run away with his hat

Mary Welch Sworn

On the 22nd of Feb’y I was stand’g on the pav’t near the House where the Single Women are kept – he strucked me – I pursued him I asked him why he ill used the girl – I saw a Hat, a Straw Hat – Pris’r’s Hat produced Swears to it

Defence

I never did the like –

Commentary

‘the House where the Single Women are kept’ – this is a reference to the accommodation provided for recently arrived Single Women migrants.

Calver is recorded in the CRB under the name ‘William Calver (Calvert)’ and as FS. He was convicted of Assault to Rape and sentenced to imprisonment for 2years and kept to hard labour and for 3 months with intervals of a fortnight to be worked on the treadmill.

In Willis’ papers there is a Copy of a petition of William Calver dated 9th March 1843 – it alleges he did not know he was committing any offence – ‘all he recollects is his pafsing a joke with a female and I believe she is fully aware that his intentions were not criminal but merely occasioned by the excitement of the moment’. He points out he has done 12 months and ‘the confinement he has already suffered will be a warning to him as long as long as he lives’. Wintle, the gaoler, certified Calver ‘well conducted’ in gaol. On a fold Willis has noted ‘March 1842 No3 assault with intent to rape’ (Willis Papers RHSV Box 55).

It is not known what view the Executive Council took of this petition.

21. Transcript of Trial of Patrick Foley for Forgery and Uttering

Willis Note Book No 13 page 42

March 18th 1842

Patrick Foley – Utter’g Forged Cheque

1st Forg’g defr’d drawer

2nd Utter’g defr’d Do.

3rd Forg’g to defraud Mortimer

Utt’g to defraud Do

Nigel Gresley Sworn

Teller at the Union Bank (proves Cheque) I saw it before at the Bank & at the Police Office. It was in the hands of Mr Mortimer the Innkeeper when I saw it at the Bank, it was presented to me for Paym’t – I did not pay it – Peter Sleiglitz has an acc’t with us – the R’t Steiglitz whose name is signed to the Cheque has not an Acc’t with us – & the signature to the Cheque is not the hand writing of the person who keeps the acc’t with us

X’d

There are sev’l Steiglitz – in the Colony – one R W. Steiglitz – I sho’d not have paid it – . The signature on Cheque is not at all like that of R. W. Steiglitz –

Wm Mortimer Sworn

Innkeeper – I recollect the 12 of March seeing the Pris’r in my house he called for a Pint of Rum – he gave me the Cheque to pay for it & give the change. Ab’t 4 oclock after the Bank Hours. He told me it was the signature of R’t Steiglitz the Settler to the Cheque – I wo’d not Cash it until I knew wh’r it was Correct. Pris’r came in the Morn’g before I was up to go (to) the Bank with me – before Bank hours – I went to the Bank Pris’r did not come with me or return to my House till he was bro’t afterwards – I found at the Bank it was a Forgery

X’ex’d

Pris’r was at my House the day before with an order from Capt’n Robinson to get a bottle of Robinson – I saw the order – I gave the Rum on acc’t of Capt’n Robinson’s order – Capt’n Robinson was in & out of my House every half hour –

Pris’r was engaged with Capt’n R’s Sheep –

Wm Wright Sworn

Late Ch Constable – I received Informat’n &went in Pursuit of the Pris’r & caught in the Bush between the Stock yards & the Flag Staff I bro’t him back to Mortimer’s – Mr M then produced the Cheque in the presence of the Wit’s he said he had an’r Cheque of R. Steiglitz the settler – I said it was not – Pris’r said it was right –

X’ex’d

Pris’r refused to let me Cash the Cheque – He said he wo’d leave it in Mortimer’s hand –

Mr Murray

No doubt as to the Utter’g

Old Soldier

Alex’r Robertson –

I know the Pris’r ab’t 8 or 10 Weeks in my Service – Pris’r a foolish fellow –

Guilty on the 4th Count

Tr. for life –

Commentary

Patrick Foley exercised so many challenges of those on the jury panel that, after some jurors had been sworn, the panel was exhausted and James Croke had to pray a tales ie obtain an order from the Court that the Deputy Sheriff was to go out into the street near the Court House and find sufficient eligible jurors to ensure that a jury of 12 men could be sworn for the trial (Port Phillip Patriot, 21 March 1842).

One can only assume that Willis noted the spelling of the surname’ Steiglitz’ in that form because it was the way the name was spelt on the cheque produced in court. In fact, the many members of that family, then in the Port Phillip District, spelt their surname ‘von Stieglitz’.

William Mortimer had the Crown Inn which was on the corner of Lonsdale and Queen Streets.

The ‘Captain Robinson’ to whom William Mortimer referred and who gave character evidence in the Defence case was probably the Alexander Robertson who was a settler in the Portland Bay area (Billis).

In his final address, Eskine Murray referred to Mary Saunders case (above) as indicating cases where a forged document fell into hands of an innocent party. He also said that Foley was an old soldier who had received wounds in the head and sometimes didn’t know what he was doing.

Foley is recorded in the CRB as ‘Free’. He was sent to VDL.

This case is reported in Port Phillip Gazette 19 March 1842; Port Phillip Patriot 21 March 1842 and Port Phillip Herald 22 March 1842 (see Mullaly pp 111, 619-20).

22. Transcript of Trial of John Sharp for Stabbing

Willis Note Book No 13 page 44

March 18th 1842

John Sharp – Stabbing

Cha’s Wentworth – Sworn

On the 14th of this Month in the night I saw the Pris’r in Flinders Lane – 4 Gent’n with me – ab’t one oclock on the Morning of the 15th. We were walking down the street quietly & my impression is that the Pris’r met us (I am sure it is the same Man) & began using most violent language towards Mr French – Mr. F? my opinion was sober – Mr. F. desired him to go home – I went to the man & told him to go home – he stabbed twice in the Abdomen & one on a p’t of my Arm – The 2nd time I felt it I kicked at him – The Gent’n surrounded him – The Constables took a knife from him, I gave him in – I did nothing nor did any of my party to provoke the Pris’r. I believe he was sober –

X’ex’d

It took place in Flinders Lane – Pris’r was on the footpath & we were in the road – he made use of most violent language to Mr French – I went up to the man to beg him to go home – I will swear Mr French did not strike the Pris’r

David French Sworn

I was in Flinders lane on the Morn’g of the 15th Ins’t. I saw the Pris’r there – near one oclock in the Morn’g. I saw the Pris’r that Morn’g. I was walking home & the Pris’r asked wh’t I wanted keep’g a row that time in the Morn’g – Pris’r first of all insulted me – I walked on & heard Mr Wentworth cry out he was stabbed –

X’ex’d

I saw a Part of our Party knock at No. 4 –

Mich’l Kearns Sworn

I was in Flinders lane on the Morn’g of the 15th Mr. Wentworth charged the Pris’r with stabb’g him I took him into Custody – I did not observe any blood on the Pris’r I gave Pris’r to the Watch House keeper – there was a scratch on the Pris’r’s Chin it was bleeding The Pris’r said he was knocked down –

Arthur O’Mullane – Sworn

I saw Mr Cha’s Wentworth he had wounds on his person one on the outer p’t of his right arm on the Elbow & 2 on p’t of his R’t side & his belly – he did not bleed much the Wounds were not dangerous

Constable recalled

Knife – I took it out of Pris’r’s Pocket –

Defence

Wm. Wright Sworn –

No. 4 in Flinders Lane is a notorious Bawdy House & Grog Shop –

Not Guilty-

Commentary

Willis asked Erskine Murray to act for Sharp who claimed he acted in self defence.

Michael Kearns (Kerns, Kerins) was a constable; Arthur O’Mullane was a doctor who resided in Queen St. Wm. Wright had been Chief Constable in Melbourne and was probably a publican by this time.

Willis told the jury that words ‘however strong’ do not justify an assault. The Jury acquitted Sharp but remarked that he was guilty of common assault which was not on the indictment (Port Phillip Gazette, 19 March 1842; Mullaly p. 392).

23. Transcript of Trial of Tempest Parker for Stealing

Willis Note Book No 13 page 46

Crim’l Sessions

April 7th 1842

Tempest Parker – Larceny

Plea Not Guilty

Christina Larimour Sworn –

I am a Widow liv’g in Flinders Street – Pris’r was in my Service in Nov’r last for six or seven Weeks – he left sick & returned in a Fortnight – While he was with me I missed Wine & ale – Pris’r slept in the Stable loft over the cellar – he co’d have access to the cellar by tak’g up the boards of the floor – they co’d be easily lifted – I discharged the Pris’r for Idleness & appear’g stupid from drink – I have seen him more than 2 or 3 times drunk – I swear my Son bro’t to me the Bottles prod’d – I missed Bottles from my Cellar the night before – Porter I recollect the Ev’g of 25 of March Friday night – I saw the Pris’r com’g down from the loft where the bottles were found & where he used to sleep when in my service – he was overtaken –

Hugh Larimour Sworn – (first Ex’d as to Oaths)

I recollect 22nd of March I saw the Pris’r that Even’g I recollect the 25. of March I was told to go with the Serv’t to fasten a door thro’ which my Mother suspected Pris’r got into the loft – While we were nailing up the door we heard a rustling in the hay in the corner of the loft – Mr Pole’s Serv’t was called down – I continued & nailed up the door & Pole’s Serv’t returned, we came down & locked the Stable door – We went into the Kitchen – then we went up & searched the hay Pris’r rose up & concealed himself again – betw’n 9 & 10 in the Even’g – We saw the Pris’r leap from the loft – we went up & found the door torn open – We found empty bottles All empty except one – These are the two bottles – I gave them to my Mother –

X’d

I bro’t porter & ale into the Stable – not more than six bottles during his stay – I gave it to the Pris’r –

George Muldorf Sworn

I live at Mrs Larimours – Mr Pole’s Serv’t I know the Pris’r I saw him in the Stable loft on the 25th Mrs Larimour desired me to go to the loft with her Son & nail up the Door in the loft – while doing so we heard some rustling noise in the hay – swear language – I returned Mr Hugh had come down & was lock’g the stable door – We went into the Kitchen – took a light & went up into the loft – I gave a hard nock & the Pris’r rose I am sure he is the person – ab’t 9 or 10 oclock – Pris’r was not in the Service of Mrs. L. at that time – I saw ab’t 1 Doz bottles in the Stable –

Alice Dunn Sworn

I live with Mrs Larimour I recollect the 20th of last Month – I recollect seeing Pris’r on the 20th of March – he was not then in Mrs. L’s Employm’t he was walk’g – he appeared to come from the Stable –

For the Defence

Wm Craig Sworn

Pris’r behaved well dur’g the Voyage with us – I did not think he wo’d have committed the Crime of which he is accused –

Not Guilty

Commentary

The depositions indicate that Christina Larimour was the owner of a boarding house in Flinders Street.

Willis’ note ‘Hugh Larimour Sworn – (first Ex’d as to Oaths)’ would indicate that Hugh was a child, probably under 14 years of age, and that it was appropriate to test whether he was competent to be sworn.

Craig’s evidence apparently included the fact that Parker’s father (dead) had been a respectable attorney and Parker would be entitled to considerable property on coming of age. After the acquittal, Willis commented to Parker about the evils of drink. (Port Phillip Gazette 9 April 1842). None of the surviving material reveals Parker’s age at the time of his trial but the reference to ‘on coming of age’ would indicate he was then under 21 years of age.

The remainder of page 48 is blank.

24. Transcript of Trial of Bryan Carroll for Larceny

Willis Note Book No 13 page 49

April 7,1842

Bryan Carroll – Larceny

Pleads Guilty

One Month – 2’d & last Week Treadmill

Commentary

The depositions at the committal, on30 March 1842, of Brian Carroll for the larceny of a bottle of wine reveal that Constable Jacob Wagner went into McGuire’s wine and beer house at Newtown just before 9 pm on 29 March 1842[Tuesday]. Carroll was only person there and McGuire had his back turned. Wagner saw Carroll take a bottle of wine, put it under his coat and walk out. Wagner took him into custody and back into house. William McGuire gave evidence that he had told Carroll to go home “as he had had quite enough to drink”.

Carroll stated that he usually took beer or wine home and on this occasion he was drunk and cannot be sure whether he told Mcguire he was going to take a bottle (VPRS Series 30P Box 1 – 1-10(a)-2).

Brian Carroll is recorded in the CRB as FS and that he was sentenced to 1 months imprisonment and to be worked for the second & last week on the treadmill.

The remainder of page 49 is blank.

25. Transcript of Trial of William Anderson for Larceny

Willis Note Book No 13 page 50

April 7th 1842

Wm Anderson – Larceny

Cha’s Carter Sworn

I know the Pris’r he lodged at my House 6 or 7 Weeks ago. I saw him walk of my House ab’t 7 weeks ago with a pair of Boots on his feet belong’g to Mr O’Brien – & a p’r of Trows’rs I heard O’Brien say he wo’d lend him the Trows’rs & I consid’d he had lent him the Boots – Pris’r only slept one night in my House –

X’d

I consid’d the Boots were Mr O’Brien’s –

Michael O’Brien Sworn

I lodged at Carter’s 6 or 7 Weeks ago – Pris’r lodged there by day – he only slept there one night – Boots prod’d – they are mine – I never lent or gave the Boots to the Pris’r he wore them from the 11th of Feb’y to the 16th of March – I lent the Trowsers on the 11th of Feb’y – He said on borrow’g the Trowsers he wanted to appear decent before Mr Cha’s Manton –

X’ex’d

I never lent Pris’r any thing but Trowsers I did not lend him any Handkerchief – He gave the Boots back when required –

Defence

Mr Williams

Not Guilty

Commentary

Edward Eyre Williams appeared for Anderson.

One can assume from this evidence that Anderson was probably seeking employment with Mr Charles Manton. The depositions add that this was ‘Charles Manton of Western Port’. The firm of Manton & Co were then merchants in Little Collins Street. The depositions also give the detail that the boots were ‘newly footed’ at the time the prisoner took them (VPRS Series 30P Box 185 NCR 27).

26. Transcript of Trial of Thomas Henessey for Stealing from the Person

Willis Note Book No 13 page 51

April 7. 1842

Thomas Henessey – Stealing from the Person –

John Waller Sworn –

I am District Constable I recollect the 19th of March I was at the Watch house on that day – I saw the Pris’r there I came in consequence of informat’n that Man confined had been robbed the previous Even’g. Tho’s Glenham was the man robbed – I had the Pris’r bro’t out of the Cell – he was in the same cell as Glenham – I asked Pris’r if he had any mo’y on his person & he said No – I pulled off his Shoes & found the Pound note produced between the inside & the outer sole of the Shoe – I afterwards searched the Cell where the Pris’r had been sleeping & I found in a pair of Blankets the Pris’r had been sleep’g in 6s in Silver Glenham said he had Silver & a 1 pound note Glenham descr’d the note as being a dirty note of the Union B’k of Australasia –

X’d

Union Bank – Glenham did not state there was any mark on the Note or Silver – Glenham said he had 15s or 16s Four or five other people in the Cell besides the Pris’r

Tho’s Glenham Sworn –

I was in the Watch house on the 18th of March at night – I was put in for being drunk – The Pris’r was there, a few more – I had a 1 pound note & some silver – I can’t say wh’t am’t of silver – Pris’r began to annoy me & after a time I felt him feeling my Pocket – I shifted away from him I suspected he was thinking of robbing me – I put my money in my breeches pocket – he ripped my Pocket & took my mo’y – I know the Note well the only one I had left out of Six – All the mark I co’d find was it was a dirty note of the Union Bank –

X’d

I had my senses in a way that I knew him tak’g the Mo’y from me –I took no notice of the number –

John Guest Sworn

I was Watch house keeper on the 16th of March on that Ev’g Pris’r was bro’t there on suspicion of steal’g a Watch Glenham on the morn’g of the 19th compl’d of hav’g lost a 1 pound note & some silver – I searched the Pris’r & found no Mo’y – he told me he had not a farthing about him.

X’ex’d

I found neither 1 pound or Silver on Glenham who I searched on going into the Watch house I did not do so minutely – I searched he waistcoat Pocket & Jacket Pocket –I can’t search downwards as minutely as others.

Not Guilty

Commentary

The questions about ‘marks’ on the stolen bank note and as to its number were because, at this time, it was common for people to put private identifying marks on bank notes or make a note of the number on it.

One might also infer that Thomas Henessey (given as ‘Hennessy’ in the depositions) was familiar with usual searching techniques in watch houses.

27. Transcript of Trial of Patrick Barry for Forgery

Willis Note Book No 13 page 53

April 7. 1842.

Patrick Barry – Forgery –

Not Guilty

John Levi Sworn

I am a Shopkeeper & reside in Melbourne on the 23rd of March the Pris’r came into my Shop & asked me if I wo’d Cash an order – he booked out to the amount of 2 pounds 15s in goods – The am’t of order was 4 pounds 10. – before I gave the balance of the order I sent round to Campbell & Woolley to see if it were correct – This is the order – I found it was not correct. I took Pris’r to Police –

X’ex’d

Alfred Woolley Sworn

I am a Merch’t Mr McKinnon has an Overseer of the name of R’t Hamilton. I do not think the signature R’t Hamilton is his hand writing. I have frequently p’d orders of his. I wo’d not pay this – The order was presented to me for Paym’t by the Person now in Wit’s Box –

John Cohen Sworn

I am in the Employm’t of Mr Lazarus Mr Levi asked me the 23rd of last month if I wo’d take this order to Messrs Campbell & Woolley – I took it accord’gly –

Defence

I (was) engaged at Mr Woolley’s Ofice 15 or 16 of last Oct’r as Hutkeeper to Mr. McKinnon – I returned after 20 Weeks – I returned & requested to be shifted –

Guilty

Tr. for life –

Commentary

Barry is recorded in the CRB as ‘Free’.

At his committal proceedings Barry stated that he had been a hutkeeper to Messrs McKinnon and in consequence of a dispute had left without being paid. He had walked 170 miles into town and drew the order with the overseer’s name for the amount of the wages being the only way he knew of getting his wages (VPRS Series 30P – Box 1 – 1-10(a)-5).

‘Levi’ is often spelled as ‘Levy’ in documents about this time.

28. Transcript of Trial of Charles Jones for Stifling Justice

April 9th 1842

The Queen v Cha’s Jones –

Stifling Justice –

Misdemeanour

Fra’s Wm. Cobb Sworn

I am a Stockholder Cattle I recollect the 21st of March being in Attendance at the Police Court that day hav’g seen the Def I saw him at the Police Court that day & we conversed that day at the Police Court – I lost Cattle previously I found p’t of them in the possession of Laurence Connaghty – a Melbourne Town Herdsman – he had not at that time been bro’t before the Police C’t I went to the Police C’t to give Evid’ce ags’t Laurence Connaghty – I did give Evidence. In consequence I believe he L.C. was committed to bail – McManus was also ex’d I did not see Jones after I had given my Evid’ce there not until I saw him at the Police in a few days after – the 2’d time I saw him I had no conversation with him – I had two conversations with Jones before I gave my Evid’ce on the day I was ab’t to give it – He knew I believe that I was ab’t to give Evidence – Jones came to me at the Police office & called me out, he asked me if money was any good in this case, if so here is ten Pounds to acquit the Parties. He then went away – he returned again in a little time, & said taking all things into Consideration & the No. of Cattle I had lost, he wo’d give me thirty Pounds if I wo’d acquit the Parties – I made no Answer I never told Jones I wanted to settle the business – If Jones said so it was not true – no other person applied to me – I was summoned as a Witness here for the Prosecut’n in the case of the Queen v Connaghty –

X’d

I did not see any money – I had lost Cattle myself – five out of the seven were

Mr Fawkner’s that I had in charge – I have seen one of my own beasts that was lost – I did not offer to settle the Matter before I went to the Police Office-

F. B. St. John Sworn P.M.

I recollect Connaghty being bro’t before me on a charge of Cattle Stealing & Cobb being ex’d as a Witness – on the 21st of March

Cobb recalled

I first saw Cobb on the 21st of March

Cha’s Brodie C.C. Sworn

I know the Def’t by sight I took him in charge –

Defence

Denies that he ever offer’d any mo’y –

John Rowe Butcher Sworn

I live in Melbourne – I have known the Def’t ab’t 3 yrs – you might have had transactions with Cattle with’t me know’g – you might have had transact’ns with the Town Herdsman Connaghty with’t my know’g, tho’ I generally see Connaghty every morn’g –

Patrick Kennedy Sworn

Shoemaker lives in Melbourne

Guilty –

2 yrs Impris’t. Fine of 100 pounds –

Commentary

See after Lawrence Connaghty’s case.

29. Transcript of Trial of Lawrence Connaghty for Cattle Stealing

Willis Note Book No 13 page 58

April 9th 1842

Lawrence Connaghty –

Cattle Stealing –

1st Cattle Cobbs

2nd Pris’r disposed of them to Cobbs –

Fra’s Wm Cobb Sworn

I recollect the 8th of March hav’g lost 7 head of Cattle at that time – 5 of Mr Fawkners which I had in charge & 2 of my own – I searched for the Cattle & found five of them in the Town Herd 4 of Mr. F’s the other my own The Town Herd is kept in a yard near the Flag staff – I found those five in the bush in charge of Connaghty’s Man – only five be’g there. & two fat ones miss’g I suspected they were slaughtered – I never saw them afterw’ds in Pris’rs Possession – I went to the Inspector of Slaughter Houses – there I found that one of my own Cows had been slaughtered – I knew partly by the Brand the Inspectors gave & a particular Horn – I never saw the Skin I swear that the Horn produced belong’d to my Cow that was lost – Branded with a WS. & IS. Heart & Horse Shoe on off Thigh WS.on the near side

Not Guilty

Commentary

Lawrence Connaghty and Luke McManus were charged at the Police Office before Major St John on 21 March 1842 with stealing cattle, the property of Francis William Cobb. Cobb gave evidence that on 8 March 1842 he missed seven head of cattle from his run – 5 belonged to John Fawkner and 2 were his own. On Friday, 18March, he saw 5 of the cattle in the prisoner’s herd but the herdsman would not give them up. He saw the inspector of stock and discovered one of his cattle had been slaughtered by McManus after the proper procedures had been fllowed. The brands etc were identical.

Norah Nowlan gave evidence of Connaghty selling the cows to McManus and Edward Pearse gave evidence of slaughtering the cow for McManus.

The depositions contain a note that McManus was discharged at the committal. (VPRS Series 30P Box 185 NCR 28)

Croke abandoned the case against Connaghty as there was not sufficient evidence to prove the case (Port Phillip Gazette, 13 April 1842).

The case against Charles Jones was that he was present at the committal proceedings on 21 March 1842 and attempted to arrange with Cobb that Cobb would not give evidence against Connaghty. He first offered Cobb £10 and then increased the offer to £30.

Although Willis has noted the offence as ‘Stifling Justice Misdemeanour’ he was, in effect, using a generic term for the category of offences now known as ‘Perverting Justice’.

The newspaper reports of Jones’ trial indicate that, in his opening address, James Croke referred to the textbook Russell on Crime about the law and referred to the cases of King v Lady Rowley (not reported) convicted of keeping a witness out of the way and to King v Vaughan (4 Burr 2494, 2500) convicted of offering a bribe to the Duke of Grafton to give him some colonial post.

In his charge to the Jury, Willis quoted from Blackstone’s Commentaries on the Law of England that to advise a witness to be mute was a misdemeanour. He also referred to the case of King v Plinton (Plympton) (2 Ld Raym 1377) The passage in Blackstone is in Book 4 at page 126. Willis told the jury that one witness was sufficient taking other corroborative circumstances into consideration. Willis charged the jury that solicitation was sufficient. This meant that the witness did not have to accept the offer (Port Phillip Patriot, 11 April 1842; Port Phillip Gazette, 13 April 1842).

In the CRB, Jones is listed as FS.

Pages 59 & 60 left blank.

30. Transcript of Charles Ellis, Daniel Jepps, Martin Fogarty for Wounding with Intent to Kill

Willis Note Book No 13 page 61

Spec’l Crim ‘l Session

May 11. 1842

Cha’s. Ellis, Dan’l Jepps & Martin Fogarty

Wounding with Intent to Kill

Grievous bodily harm

Severally Plead Not Guilty –

Mr Croke

1st Vict. c85. s.2. Principles. Sect’n 7. principals in 2’d Degree punishm’t all principals –

H’y Fowler Sworn

I recollect perfectly the 29th of last Month – I was one of a Party that went out to the Plenty on that Ev’g – I arrived at Campbell Hunter’s Station between 8 & 9 oclock in the Morning – I went there in pursuit of Bushrangers – I cant positively swear to the Pris’rs – The Party consisted of Mr Snodgrass, Gourley, Thompson, Chamberlain & myself – on my approach’g Mr C Hunters I saw 4 Men Armed, they fired several Shots at us before we did any thing – before we fired a shot – We did not return the fire at that time – or make any Attack on them at that time – I did not myself fire a shot – when I got within 20 yards of Mr. C. Hunter’s Hut I got off my Horse tied him to a stump & proceed’d up to the side of the Hut – I was in the Act of passing round the Angle of the Hut when I received a Shot in the face from the Window of the Hut in which afterwards were found the three Pris’rs at the Bar – I have no doubt the Gun was loaded – The Ball first struck my Nose passed in at the Cheek bone & out near the Ear – I bled profusely – I was senseless for ab’t a Minute – I fell – I co’d not go without assistance to the Men’s Hut – Several Shots were fired from the Hut – I dare say a Dozen before I received my Wound – They fired at us first when we came up to the Huts –

X’d

I approached the principal Hut from the side of the Men’s Hut

Mr Gourleys Sketch referr’d to & admitted by both sides to be correct)

I did not see Mr Gourley when the Shot which Struck me was fired – After I was Wounded I knew nothing of what took place-

Re’ex’d

Wit’s Describes his position when he was wounded – Hit upon that part of the face which was at an Angle with the Window of the Principal Hut –

Per Court

I was within 3 or 4 feet from the Window & close to the Hut when I was shot – I can positively swear it was not one of my own party that inflicted the Wound upon me – the shot came from the Window of the Hut – I saw the flash distinctly –

Per Juryman

There was only one Shot fired when I was Wounded – I was shot from the Window nearest to the Men’s Hut –

Per Court

I sho’d say my Right cheek was protected by the Angle of the Hut – I was trying to look in at the Window to get a shot if I co’d & to expose my person as little as possible. It is just possible two shots might have gone off at the time, I don’t think it

Cha’s John Sandford Sworn

I am a Surgeon I atend’d last Wit’s last Sunday Week at Mr Campbell Hunter’s Station at Wet Lowland near the Plenty I found last Wit’s on my arrival lying on his bed with a Wound bound up very closely – ? for professional Considerations I did not unbind it at that time – I deemed it necessary to stay with my patient that night I consider’d my patient in danger the Wound dangerous to life – I saw the blood through the padding & there was an ousing of the ceromenbrous fluid – The Wound must have almost grazed the brain I have since ex’d the Wound – It was what I sho’d have said immediately had arisen from a Bullet –There was a Wound just under the Eye – the Skin broken & an apperture for an exit underneath the Arch of the temporal bone I sho’d say. Erisypelas frequently follows Wounds of such a nature & is dangerous to life Any such Wound may or it consequences be dangerous to life – I do not yet consider my patient entirely out of danger – From my knowledge of the locality I can’t well understand how the ball co’d well have gone in any other direction – I sho’d say the Sketch is tolerably correct – The Wound is on the left Cheek – I have since found a Wound on the Right Ear also – he did not know it himself, that Wound might have been done by a fall on a Stone – I sho’d be inclined to think the last ment’d wound was more like a wound occasioned by a fall than a bullett –

X’ex’d

The spot was pointed out to me where Mr Fowler was Shot – I sho’d say from the Wound that the shot came from a place very near from the cleanness of the Wound – At 28 yds a Rifle wo’d not make as clean a Wound as at 5 yds –

X

I sho’d say the Wound was made by a party very near from some grains of Gunpowder being in Mr Fowler’s nose – fresh – marks of Gunpowder – It is possible those powder marks might have been from shooting a day or two before –

Cha’s Smeathman Sworn

I live in Town – I know Pris’rs at the Bar – I saw the Pris’rs on Saturday week at Messrs Campbell Hunter’s Station – I was staying there – I saw 4 men 3 Pris’rs on the Saturday I am sure the Pris’rs are three of the four – I know Mr H’y Fowler well – I saw him on the same Morning at Mr C Hunter’s station in company with Mr Snodgrass – Chamberlain Thompson & Gourley – They arrived ab’t ¾ of an hour after the Pris’rs A man since dead & the Pris’r Ellis came up to the Men’s Hut together but Ellis came inside the Paddock Fence & the other came outside – when he Williams dec’d got up to Mr C H’s hut he cried out bail up Gent’n surrender – bail up come Walk up to the Fence – the party bailed up consisted of Mr C Hunter – Mr. Alex’r Hunter – Mr Grimes – Mr Boswell Mr Rumbold & myself – we had Arms but no Ammunition. No others bailed up at the time – Rob’t Jefferys – Mr C. Hunters Ass’d Serv’t came up – Williams asked who he was found he was a Serv’t – by the time we walked up to the fence Jeffs & Fogarty joined Williams & Ellis – the two that first came up cried Hurra come on my lads – the man Ellis when Williams desired us to walk up to the fence said O I’ll make them bail up The B – s we’ll soon make them see what we will do & with that flourished a Pistol over his head They were all well armed with both Pistols & guns double barrelled Pieces – With that the man Ellis tied his Horse to the fence & came through- Ellis stood guard over us – he had a Pistol – full cocked – the guns were placed ag’st the Wall of the Hut Slab Wall – While the man Williams & Jepps stood over us while we emptied our Pockets & unbuttoned our Trowsers – Mr Grimes is a very tall Gent’n – After having desired us to give up wh’t mo’y we possessed, Jepps then walked up to Mr Grimes, he Jepps said I believe there were 4 of you of you Gent’n arived here last night – I believe your name is Grimes. Jepps said come deliver up the 200 pounds – he drew him on one side & told him to accompany him to the Bush at the same time keeping a Pistol in his hand – Jepps was stand’g guard over us with a double barrelled Rifle – When Mr. Snodgrass & the Party of whom Mr Fowler was one were galloping along the Fence they cheered out as they came along to the Pris’rs & Williams to surrender – Jepps threw up his piece & desired the other Men to Arm – To your Arms Men – Jepps cocked his piece & stepped back into the Hut at the door of which Jepps was standing – The Men then rushed out & seized their Arms which were at the door Williams (?) came out, & by this time these Gent’n had arrived at the Hut – Williams had not time to retreat into the Hut & made for the Store – At that time the Pris’rs & Wms had not fired – before he got in he fired at the foremost of the Gent’n which was Gourley, that was the first shot I saw or heard fired by any of the Parties – The Pris’rs as at the Bar were then in the possession of the Hut, (no one else in the Hut not a soul but the three Men) While Snodgrass & Gourley were engaged with Wms in the store where I heard Shots fired & also saw Shots proceed from the Hut in the direction of the store. Mr Fowler by this time had arrived & dismounted, Fowler Chamberlain & Thompson, Williams was the first man that fired – the others did not fire at that time As Mr Snodgrass & Mr Chamberlain went to the relief of Gourley Shots were fired on them from the party in the Hut – (Sketch correct) Mr Fowler tied his Horse to a Tree – & came round the corner of the Hut where there was a Window, half open Jepps was standing at that Window, & Ellis at the other Jepps had his gun presented – a Shot came from that Window apparently from that gun & Mr. Fowler fell – Thompson was behind Fowler – I saw Mr Fowler a few Min’s after he fell, Shots were com’g thick, he said he felt very faint & begg’d me to look at his Ear where there was blood I saw a small Wound inside his Ear I saw blood pouring from the Wound on his Cheek & the tip of his nose – his Cheek was bound up – with that I took him into the Men’s Hut & laid him on the bed – I saw Mr Thompson pick up Fowler & I made to the Back of the Store –

X’ex’d

Wit’s Describes his position when Fowler fell, accord’g to the Sketch – I was ab’t 7 or 8 yards from Mr C. H’s Hut – I heard three distinct Shots to the best of my recollection in the Store – only a door to the Store – it was open at the time I can’t say Wide Open – Fowler was at an Angle from the Store – A Ball if from the Store wo’d go direct into the Cheek from the position of Mr. Fowler to the Store Gourley & the other Gent’n gallop’d up to the Hut – Pris’rs had got into the Hut Williams was retreating to the Store – There was no volley fired by the Bushranging Party prior to their entering the Hut – Mr Alex’r Hunter was only person behind the Store – No one behind the Principal Hut – Snodgrass Gourley & Chamberlain were in the Store Williams was in the Store – No others of Fowlers party came up at that time during the fight – during the time the shots were fired – 40 or 50 gent’n came up afterwards –

Per Juryman –

I did not see Fogarty fire – Ellis fired from the other Window –

Robert Jefferys Sworn

I am in the Employ of Mr C Hunter on Saturday the 30th of April ab’t8 in the Morn’g Williams came up(the man that was shot) to Mr C H’s Hut & told my Master & myself to stand up to the fence or he wo’d blow our brains out – he presented a gun – I saw all the Prisoners there – Williams was at his breakfast in the Hut the others outside & I heard a Call “To Arms” All the Pris’rs took up their Arms & said come on to the approaching party – Mr Snodgrass & others ab’t 20 yds off – & the Pris’rs fired at them ab’t 2 Volleys – I was in the Hut when they fired from outside the door at the Party com’g up – no other man in the Hut when the Pris’rs got into the Hut – I saw Mr. Fowler fall – I was at the Corner of the Store when he fell – I saw a Shot fired out of the Window of the Hut when Mr Fowler fell –

X’ex’d

Several Shots fired by the Bushrangers & the opposite party too when I was com’g out of the Hut – When I came out of the Hut I placed myself with the other gent’n at the Extremity of the Men’s Hut – There were a lot of people I co’d not tell who they were – I was close to the end of the Store when Fowler fell – I heard no Shots in the Store dur’g the whole time – I saw Mr Fowler fall. I heard a Shot immediately before, he F was not more than a few yards from the Hut. Those three men, the Pris’rs were in the Hut at the time. The shot came from the Window of the Hut – No person else in the Hut –

Oliver Gourley Sworn

I saw 4 men drawn out in a line in front of the Hut close to it on our approach to Mr C. Hunter’s Hut each man with a Piece in his hand – 4 guns were fired at us on our approach – each man fired – The Pris’rs are three of them – No shot fired by us when they fired –

Rob’t Chamberlayne Sworn

I was one of the Party that arrived at Mr C. H’s Hut – There were 4 men drawn up before us as we rode up they fired at us – I think the fire was repeated – Three of these men escaped into the Hut, & one into the Store – I called up’n them to surrend’r but they did not at that time –

Ja’s Thompson Sworn

I was one of the Party as I rode up I saw sev’l people at the door – they fired as we approached – I saw some shots from the Hut – I saw Mr Fowler fall I saw the shot distinctly fired at him from the Window. I saw the Pris’rs come out of the Hut –

Peter Snodgrass Sworn

I saw 4 persons these three Men the Pris’rs stand’g in front of Mr C H. Hut when we rode up they fired at us as we approached before we fired – ab’t 20 yds off We heard the Whizz of the Balls –

George Wm Ryder Sworn

I went into the Hut (Mr C H’s Hut) after the firing ceased – I saw the two Pris’rs in the Hut Fogarty went out at my instigation –

John Ewart Sworn

I went into the Hut with last Witness – Fogarty came out when we called him – the other two remained in the Hut 12 or 13 Hand of Arms in the Hut – No other persons in the Hut – Powder & Ball in the Hut –

X’ex’d

I saw Fogarty come out – only the other two the Pris’rs at the Bar Jepps & Ellis in the Hut when we went in –

Case –

Defence

Mr Murray.

No Witnesses –

Slightest doubt

Whether the Shot fired from the Hut was the Actual Shot fired to Mr. Smeathman – Law of the Case Malice – (I refuted this & cited Rex v Hunt R. M. Cro. Cav.98 Previous Conduct of the Bushrangers –

(Note: the words from “Slightest” to “Bushrangers” have been crossed out)

Verdict

Guilty on the Three 1st C’ts – for

Wounding with intent to Murder

May 13th – Sentence of death passed on the Prisoners.

JWW –

Commentary

These three prisoners together with John Williams had been bushranging in the Dandenong area and then moved into the Plenty River area and continued their criminal actions. La Trobe was informed of what was happening and of the small numbers of Police available to pursue these men and he arranged for a group of young members of the Melbourne Club – Henry Fowler, Peter Snodgrass, Robert Chamberlain, Oliver Gourlay, and James Thompson – to be sworn in as special constables and to set out, with the Police, to capture these men. They rode out to the Plenty River district and learnt that the bushrangers were at Campbell Hunter’s house and that local settlers and Constable George Vinge were trying ‘to contain them’. When the bushrangers saw the men approaching they fired at them and Henry Fowler was wounded. The special constables returned fire and John Williams was shot dead.

An Inquest was held into Williams’ death and, on 3 May, the other three men were committed for trial. Willis took steps to arrange for the trial to be heard at a special Sittings of the Supreme Court to be held on 11 May. He also attempted to set in place the legal process whereby, if sentence of death was to be passed, he could nominate the time and place of execution as part of the sentence rather than have the matter referred to the Governor in Sydney. He had in mind that the execution would be carried out within a few days after the trial. The Governor rejected this proposal.

In Willis Note Book No 13 – at commencement of this case – was the letter dated 3rd June 1842 from Colonial Secretary to Willis informing him that the sentence was to be carried into effect (now in Box 55, see Garryowen Vol 1 pp. 351-6; Behan 204-13; Boxall p.99 ff; Shaw: G-LT Corr pp 128, 129, 133; Macfarlane pp. 21-36; Lindsay Mann, passim)

Page 72 is blank.

31. Transcript of Trial of Sylvester Newton for Assaulting Constable in Execut’n of his Duty

Willis Note Book No 13 page 73

May 16th 1842

Sylvester Newton – Assaulting Constable in Execut’n

of his Duty –

Patrick Ryan Sworn

I was a Constable at Geelong on the 25th of Jan’y last – I was on duty on that Even’g. Constable Roach was with me – I was near the Commercial Inn We heard a Riot in the House Roach & I went in – we saw two Men fighting – we took them in charge – each one I came out first – Roached followed me – I was outside the door towards the Corner of the House – Roach called to me – Pris’r was at one side of the Lane com’g out of the House, sure it was the Pris’r I saw the Pris’r stoop down & pick up a stone – I was knocked down with a Stone – I got up & fell & got up & fell – The stone did not cut me but I got cut with a fall I had a Pris’r in charge at this time – he got away from me when I fell –

X’ex’d

I did not see the stone thrown – I co’d not swear that Pris’r threw a stone –

Edw’d Roach Sworn

I am a Constable at Geelong I was so on the 25th of Jan’y. I was on duty on the Even’g of that day near the Commercial Inn – Ryan was with me – I heard a Noise Riotlike – I went in with Ryan saw two men fighting – took them in Custody Ryan came out first – I followed – I got knocked down at the door – I saw nothing more –

Ambrose Draper Sworn

I live at Geelong I know the Pris’r – I was near the Commercial Hotel & saw a Row outside the Door I saw the Pris’r there, I was stand’g behind him – I saw Pris’r throw a Stone at Ryan hit him & he fell – About two yards – A large Stone – Ryan had a Pris’r Pris’r got away –

X’ex’d

I was in the Police – explains the reason of his dismissal – Murderous Attack –

Jonathan Clarke Sworn

I know Ryan I saw him on the 25. of Jan’y found him very Ill from Wounds – one on the back of his head inflicted by a blunt Instrum’t – Attend’d him for 8 or 10 days after he received the Wound –

Case –

Guilty 1st C’t

Sentence: 6 Mo’s Impris’t

Hard Labour

Commentary

This Trial arose from the same incident for which George Wellbank was tried on 16 February 1842 (see Willis Note Book No 13, p. 24).

‘Jonathan Clarke’ was Jonathan Clerke – a doctor practising in Geelong.

Newton is recorded in the CRB as ‘Free’ but there are indications he was well-known to the Geelong Police.

Newton’s sentence was on account of previous good character (Port Phillip Herald 17 May 1842)

On 25 August 1842 La Trobe agreed to remission of the last 2 months of the sentence of Silvester Newton (VPRS 16 Unit 3 Page 147)

On 10 September 1842 the Colonial Secretary wrote to La Trobe that Governor approved of La Trobe remitting 2 months from Silvester Newton sentence of 6 months (VPRS Series 19 Unit 35).

Newton was a witness in the Taylor Rape case (see Willis Note Book No 14, p. 38; Oct 15th 1842).

32. Transcript of Trial of George Waller for obtaining money under False Pretences

Willis Note Book No 13 page 75

May 16th 1842

George Waller Obtain’g Mo’y under false Pretences –

John Martin Sworn

A Tailor. I recollect the 15th of April – The Pris’r came to my House at that time – he stopp’d till the Monday – I gave him board & lodging & 11s in Mo’y – I advanced him the mo’y on the Virtue of his Pension – he said he had his Pension to receive on the Monday follow’g – He told me his Papers were with Mr Fawkiner – I told him on Monday to bring an Order or a Note from Mr F. & that he Pris’r co’d have any thing in reason – He did not bring me the Note or Order I required – I gave him then in Custody –

X

I did not trust the Pris’r on the faith of his getting Employm’t – He said nothing to me ab’t it –

J. Spencer Deverell Sworn

I know Martin – I know Pris’r I saw him at Martin’s House – I saw Mrs. Martin give him Pris’r Mo’y. Martin was by – He had 10s & a 1s afterw’ds. Pris’r said he had a Pension to receive of 23. pounds & Mr. Fawkiner had his Paper –

J. P. Fawkiner Sworn

I know the Pris’r. I do not know that he is a Pensioner – I had no Papers of his relative to a Pension or of any sort whatever on the 15th of April – He had no right to expect Mo’y from me –

X’d

I told him I wo’d try & get him Employm’t know’g him to have been a hard working man in V.D’s land –

Guilty –

Recommend’d to Mercy –

6 Mo’s Impris’t

Commentary

Willis’ spelling of the well known name of John Pascoe Fawkner as ‘Fawkiner’ may indicate how his name was then pronounced by some people. The name is spelt as ‘Fawkner’ throughout the depositions in this case (VPRS Series 30P – Box 1 – 1-11-2).

Waller is recorded in the CRB as ‘Free’ in relation to this conviction.

He was convicted of uttering a forged cheque in 1844; he was then recorded as FS and was sentenced to be transported for life and was sent to VDL. J P Fawkner’s reference to knowing him in VDL may indicate that Waller was originally transported to VDL.

The remainder of page 76 is blank.

33. Transcript of Trial of John Connor for Larceny

Willis Note Book No 13 page 77

May 16th 1842

John Connor Larceny

Charlotte Grant Sworn

I live in Flinders Street – I know the Pris’r he had been lodging at my Husband’s House – I saw the Pris’r in my bed room ab’t 4 oclock in the Afternoon – behind the door – I have a Chest of Drawers there – I found the things in the drawers all tossed about – I had some the same as Bracelets & Necklace produced – I saw him take some things of the same kind as those produced from his person – he gave them to me – he admitted having taken them – the drawer was not locked. He said that was all he had taken –

X’ex’d

Pris’r only one night in our House before He was tipsy in the morn’g – Sober in the afternoon – I saw him go up stairs – I had only two lodgers – Another Man –

John Corry – Sworn

Constable I went to Mrs Grants on the 14th of April. Mrs. Grant in the presence of the Pris’r said he had given them to her & desired her not to expose him nor lagg him again. She said they were heard – he denied hav’g had them in his possession –

George Black –

I live in Little Bourke Street I was in the Bird in Hand Mrs. Grants on 14th of April Pris’r there – I searched him – Pris’r said the Beads were all he had taken –

Jeanette Grant Sworn

To the best of my belief those are Beads purchased by me for my daughter in Law –

Guilty

3 Mo’s Impris’t –

Commentary

Connor is recorded in the CRB as FS.

Lagg (lag) was often used as convict slang for ‘transportation’ (Vaux).

George Black was a constable.

The rest of page 78 is blank

34. Transcript of Trial of Thomas Bodle for horse stealing

Willis Note Book No 13 page 79

May 16. 1842

Tho’s Bodle – Sworn –

John Hawdon Esq’re J.P. Sworn –

I saw the Pris’r ab’t 29th of March in Collins Street riding a Black Horse that I had sold to Mr. Flintoff I bred the Horse – he was brand’d GH on the Shoulders – I asked the Pris’r where he got the Horse he said he bo’t him from a Gent’n he wo’d not tell me – I seized the Bridle Pris’r tried to ride over me – When he found he co’d not get away he Pris’r threw himself off the Horse & ran away & was after’ds taken –

E. T. Flintoff Sworn

I recollect the End of March be’g at the Police Office seeing a Horse there – I am the Owner of that Horse – He was deliv’d up to me by order of the Pol. Mag. Brand’d GH on the near Shoulder I lost him in Nov’r – I never gave the Horse in charge to the Pris’r I don’t even know the Pris’r

X’ex’d

I have reason to believe the Horse strayed away from our place –

John Corry Sworn

Constable – I remember 29th of March – I saw Pris’r on that day – on Horseback riding furiously down Collins Street – I saw a man shortly afterwards purs’g & took him I saw Mr Hawdon

Case –

Guilty-

Tr. for 15 yrs –

Commentary

‘Thos Bodle Sworn” – this probably an absent-minded mistake. The prisoner was never sworn.

Joseph Hawdon was an ‘overlander’ and was at living at Heidelberg, near Willis, at this time (Billis).

The words ‘for life’ appear after ‘Tr’ but are crossed out and then ‘15years’ is written. On 16 May Willis did sentence Bodle to be transported for life and, on 20 May 1842, Bodle was placed at the bar and Willis said the sentence of transportation for life was wrong; it was then the legal penalty in VDL. He then sentenced Bodle to transportation for 15 years saying ‘when I commit an error in judgment I am always happy to retract it’ (Port Phillip Herald, 24 May 1842). Judges had the power to alter any sentences imposed provided they did it before the current Sittings were concluded.

The CRB at page 11 lists Bodle as ‘Free’ as being found guilty of horse stealing on 15 May 1842 and transported for 15 years. There is no alteration to this original entry; this would indicate that entries were not made in the CRB until the end of the court Sittings.

Bodle is given as ‘Boodle’ in some documents.

It may have been this case which alerted Willis to the mistake he made in sentencing Kilpatrick (tried on 30 November 1841) and Patrick Kelly (tried on 15 December 1841) to transportation for life for horse stealing.

The rest of page 80 is blank.

35. Transcript of Trial of James Cox for Assault on a Constable in Execution of his duty

Willis Note Book No 13 page 81

May 16 1842

Ja’s Cox Assault on a Constable in Exec’n of his duty –

John Waller Sworn

I am a Constable on Saturday 30th of April I was in Flinders Lane I saw Def’t – I knew him before I saw a man named George Sells alias Furbishaw & an’r man in his Comp’y who I knew to a Notorious Thief. I saw the two Men go tow’ds the Pris’r’s House I follow’d these men down the Street to apprehend them when Furbishaw turned round & the man who was in Comp’y with him ran into Cox’s House – the man goes sometimes by the name of George Mills & at other of Smith – I then gave Furbishaw in Custody. Cox lives in Eliz’th Street – I went to the door of Cox’s House it was fasten’d upon me – I went up on Passage leads to back Prem’s of Cox’s House when I was met by the Pris’r He seized me by the Collar & asked me wh’t I wanted there – I told him I was in search of a Thief who had gone into his Cox’s House – He told me I sho’d not enter into his House unless I co’d produce a Warr’t – or show him some Authority – he still resisted me hav’g his hand on my Collar going into the back Prem’s – The Party I was in pursuit of made his Escape – There was a large Bull Dog near me – I afterw’ds gave Cox in Custody. Cox knew me to be a Constable –

X’ex’d

Betw’n 3 & 4 oclock in the afternoon I positively swear I saw Smith enter Cox’s door – Certain Cox’s door fastened – I did not look in at the Window first – I might have done afterwards – I was proceed’g to the Back prem’s when I was obstructed –

Patrick Stapleton Sworn

On 30th of April I was on duty in Flinders lane with two other Constables – I saw Def at the back of his own Premises Engaged with Waller – Cox had hold of Waller Cox wo’d not allow him to go on the Prem’s – There was a Dog leaping at Waller & in consequence of its furiousness I did not go to W’s assistance –

X’ex’d

I went into the House from the rear with another Man & opened the front door –

Case

Defence

Mr Murray

Waller no right to apprehend –

Joseph Herbert Sworn

Carpenter. I was in Cox’s House on 30th of April – 4 or 5 other persons there – I heard a knock at the Door I rose up to open it. I told Cox that Constable Waller was look’g thro’ the Window – Cox said he sho’d go & see wh’t he wanted – Cox said he wo’d let Waller in with pleasure if he show him his Authority – Waller said he had Authority but co’d not show it at present – Cox asked Stapleton what bus’s he had there –

X’ex’d

I had business in that House – I had tools there – ab’t 6 persons there – I only enter’d the House ab’t 18 min’s.

Tho’s Haigh Sworn

I was in Pris’r’s House when Waller came there – I went for Mo’y from Cox – H’y Baker went along with me – I heard a knock at the Front door – Cox went out at the back door Constable & Cox were in a dispute (he Constable Waller wanted to go in & Cox wo’d not let him till he show’d his Authority. I enter’d the House just before the knock – Cox came in & shut Waller out – Cox asked the other Constable wh’t brings you here? & bundled him out –

X’ex’d

Front door – Waller put his foot in the front door & bro’t them all three out –

Henry Baker Sworn

I was in Cox’s House on Saturday I went there with Tho’s Haigh. Joseph Herbert went out of the Back Room to the front & told Cox Waller was look’g under the Blind – Waller dragged Cox out of the House.

X’ex’d –

Not Guilty –

Commentary

Erskine Murray, appearing for Cox, argued that Waller had no right of entry without a warrant; Croke said he had no supporting legal authority and Cox was acquitted by direction (Port Phillip Gazette, 18 May 1842).

36. Transcript of Trial of Peter Cassidy for Larceny

Willis Note Book No 13 page 85

May 17. 1842

Peter Cassidy – Larceny

Wm McVittie Sworn

On the 3d of this Month I was out ab’t 10 oclock at Night com’g from the Treasury Office I saw the Pris’r I first heard a Noise among some timber at a New Building close to the Treasury I saw two Men come out the Pris’r was one – he was carry’g a large deal Plank on his Shoulder – there was more Timber there – I asked him sev’l times wh’t he was doing with the Plank – the person with him ran away immediately – The Pris’r threw the Plank down & ran away – I told him to stop – I fired at him – I knocked him down – I took him to the Watch house He said he was drunk – he did not know what he was doing – I believe the Plank produced to be the one –

X’ex’d

The Timber on the side of the road when you dropped it, you are the man –

John Roberts Sworn

I am a builder – build’g an House for Willis & Co. The Plank their prop’y. Plank produced was their prop’y.

Guilty –

12 Mo’s Impris’t

Commentary

Cassidy is recorded in the CRB as FS.

The Treasury Office was then on the south-east corner of William and Lonsdale Streets. It is interesting that William Macvitie, then a senior public servant, was armed when leaving the Treasury office at night.

It is not possible to determine which of the many Willis families for whom the house was being built but none were related to Justice Willis.

37. Transcript of Trial of Robert Finly for Larceny from a Wharf

Willis Note Book No 13 page 85

May 17 1842

Rob’t Finly Larceny from a Wharf

John Guest Sworn

I am a District Constable on the 28th of April about 3 oclock a.m. a person came to the Watch house for a Constable I went to the Wharf & I saw the Pris’r – Mr. Boyd gave the Pris’r in Charge to me for employ’g a drayman to take away 4 Casks of bitter Ale – I took the Pris’r to the Watch house – Pris’r begged me not to be too hard on him He was in Liquor

Ja’s Boyd Sworn

In the Employm’t of Hunter Somervail & Co. Ab’t three oclock P M I don’t know the exact day I went to the Wharf where some Ale belong’g to H S & Co was land’g I was absent for one or two min’s & on return’g I saw a dray with 4 Casks of ale on it with Casks H. S & Co. Cask produced I believe to be one of them – same Marks – every appearance of be’g the same Casks – I asked the Drayman by whose authority he took the Casks – the Pris’r was present – I then sent for a Constable – I am sure the Cask is the prop’y of Hunter & Somervail

Tho’s Moylan Sworn

I am a Car man I know the Pris’r On the Melbourne Wharf ab’t 3 oclock in the afternoon on the 28th of April the Pris’r asked me to stand I did He asked me if I wo’d take a load to the other side of the Gov’t Fence – I said yes – I asked where the load was – He pointed out 4 Casks to me & said put them on as fast as you can – I believe that Cask to be one of them from the Mark – I had the 4 Casks on the Dray when Mr Boyd came up & asked me wh’t I was going to do with them – I told him – Mr Boyd claimed them – Casks were ly’g on the Wharf near the River –

Per jury’n

Pris’r was not Tipsey –

Case –

Defence for the Pris’r

George Merchant – Sworn

Pris’r has Worked for me off & on for two yrs – never known any dishonesty –

Guilty

10 Yrs Transportat’n

Commentary

Finly is given as ‘Finlay’ in the CRB and is recorded as FS

The remainder of page 86 is blank.

38. Transcript of Trial of James Macklin for Larceny

Willis Note Book No 13 page 87

May 17. 1842

Ja’s Macklin –

False Pretences –

Sam’l Bennett – Sworn

Constable – on the 12th of April I saw the Pris’r in Cashmore’s Shop. I took (him) into Custody for steal’g this Waistcoat – I took him to the Watchhouse

Michael Cashmore Sworn

Sometime in April the Pris’r was in my Shop early in the Morn’g very drunk tender’d me an order address’d to Donaldson & Monro – (order produced) I do not think this is the order –

J. M. Turpin Sworn

I saw the Pris’r in Cashmore’s Shop on or ab’t the 12 of April I am the Shopman Pris’r purchased a Suit of Clothes – Coat Trowsers & Waistcoat –

Not Guilty

39. Transcript of Trial of James Macklin for False Pretences

Willis Note Book No 13 page 88

May 17. 1842

Ja’s Macklin – Larceny –

Not Guilty –

J M. Turpin Sworn

Shopman to Cashmore & Co. on the 12th of april the Pris’r at the Bar was in Mr Cashmore’s Shop at 10 oclock in the Morning he was very drunk – he came in & presented an order say’g he wanted to get some Clothes – I desired him to call in a couple of hours – Two hours after when he came again I supplied the Pris’r with a Coat Trowsers & Waistcoat two Shirts & a Pocket Handkerchief. I swear I gave him a Waistcoat – he denied it – A Black Cloth Waistcoat I follow’d him – I bro’t him back & found the Waistcoat I gave him first concealed under his Shirt – I swear to the Waistcoat under the Shirt –

X’ex’d

I

Not Guilty

Commentary

These were separate trials. This was because the technicalities of the law at that time did not allow joint trials of separate offences even though alleged to have been committed on the same day in the same premises,

A study of the depositions taken at Macklin’s committal on 15 April 1842 indicates that Macklin (given as ‘Mecklin’) had been a tutor employed by William Hutton until 1 March 1842. The False Pretences trial related to the order addressed to Donaldson and Munro purporting to be signed by Hutton who swore it was a forgery – the signature on the order (which is still in the relevant file) is remarkedly like Hutton’s signature on his deposition. The absence of any note by Willis that Hutton gave evidence on the False Pretences trial may mean that Hutton did not attend to give evidence and this would explain the acquittal on that Trial.

The depositions also contain evidence was given by the watch house keeper that in Mecklin’s pocket book there were a number of paper writings and these are also still in the file. They look very much like experiments at forgery.

It is not clear why Macklin was acquitted on the Larceny trial. It could be that the jury accepted drunkenness as a defence even though the law took a stricter view. This case is not reported in the newspapers.

40. Transcript of trial of William Camm for Receiving Stolen Goods

Willis Note Book No 13 page 89

May 17. 1842

Wm Camm – Receiv’g Stolen Goods

Wm Wright Sworn

On the 2’d of May I went to the Dwelling house of the Pris’r from Information I had received to search for cert’n prop’y Serg’t Rose & an’r Trooper went with me & the Pris’r Fogarty – I searched a hole at the front of the door – I searched the House a new House – Pris’r was in bed I told him on wh’t Errand I came he denied all knowledge of the Bushrangers hav’g been in his House or leav’g any property there – I searched the bed room I poked through the thatch & a watch tumbled out – (watch produced) I found a second watch in the same place – I found two Chains – I found a brace of Pistols in the Thatch – I told the Prisoner it was a folly to deny it so long – I was in possess’n of more than he was aware of- He said I might have been placed in the same situation It was more than his life was worth to refuse them com’g – I said you have no call to deny the Property you have heard of one Man be’g shot & another being in Custody you have no fear now – I told him he sho’d have given information to the Police – He denied know’g any thing of the Bushrangers or the Friday ?persons & said he wo’d give information if co’d obtain it.

X’ex’d

Pris’r said it was not likely that they wo’d come there as he had been overseer over two of the Bushrangers at Mr Chisholm’s – He said to Fogarty Ha! Are you one of those Bushrangers – Fogarty made no reply –

Ja’s Osborne –

I live at Mr Chisholm’s Station on the Yarra – I recollect Wednesday Week last. On the 27 of April see’g Williams & Fogarty at our Hut – They took a Watch pr Pistols & Spurs – (Swears to the Watch) My Property – ags’t my Consent –

X

The Bushrangers terrified me very much – After they had taken their breakfast they made me go on my knees & swear I knew neither of them & wo’d not report them – Quite sure it was Wednesday morn’g. I came to Town that afternoon I did not return till Friday – I never knew any thing wrong of the Pris’r –

F. A. Paulett Sworn

I was out on duty on Friday 29th of April in pursuit of the Bushrangers. Wright & three mounted Policemen & some Settlers About 5 oclock in the Ev’g betw’n Seymour’s & Chisholm’s we met the Prisoner – we asked him if he had seen the Bushrangers & descr’d the Horses they were on – He denied know’g any thing of them He said he hoped they wo’d not come to him – He said the first time he heard any thing of the Bushrangers he wo’d let Mr Wright know –

Case

Defence –

Statem’t of Pris’r – force made use of to make him see the Stolen Property – oath – Fear – men. Ought to have gone to Magistrate –

Why not have inform’d Wright – Character –

J M Chisholm

Pris’r my overseer – while with me every reason to be perfectly satisfied with him – 4 Months – I was at the Station ab’t 12 times dur’g that period –

Ja’s Purvis Sworn

I have known the Pris’r ab’t 4 yrs – I have employed him in responsible situations – As overseer – I thought so highly of the Pris’r that at one time I sent him to my Western Station He lived a very short time with me – An Effective Man among Sheep .. Pris’r satisfied Aiken & Dryden or they wo’d not have kept him so long

Gideon Stuart – Sworn

I have known Pris’r ab’t 5 yrs I first knew him ab’t five yrs – he was with me ab’t three yrs – ab’t two yrs ago. He was in my Employ a Month since shear’g for me – Dur’g the 3 yrs he was with me he conducted himself to my Satisfaction –

Arch’d Thom Sworn

I know the Pris’r he lived with me two yrs ago – he conducted himself every way to my satisfaction – He has been occasionally with me since Shearing – I consider him a Sober steady Man If he were acquitted I sho’d have no hesitation in taking him again.

Guilty

Recommended to Mercy for previous good Character –

Transportat’n for 14 yrs

Commentary

Camm was convicted of receiving property stolen by the Plenty River Bushrangers (Ellis, Jepps Fogarty and Williams) in the Dandenong area before they moved on to the Plenty River district. James Croke opened to the jury that Camm was associated with the men recently sentenced to death – ‘connected with these men in their malpractices’ (Port Phillip Herald, 20 May 1842).

‘Statement of prisoner – force made use of to make him receive stolen property’ indicates that Camm raised the defence of duress.

Camm is recorded in the CRB as ‘Free’ but the recommendation to mercy is not recorded in the CRB. He was sent to VDL (VPRS Series 19 Unit 31).

The remainder of page 92 is blank.

41. Transcript of trial of Richard Salisbury Roxbury Obtaining Goods under false Pretences

Willis Note Book No 13 page 93

May 17. 1842

Rich’d Salisbury Roxbury – Obtaining Goods under false Pretences

Pleads Guilty

7 yrs Trans’n

Commentary

Roxbury was Roxburgh who had been previously convicted on 16 February 1842 for obtaining goods under false pretences and imprisoned for 2 months (see Willis Note Book No 13, p. 34).

The depositions about this case, taken before Major St John on 29 April 1842, indicate that on 16 April the prisoner, using the name Richardson, booked into the Caledonian Inn and between then and 29 April he ran up a bill of 9 pounds 11 shillings (the account is still attached to the file). He said on 29 April he was going to cash a cheque which he showed to Harry Ryan Gosling, bookkeeper at the Caledonian. When he was given in charge to Constable Patrick Stapleton and was on the way to the watchouse he took a glove out of his pocket and was biting a finger – in that finger was a cheque purporting to be drawn by George Cheney in favour of James Gerrard on the Bank of Australasia Sydney for 48 pounds 10 shillings (VPRS Series 30P – Box 1 – 1-12-11).

He was sent to VDL (VPRS Series 19 Unit 31; Mullaly pp. 644-5)

42. Transcript of Trial of Stephen Egan, James Smith for stealing a heifer

Willis Note Book No 13 page 94

May 20th 1842

Stephen Egan & James Smith

Stealing a Heifer –

Tho’s Bennett Sworn

I live with Mr Pyke on the Plenty Capt’n Brown has a Station ab’t 8 or 9 miles from where I live I know Bodle – I have seen him at Mr Pyke’s – I know the Pris’r Egan, not Smith. Egan has some Bullocks – no station – Rents some gro’d from Mr Brown – I saw some Cattle in the Cattle Market some beasts marked with either F. or E – I don’t know Chummy – About 3 Weeks or a Month ago I saw some Cattle at Mr Pyke’s lately Branded –

Hugh Larimer Sworn

I live with Capt’n Brown at his dairy station – I recollect the 20 or 21st of April com’g to Melbourne on that day to see some Cattle in the Cattle Market I saw one a Heifer of Capt’n Brown’s there – I swear positively the Heifer I saw there belong’d to Capt’n Brown – It reared in our yard – I constant opportunities of seeing it – co’d not see any brand on it at Capt’n Browns When in the Cattle Market it had a fresh Brand a large E. I drove the Heifer home that day- I know both the Pris’rs – Egan had six bullocks branded with a large E – the same brand as the Heifer or like it – I took nine more head of Cattle – 8 out of the ten brand’d with E – I cant say I ever saw Smith in Comp’y with Egan I have seen Smith twice at Egan’s Place – I know Bodle I have seen him at Egan’s I often saw Bodle at Egan’s – I know a man named Lokey

X’ex’d

I am Serv’t to Capt’n have lived with him a year & 10 months – Egan’s lives in a Hut of Capt’n Browns close by the dairy station – he rents a small bit of gro’d for Capt’n Brown – Capt’n Brown has sold 6 Steers to Egan – I do not know wh’r Capt’n Brown sold the Heifer to Egan –

Tho’s Pye – Sworn

I am a Stock keeper – I came to town ab’t 2 mo’s ago to look at some Cattle – I had seen the Cattle before on Capt’n Brown’s Run Three out of the ten were deliv’d to me as Capt’n Brown’s Cattle by Bodle – I saw a Heifer at the Cattle Market she has been run’g on Capt’n B’s run since She was Branded with a large E when I saw her in the Cattle Market – I have not seen Smith in Comp’y with Egan – a large E. on Egan’s Bullocks – Heifer branded with same Brand – no Cattle in the neighbourhood with the same Brand. All brand’d with the larg E but three – Co’d not say wh’r the E. was Egan’s Brand or not –

X’d

The other seven were never deliv’d as Capt’n Brown’s – no nothing of any Cattle be’g sold by Capt’n B to Egan with the Exception of the Bullocks

John Mooney Sworn

I know Pris’r Smith, the first time I saw him was at the Cattle Market I did not purchase any Cattle from him that day I did from Atkinson – I purchased 11 head I saw Smith in the Cattle yard that day – I did not buy then – I saw Pris’r Smith the day after in Swanston Street – he came to me & said I had put him to a deal of Expense in not tak’g the Cattle I bo’t the day before I shall let you have the 11 he said for 15 pounds 10s – I took no Notice of the Brand – He came again & off’d them for 14 pounds – one heifer he said he had given away to a Child he stood for – Smith told Atkinson he was pay’g half the expenses of the Lunch –

H’y Ja’s Stephens

I live in Melbourne I know the Pris’r Egan – I am in Mr Atkinson’s Office I recollect seeing Egan there in the latter part of Feb’y accompanied by Bodle – I saw Smith at the Office on a subseq’t occasion- Smith came with an Authority from Bodle for the sale of some Cattle – I b’t some Cattle Steers & Heifers some branded with an E – Smith appeared to be act’g an Agent for Bodle –

Rob’t Ainsly Sworn

I know Pris’r Smith I saw him at the Cattle Market ab’t the 17th of March – selling Cattle brand’d with a large E. I never saw Egan at the Cattle Market – Cattle sold sev’l Heifers among them I don’t recollect a Heifer taken away by Capt’n Brown Smith p’d Market dues – Some Cattle were sold below their Value Brand’d with a large E. –

H H Atkinson Sworn

I know the Pris’rs – I am an Auctioneer I saw them at my Office Egan once in Company with Bodle – I sold some Cattle ab’t the 15 March Pris’r Smith attend’d the sale. I can’t say how the Cattle were branded – he said not to take the 11 but 10 only the one intend’d for his godchild: I gave the Price of the Cattle to Smyth

John Pike Sworn

I live on the Plenty 7 or 8 miles from Capt’n B’s dairy station – was in Melbourne 14th of March last I know the small Pris’r Chumy Smith, He off’d me 9 head of Cattle for sale brand’d with an E at 30s per head – sev’l Heifers – E a very remarkable brand – appeared to be recently done – He Chumy told me there was one that was a ?…ker’s Calf got by Capt’n Browne’s Bull – I think it was a blue sided one – In very ragged condition had had nothing to eat from the previous Friday night he told me they came down to the Goldburn – I did not buy them suspect’d them to have been stolen

X’ex’d

Not Guilty –

Commentary

These accused were associates of Thomas Bodle convicted of horse stealing on 16 May 1842 (Willis Note Book No 13 page 79). Bodle (Boodle) was also alleged to have been involved in Cattle Stealing and using Egan and Smith to assist him in disposing of stolen cattle.

‘Capt’n Brown’ was Captain Sylvester John Browne – the father of Thomas Browne (Rolf Boldrewood)

‘Tho’s Pye’ was Thomas Pyke.

Hugh Larimer was ‘Larrimer’ in the depositions.

‘Lokey’ was a farmer named Lockey

Rob’t Ainslywas Robert Ainslie (Ainsley) – he was Inspector of the Cattle Market, Melbourne.

The remainder of page 98 is blank.

43. Transcript of Trial of William Palmer for Larceny

Willis Note Book No 13 page 99

May 20,1842

Wm Palmer Larceny –

Dan’l Gardiner Sworn

I live at the Herald office The Pris’r comes to the Herald office some times to Work – I lost some Clothes on Good Friday – I missed them – I saw them on Thursday night ab’t 9 oclock (descr’d the things ment’d in the informat’n as his) Pris’r was at the Herald Office on the Thursday.

Sam’l Crofts Sworn

I know the Pris’r – I bo’t the clothes produced from him. He told me being out of Work he was in the habit of attend’g Sale Rooms –

Peter Larkin Sworn

Constable – I know Pris’r I know last Wit’s –I got a search Warr’t last gave up the Articles prod’d & said he had no more

Wm Henley Sworn

I am an Auctioneer I never sold the Pris’r any such Articles as I see there – I don’t think I ever sold any such Articles as those in my life –

Guilty –

One Month’s Impris’t & Whipp’g 50 lashes

JWW

Commentary

Willis questioned Gardiner as to his understanding of nature of oath (Port Phillip Herald, 24 May 1842). This indicates that Gardiner must have been a young boy.

In sentencing Palmer, Willis referred to the frequency of this offence and the fact that imprisonment alone did not deter (Port Phillip Gazette, 21 May 1842).

Palmer is recorded in the CRB as FS and as sentenced to imprisonment for 1 month and a public whipping of 50 lashes on its expiration.

On 21 June 1842, Raymond, the Deputy Sheriff, wrote to La Trobe that William Palmer sentenced to one month and publicly whipped – 50 lashes – for Larceny had been discharged on Friday 17June and ‘that the latter part of sentence was not carried into effect’. On 5 July 1842 the Colonial Secretary wrote to La Trobe that Governor approved of La Trobe’s remission of the later part of the sentence (VPRS Series 19 Unit 32).

The explanation for these events is that the official document containing the Governor’s approval of the sentence had not been received in Melbourne prior to the date on which Palmer was due to be released.

It was unusual for Willis to put his initials after his notes about a minor case and it may well be that the initials were added after Palmer’s next appearance before Willis (see Palmer in Willis Note Book No 13 page 111; Mullaly p. 204).

Pages 100 & 101 blank.

44. Transcript of Trial of Thomas Penny for Embezzlement

Willis Note Book No 13 page 102

June 15,1842

Tho’s Penny – Embezzlem’t

Plea Not Guilty

Anah Lewis – Sworn

I know the Pris’r he was employ’d by me to make out my Books, as Clerk – & to collect Mo’s. I employed him to collect Mo’s record’d in the C’t of requests – I gave him a written Authority. The am’t Pris’r was to receive from Griffin the Reg’r of C’t of Requests was 10 pounds & 13s Costs – I received 30s I asked him frequently for the rem’r he said Griffin wo’d not give him any more till the full am’t was p’d – I went to Mr Barry in consequence & afterw’ds to Mr Griffin I saw him – The Pris’r wo’d not go with me to Griffin – I charged Pris’r with hav’g Embezzled this Mo’y in my own shop. He denied it first but my Wife spoke to him he said if she wo’d give him ½ an hour he wo’d go get it – He wo’d not go with a Constable or with me – he wanted to go by himself. He never accounted for the Mo’y

John S Griffin Sworn

Reg’r C’t of Requests – I recollect hav’g p’d Mo’y to Pris’r at the Bar 1 pound 10s on Acct of last Wit’s on the 26th of Jan’y – he produced Authority – on the 28th of Feb’y 2 pounds also on 18th April 3 pounds 10s all on acc’t of A Lewis – I never told the Pris’r to the best of my knowledge that I wo’d not pay the Mo’y –

Defence –

Written statem’t –

Guilty

6 Mo’s Impris’t

Commentary

The crime of Embezzlement is committed when a servant receives money on behalf of his master but does not hand it over.

Kerr lists Lewis as a grocer in Little Collins Street.

The ‘Barry’ referred to in the notes of Lewis’ evidence is Redmond Barry who was then Commissioner of the Court of Requests.

‘Defence – Written statem’t’ – a prisoner on trial could make an unsworn statement in his defence; it was permissible to do so by either reading a written statement or handing such a statement to the Court. That statement would then be read out by a Court official. There is no surviving detail of Penny’s statement.

The Port Phillip Gazette of 18 June 1842 reports that the jury recommended Penny to mercy on account of his wife and family and that Meek gave him a good character. This was probably William Meek, a Solicitor then practicising in Melbourne. Willis did not always record that a character witness had been called.

Penny is recorded in the CRB as ‘Free’ but there is no record of any recommendation to mercy.

The remainder of page 103 is blank.

45. Transcript of Trial of Alexander Verner for Larceny

Willis Note Book No 13 page 104

June 15, 1842

Alex’r Vernon – Larceny

Jacob Marks – Sworn

I am in Partnership with Harris. Pris’r came to our Shop ab’t 5 oclock in the Even’g to purchase a Jacket – he did not purchase a Jacket – I missed one – this is it – I found it in his bundle in the Shop – I found a Handkerchief of mine in Pris’r’s pocket at the Station House – Pris’r said he had purchased the Jacket at some other Shop –

X’ex’d

Johnson Thornhill Sworn

I saw Pris’r in Marks’ Shop He was charged with steal’g a Jacket – Pris’r off’d me a Pound to let him go. Before the Handkerchief fell out of his Hat —

Guilty –

6 Mo’s Impris’t – hard labour

Commentary

Harris and Marks shop was on the corner of Collins and Queen St.

Johnson Thornhill was a constable.

Verner is recorded in the CRB as FS.

46. Transcript of Trial of Robert Marsden and John Harrison for Larceny

Willis Note Book No 13 page 105

June 15, [1842]

Rob’t Marsden & John Harrison – Larceny

Wm McLeay – Sworn

I live with Mr Mack of Geelong I recollect the 20th of May. I lost my Box from a room where I slept in the Stable – The Box produced & Contents identified – I have no doubt they are mine. I missed the Box ab’t dusk – I know the Pris’rs I have seen them in the Stable & ab’t the House – I found the Box in a Scrub close to the beach –

X

The Pris’r came in as we had finished Tea – I went out & returned & sat & talked with him. I missed the Box when I went out from Tea –

Alex’r McKay Sworn

Wheelwright live at Mr Mack’s Premis I recollect 20th of May – I saw them in the Even’g of that day com’g in to Mr Mack’s yard one of them Harrison with a Box on his Shoulder – the other man was Walking behind – I believe Box to be same as one produced – The one that was walking behind said Plant it any where – by the Pig sty – They put the Box down – I saw them return in 10 min’s or ¼ of an hour I observed Harrison endeavour’g to get the Box on his Shoulders he did not succeed Marsden said if I’m to be hanged for it I’ll have the bloody box – They carried it away towards the beach – I then gave informat’n to Mr Mack, it was Moonlight but not much light Ab’t 4 or 5 yds from Pris’rs at one time – I am sure the Pris’rs are the men –

X’ex’d

I believe it to be the same Box I had seen it before I saw you put it down I marked it with my knife – Ab’t 6 or 7 oclock – I swear to you by your voice Marsden – I am confident the Pris’rs are the men – The Box remained nearly ¼ of an hour near the Pig Stye – I told the Constable who the Party was – You (Marsden) might have gone away –

Edm’d Roach Sworn

Constable in Geelong recollect 20th of May I took Marsden I saw Harrison in custody of Owen Nolan an’r Constable – I found the Box with Nolan planted in the Scrub

Defence Marsden – Harrison

Identity.

Tr. 7 years –

Commentary

Joseph Gardiner Mack had an Inn at North Corio.

Both prisoners are recorded in the CRB as FS.

The remainder of page 106 is blank.

47. Transcript of Trial of John Hepworth, for Forgery

Willis Note Book No 13 page 107

June 15, 1842

John Hepworth – Forgery.

Not Guilty

Ja’s Lawler Sworn

I live on the Broken River I keep a Public House there – I receiv’d the Cheque produced in a Letter from my Clerk Angus McLean – I took it to the Bank & they told me there were no funds.

Ja’s Graham Sworn –

The name Ja’s Graham subscribed is not mine – I keep an Acc’t at the Bank –

Angus McLean

I live at the Broken River with Lawler as Clerk – I know Cheque – I received it 10 pounds 10s. Pris’r handed it to me I gave some cash for it – I sent the Cheque to Mr Lawler in Melbourne –

X’ex’d

You got some liquor, a Hat, & some Mo’y & ab’t 6s Mo’y – He did not come for the balance – I saw other Cheques in the possession of Pris’r’s Comrade –

Defence

I got the Cheque from Ja’s Mayne Mr. Grants Overseer at the Broken River to get him a Bottle of Brandy & buy myself a Hat

Not Guilty –

Commentary

James Mayne was also committed for trial on this offence but, earlier on the day of Hepworth’s trial, James Mayne was placed at the bar and James Croke said he would not proceed; Mayne was then discharged.

The Cheque is “Hume River 10 February 1842”

Pay “Henry Bayston” or Bearer

“the sum of 19 pounds ten shillings”

Sterling on account of

signature] “James Graham”

One can only assume that the James Graham who gave evidence at this trial was the well-known Melbourne merchant of that name.

In the Hepworth trial, Willis directed an acquittal on the basis on absence of ‘guilty knowledge’ as the cheque was on the Sydney branch of the Bank of Australasia and a settler named Graham may have had an account there. (Port Phillip Gazette 18 June 1842)

48. Transcript of Trial of Edward Brown for Larceny

Willis Note Book No 13 page 108

June 15th 1842

Edw’d Brown – Larceny –

Cornelius Sullivan Sworn

I am a Constable The Pris’r was pointed out to me in the Bush he had a Handkerchief under his Arm – a bundle – he wo’d not show the Contents I found a Silk Gown in it. He told me it was his Wife’s Property – Pris’r told me he wo’d not tell me how he came by it – afterwards he said he bought it. I found the Waistcoat in Pris’r’s Lodgings – in a Box.

X

The Box was not concealed or locked or the Prop’y concealed –

H’y Horler Sworn

I live at the Merri Creek I know the Pris’r I saw the Gown in possession of the Pris’r – The Gown is mine. The waistcoat – I saw the Waistcoat in Pris’r’s Box in the House he lives & the Gown in a bundle under his Arm – last Sunday week – When I came home I found the door open – Brown was seen on Sunday ab’t the House –

X’d

I have left you at my House before – Bludgeon & Chissel found in the House –

Anna Horler – Sworn

I know Pris’r I saw him on Saturday Week last ab’t 5 oclock in the Even’g near our House – The Pris’r was left in the House a great many times by himself. That is my gown –

X’ex’d

I left you on the Pres – close by the Pres – ??? When you saw me you turned off the high road –

Martha Matthews Sworn

I know the Pris’r Master was at Home & all the rest in Town Pris’r was look’g steadily at the House last Saturday week –

X’d

Distance from the House – Jackets –

Defence

Jeremiah –

Guilty –

Tr. 7 yrs –

Commentary

Brown is recorded in the CRB as FS and is probably identical with the Edward Brown acquitted of Larceny on 15 February 1842 (see Willis Note Book No 13, p. 20).

This case is not reported in the local papers.

The remainder of page 109 is blank, as is all of page 110.

49. Transcript of Trial of John Palmer for Larceny

Willis Note Book No 13 page 111

Crim’l Sessions

July 15. 1842

John Palmer Common Larceny

Joseph Bissell Sworn

I live in Eliz’th St I keep an Iron-monger’s Shop – on the 21st of June last I went thro’ Flinders lane – I had previously missed a tray & pair of Snuffers produced – Identifies them – Saw them after I missed them exposed to Sale in Flinders Lane in a small Shop – The Tray

X’ex’d

I knew nothing of youMartin 0’Keefe Sworn

I live in Melbourne I know the Pris’r I remember seeing him on the 21st of June in Collins Street near the Commercial Inn – About ½ past 4 P.M. He asked my wife if she wo’d buy them (Snuffers & Tray) believes those produced are them, he had them concealed in his bosom & drew them out my Wife bought them & I paid for them 2s/

I kept them a few days & sent them to an Auction for Sale – they were sold there for 3s/3d – Henly was the Auctioneer – Positive Pris’r is the man

Cha’s Twogood Sworn

I know last Wit’s he bro’t a Pr. of Snuffers & Tray to Mr Henley’s to be sold by Auction they were sold to Ja’s Lye for 3s/3d –

James Lye Sworn

I live in Flinders Lane I keep a Shop – was in Henley’s Auction Room that day I purchased Tray & pr. snuffers can swear to Tray prod’d believe Snuffers same – I had them exposed to Sale –

Cha’s Wagoner Sworn

I am a Constable I recollect the 27th of June be’g in Flinders Lane with Mr Bissell I know last Witness I was in front of his Shop I saw Snuffers & Tray & took possession of them (produced same) Exposed for Sale at the door – took them to Police office – I then apprehend’d last Wit’s –

Defence Written

Guilty –

3 Mo’s Impris’t three Publicly Whipp’d

1st Whip’g 6 weeks. 2’d Week after

3’d day before Expirat’n of Sentence

The rest of page 112 is blank

Commentary

This Palmer is identical with the William Palmer convicted of Larceny on 20 May 1842 (see Willis Note Book No 13, p. 99).

Jackson and Bissell were Furnishing Ironmongers and Importers of Hardware in Elizabeth Street.

In his sentencing remarks about avoiding flogging in the previous sentence, Willis said it was due to the non-arrival of the official Returns, which contained the Governor’s approval of the sentence imposed by the trial judge (Port Phillip Gazette, 16 July 1842).

William Palmer was again convicted of Larceny of clothing in August 1844. At his trial before Justice Jeffcott, James Croke, in his opening address, told the jury that Palmer had been convicted twice previously. On this occasion, in 1844, Palmer was sentenced to transportation for 7 years and he was sent to VDL. He had originally been transported from the UK per Lady Faversham in 1836 (VPRS Series 30P Box 187 NCR 136; Port Phillip Patriot 22 August 1844; VPRS Series 19 Units 64, 66, 67; see also Mullaly p. 204).

50.Transcript of Trial of Thomas Nowlan for Larceny

Willis Note Book No 13 page 113

July 15th 1842.

Tho’s Nowlan Larceny –

Pleads Not Guilty

John Duggan Sworn

Constable on duty in Collins Street betw’n 10 & 11 oclock on the night of the 13th July. I saw the Pris’r I am quite sure it is him. The Pris’r was given in charge by W? – a young Man gave me a bottle with some wine When I took the Pris’r he was drunk – Bottle & wine prod’d

Chris’r Dennis Sworn

I recollect the 13th of July I saw the Pris’r that night. I know him – it was betw’n 10 & 11. there was a Cask of Wine on the Prisoner I saw the Pris’r at the Cask – he had a bottle in one hand & was trying to knock the Peg ? (note: Judge has corrected “out of”) the Cask The Wine was run’g out. I am sure the Pris’r is the Person I saw the bottle in his possession & the Wine in it.

Per Jury

The Cask was not under lock & key The Spile was left in the Cask because we were drinking it.

W’m Ekin Leigh Sworn

I recollect the Night of the 13th of this Month – he was in my House in the Back Kitchen – he was drunk – I went out ab’t 7 & returned a little after 10. – Pris’r was drunk – I don’t know that he was so when I went out I had a Cask of P’t Wine with a spile in it with 7 or 8 others in the Back Yard – I saw a Bottle of Wine on the Kitchen Table Pris’r was there – I never gave Pris’r instruct’ns to draw Wine.

Not Guilty

Commentary

A ‘Spile’ is a peg or plug of wood, esp. one used as a spigot (Macquarie Dictionary).

Willis directed an acquittal on the basis that Nowlan was charged with stealing a ‘Bottle of wine’ when he should have been charged with stealing the wine which he put in a bottle (Port Phillip Gazette, 16 July 1842). Such technicalities were not uncommon at this time.

The remainder of page 114 is blank.

51. Transcript of trial of Michael Maloy – murder

Willis Note Book No 13 page 115

June 15 [1842]

Michael Molloy – Murder

1st Issue Wh’r Mute of malice or by the visitation of God which includes his Mental & Physical ability to Plead

D. J. Thomas Sworn

No immediate danger – I saw the Pris’r when he was bro’t here on a former occasion – His pulse was low – quite imperceptible – Surface Cold – He was unable to speak – his head drooping – Contraction of the Muscles – spasmodic – I did not see his tongue he co’d not open his mouth from the contraction of the Muscles – He was then given a Stimulant I thought his gen’l appearance indicated a near approach of death – He appeared to have some power over his legs after having got some brandy & water – I have seen him frequently since – I went for the purpose of ascertain’g the true causes of the state in which I first saw him. I have taken some Interest in this case as one of importance – He appeared better when I saw him in jail on the first occasion. The surface was warm – his pulse more natural but still not healthy – Infrequently ? – there was much less contract’n of the muscles. paroxisms increased with slight convulsions – tremulous motion of the tongue At first he co’d follow the calls of nature with decency but not afterwards. The 2’d time I saw him (in) jail after an interval of more than a Week Dr. Hobson accompanied me & I found him worse – His pulse imperceptible – great discharge from his Nose & Mouth – Inflamat’n of the Eyes – discharge from nose different – I consider it wo’d require a knowledge of the man’s previous history to decide on his Case & frequent personal Observation – I am of Opinion the man is Insane –

X’ex’d

I rank his Insanity as Dementia – I consider him as labour’g under Mono Mania at first – I think his complaint arises from affection of the brain – I never during my Visits found him in a lucid Interval – I tested him by putting a red hot Wyre up his Nose – he exhibited no muscular motion & his pulse was not altered in (ink blot) degree – The other test I applied was red hot Iron to his Toes – he showed no feeling. I have punctured his Skin very deeply – I am of opinion he is not sham’g – that he is insane – The paralyzation of feeling frequen arises from disease of the Brain. His Urine was of the peculiar order of that of persons labour’g under dementia – Another feature of dementia exhibited by Pris’r is eating his food – Eating three days allowance in one & then fasting – I have not been very much in the habit of attend’g Insane persons – I never knew a Pris’r feign Insanity on the approach of his Trial. The previous history of the Pris’r has confirmed my Opinion.

Edm’d Cha’s Hobson M.D. – Sworn

I have seen the Pris’r first ab’t a fortnight ago in Comp’y with Dr. Thompson – When I first saw this man his pulse was better than it is now I believe him to be demented – or in a state of fatuity – his previous history verifies my Opin’n of his present Condition –

X’ex’d

The effect of a forthcoming prosecut’n may have anihilated his mind – I have had much experience in mental maladies – I was in an Hospital to which a Lunatic Assylum attached – I have made no experim’ts as to the Pris’r’s State of mind –I have visited him ab’t 12 times His countenance & more particularly his position indicate Mental Derangem’t –

The Curved position of his body – I have reason From wh’t I know from my own (ink blot, but the word is probably “observa’n”) & Experience I sho’d say the man was demented – With’t reference to his previous history my comprehension wo’d be that the man is demented –

R’t Martin M.D. Sworn –

I saw the Pris’r yesterday – I was Ten years Physician to a Lunatic Assylum – I think the Pris’r demented.

X’ex’d

In the course of my 10 yrs experience I have seen a great No. in a similar Condition – I don’t think it possible Pris’r co’d be shamming –

Case for Pris’r</p>

H’y Watson M.D. Sworn

I saw the Pris’r the day before yesterday – It struck me that the man was feigning he might have a functional derangement but not organic disease – I can’t say wh’r he be or be not mute by the Visitation of God – My opinion is that he is sane – I certainly think he understands what he is about – Bodily I cannot see any objection to his being put on his Trial – Mentally I cannot say – I do not think he is unfit to be tried –

X’ex’d

I have had very little gro’ds to form my opin’n upon –

B. Wilmott M.D. Sworn

I have seen the Pris’r 3 times altogether My impression on my mind was that the state in which he appeared was an assumed one as far as I can judge of his mind I think he is in a fit state to be tried – I do not see any reason why he sho’d not plead -I do not think he is insane –

X’ex’d

I do not find the Symptoms I sho’d expect to find in dementia – states his reasons – I tried strong ammonia – The Effect was Salutary – His resistance was natural – I have strong reason to think from the state of the Pris’r’s Body & was in a sound state– I don’t recollect ever know’g a similar Case –

P. Cussen M.D. Sworn

I have seen the Pris’r repeatedly & ex’d his state of health – My opinion of the Pris’r is that he is perfectly sane – that his being Mute is feigned – My impression is that he is perfectly aware of what is going forward & of the nature of the Proceedings – My opin’n is that he is Shamming –

X’ex’d

Gives his reasons. Pris’r’s bodily health good – I think he has a controul & that fear influences his pulse – His bodily health continues good – All the functions of life good – I attach very little importance to the state of his urine – I have been under the impression he was sham’g from the first time I saw him –

Godfrey Howitt M.D. Affirms

I have seen two or three times My impression is that the Pris’n’s Muteness is the result of his Will – His bodily health good – I think his Physical Condition good – it is such as wo’d induce me to believe his Mental Capacity such as to fit him to be put upon Trial – The Eye is not that of a demented man –

X’ex’d

I never found any thing ab’t him but that of a healthy man & I always found him anxious to withdraw himself from the Observation of others I never saw him go from one place to an’- –The last time I saw him he had the bed clothes drawn over his head – Withdraw’g from Observation may be one of the Symptoms of insanity but not of itself to be relied upon – I have never seen the Pris’r with’t observ’g voluntary Action – I decidedly think the Pris’r is fit to be bro’t to Trial –

J. M. Airey, J.P. Sworn

per Cnr –

I have seen the Pris’r From the observation’s I have been able to make I rather incline to think the Man has been labouring under a degree of Insanity – Pris’r Spoke & X’ex’d a Witness at Lal lal in a rational manner but he seemed almost an Idiot at the same time – Pris’r said I thought you were try’g me now When he was taken to the dead body he never altered a Muscle –

Verdict Mute by the Visitation of God –

Commentary

In various documents Maloy is given as ‘Malloy’ or ‘Molloy’.

In April 1842 William Wood, John Hely and Henry Reynolds were employed by Geo Airey at his Lal Lal station and slept in the same hut and after they had gone to bed, on the night of 28 April, Hely heard a shot and saw someone running away from the hut. He thought the shot had been fired as a joke but in the morning Wood was found shot dead in his bed. During that day Michael Maloy was seen around the station. Maloy was known to have been behaving oddly and talking of shooting people who he was thought to be imagining as annoying him. When his firearm was found there were indications that it had been fired recently.

The Geelong Magistrates held some form of inquiry and took depositions which were sent to James Croke in May 1842. Croke must have decided to charge Maloy with murder and arranged for the trial to be held during the June Sittings of the Supreme Court.

At the beginning of those Sittings Willis made his usual address to the jury panel and informed them about the law of insanity. Maloy was brought into the court room on 16 June and the newspaper reports of the proceedings were to this effect:

On 16 June 1842 placed at bar – aged about 30 years but looked like an old man – medical evidence that too ill to be tried. Willis wanted to order that he be kept in the hospital but Cussen said it was not secure (Port Phillip Herald, 17 June 1842).

On 16 June prisoner presented a most unseemly spectacle having all the appearance of a slothful idiot – is an Irishman aged about 30 years but from his feeble and decrepit appearance, appears to be at least twice that age. In reply to Willis, Dr Coward said that during inquest Malloy putting on appearance of insanity but cross-examination was remarkably shrewd. Wintle – can walk and eat but has not spoken – always sits in same position – been in custody since18 May (Port Phillip Patriot, 20 June 1842).

These reports indicate that evidence was given about his medical rather than his mental condition and Willis adjourned the trial.

Croke advised La Trobe that a Medical Board should be appointed to examine Molloy. La Trobe appointed a board consisting of 3 doctors – Patrick Cussen, (Colonial Surgeon) William Wilmot (Coroner) and Godfrey Howitt (a Physician, Collins Street). On 30 June 1842 the board reported to La Trobe that they had visted Molloy on 30 June 1842 ‘and after a minute investigation into his case we are of opinion that the Paralysis, Dumbness, and want of Intellect which he just now appears to labour under are all feigned and we consequently consider he may be put on his trial for the crime for which he is charged’. La Trobe sent this report to Croke by letter dated 2 July 1842 (see VPRS Series 21 Unit 1; VPRS Series 19 Unit 34; VPRS Series 16 Unit 3, p. 73)

Although Willis has noted the date as ‘June 15’ it was, in fact, the 15th July. And again Willis raised the issue of whether Maloy was medically fit to be before a Court.

Willis first asked Cussen to examine Maloy to assess whether being in court put him in danger – Cussen examined him and said he was not in danger. Maloy was arraigned and asked to hold up his hand – he did not do so but a constable raised it for him and was told to desist. Maloy did not answer the question about identity on any of the many enquiries (Port Phillip Gazette, 16 July 1842).

Maloy was carried into court by 2 police – appeared inanimate and perfectly unconscious – hung down head, eyes closed and remained motionless. (Port Phillip Patriot, 18 July 1842).

The prisoner being asked to hold up his hand was part of the process of identifying the person in the dock as the person named in the Information.

Cussen examined Maloy and informed Willis that he was not in danger by being in court.

The law relating to cases such as this, where the prisoner did not plead ‘guilty or not ‘guilty’ when the Information was read to him, was that the first process was for a jury to determine whether the prisoner was ‘mute of malice or by Visitation of God’ and such a jury was selected in this case.

Erskine Murray appeared for Maloy and the order in which Willis has noted the witnesses indicates that Murray set out to establish that Maloy was not fit to be tried. He called doctors Thomas, (a Surgeon, Bourke Street) Hobson, (a Physician, Collins Street), Martin (a Physician), and Watson (a Physician) – all considered him to to be mentally ill and unfit to be tried.

James Croke then called the three doctors who were on the Medical Board appointed by La Trobe. They expressed the view that the prisoner was not mentally ill and was ‘shamming’ to avoid his trial.

Willis then called: John Moore Airey R.N., J.P., a settler, on the Marrabool River. He had probably been one of the Justices of the Peace involved in the inquiry before the trial. His evidence that ‘When he was taken to the dead body he never altered a muscle’ could well indicate that the investigators had adopted the old English practice of showing the body to the suspect to see whether the reaction indicated a consciousness of guilt.

During the evidence the Court had to adjourn for half an hour; Maloy was given brandy and water as a stimulant. The evidence then continued and the jury gave their verdict that Maloy was’ Mute by the Visitation of God’ (Port Phillip Gazette 16 July 1842).

Willis then adjourned the case pending the accused being sent to Sydney for treatment at the hospital for the insane.

On 20 August 1842, the Colonial Secretary wrote to La Trobe that Malloy ‘found by jury to be insane’ could be sent to Sydney to be placed in Lunatic Asylum at Tarban Creek (VPRS Series 19 Unit 34; Mullaly pp. 221-6).

52. Transcript of Trial of Francis Bones for perjury

Willis Note Book No 13 page 121

July 16th 1842

Francis Bones – Perjury –

Pleads Not Guilty

George Gordon Wise Sworn

Assis’t Clerk of the Police Court. I hold before the general bus’s book of the Police Court. It contains the Evidence as given by the Wit’s in the Police Court & heard before the Court – these Depositions were taken before Major St.John & Capt’n Bunbury – proves the signature of the Magistrates – Bones was sworn – reads deposit’n “called for ½ a pint of a Rum p’d 2/s for it on the 24th of April – knows the House was served by the Landlord – Proves Conviction –

Wm McGuire Sworn

I live at Newtown – I appeared at the Police C’t I keep a Public House Wine & Beer licence I do not sell rum. I recollect the 24th of April I saw the Def’t on that day in my House – I did not sell him any Rum on that day or any other time I swear positively I never sold him ½ a pint of Rum on the 24th of April – If he swears that I did it wo’d be false – I was here on the 4th of July 1842 at Qr. Sessions. Pris’r swore I sold him ½ a pint of Rum which I never sold him. I Appealed to Qr. Sessions –

X’ex’d

I swear it was not 4 oclock – I won’t swear to half an hour – I was never asked wh’t time it was –

J. M. Connolly Sworn

I am an att’y of this (?) I was at the Qr. Sessions of the 4th of July – I saw the Def’t ex’d as a Wit’s. an Oath was administered Pris’r distinctly swore he bo’t & p’d for ½ a Pint of Rum at the House of Wm McGuire at Collingwood –

Daniel Pegg Sworn

know Wm MacGuire I recollect be’g at his House 24th of April last – I took Wine & Porter – No Rum – I saw Bones there I saw McGuire – Bones was not alone there were two others with him – Bones called for ½ pint of Wine – I saw McGuire draw the Wine out of the same Cask that I was drink’g some of drawn out of the same Cask – I cannot be mistaken I’ll swear McGuire neither sold nor gave any Rum to Bones

X’ex’d

I have seen you in V.D. Land – I don’t remember your dress that day – I was at the Police Office I wanted no accomplishm’t ?? It might be three oclock –

Thomas Pearson Sworn

I am a Carpenter I know Wm McGuire – he has a beer & wine Licence I recollect the 24th of April – I was twice at McGuires on that day 1st between 2 & 3 oclock next betw’n 5 & 6 – I saw the Def’t at McGuires a little before three – I heard him Def’t ask for half a Pint of Wine – He did not get any Rum – He did not call for any. I had one glass of Wine. The Def’t came in after me went out before me & did not get any Rum – The Wine I got was drawn of a Cask that stood in the Chimney at McGuires – The Wine came from the same Cask & from (the) same Cock –

X’ex’d

I swear it was before 3 oclock –

Frances Elridge Sworn

I live at Mr McGuires I recollect the 24th of April last – I recollect hav’g seen Def’t at McGuires on 24th of April – He had ½ a pint of wine on that day – It was not Rum, it was Wine – There was no Rum in the House –

X’ex’d

I recollect McGuire off’g Mo’y to Agnew I saw it by look’g through a Chink in the Wall – They, Agnew & Bones asked for it, & said they wo’d go to Launceston by the ? Agnew & Bones did not wish to appear at the Quarter Sessions – I did not see Def’t & Agnew come to the House but I saw them in the House I can’t say the exact day –

Defence

Wm Wright Sworn

Def’t said something ab’t an offer by McGuire to give them Mo’y – I did not see McGuire – I admit I employ’d the Pris’r as an inform’r

Wm Kitts Sworn

Knows nothing ab’t Pris’r

Verdict Guilty

Tr. 7 years –

The remainder of page 124 is blank.

Commentary

See commentary after trial of William Quirk for perjury (Willis Note Book No 13, p. 128)

53. Transcript of trial of Roger for Murder

Willis Note Book No 13 page 125

July 16

Roger an Aboriginal – Murder

Mr Barry –

Language – Foreigner –

John Severight Sworn –

I know the Pris’r have known him since Feb’y 1841. I have had frequent intercourse with the man during the last twelve Months I sho’d not think he was intimately acquainted with the Manners & Customs of White people – I think Pris’r perfectly understands the reason why he is bro’t here & the charge against him. If I understood the native language sufficiently – I think I co’d make him understand the course of Proceed’g.

Benj’n Hurst Sworn

I think I co’d make the Pris’r understand for wh’t the jury is impannelled but I doubt wh’r I co’d make him understand his R’t to challenge with’t a previous Instruction It wo’d take a consid. Time to instruct him so as (to) make him understand his R’t to Challenge – I have been connected with the Aborigines ab’t 3 yrs – The Pris’r does not appear to understand that the jury are to try him – I know nothing of my own knowledge as to any Civil Judicature among the natives

G. A. Robinson Sworn –

I have seen the Pris’r I have endeavoured to explain to him the Nature of the Proceed’gs ag’st him With respect to this Court my firm conviction is that he does not understand the Proceed’gs Pris’r has been ab’t two years with Mr Severwright I think the Pris’r has not that knowledge of the Customs & Manners of Europeans that Bob & Jack had – My opinion is that it wo’d be possible to Instruct the Pris’r so as generally to understand the nature of the Proceed’gs of this C’t The Pris’r is not as competent to understand the nature of the Proceed’gs ag’st him as other persons I have seen in the jail –

Foreman

The jury found a Verdict that the Pris’r is of suff’t Mental Capacity to understand the Nature of the Proceedings – One said he did not agree The Verdict was not recorded, so I sent them back to reconsider it – The jury returned & again put in the same Verdict unanimously.

Commentary

At the outset of these proceedings Willis had the Chief Protector, George Augustus Robinson, the Rev Benjamin Hurst and John Seivwright sworn as interpreters and asked Hurst to ascertain if Roger could plead to the charge of murder. Hurst reported to the Court that Roger was asserting that he was not at the place of the killing on the day it occurred. Willis said this sufficed for a plea of not guilty to be entered and then had a jury empanelled to determine if Roger had sufficient capacity to understand the nature of the proceedings and to make a defence.

The evidence set out and the verdict recorded relate to this issue. The trial was then adjourned, probably because all the witnesses were not present; the trial commenced on 19 July (see below).

54. Transcipt of the trial of Cold Morning for Stealing & putting in bodily fear

Willis Note Book No 13 page 127

July 18th 1842

Palpoartermin (difficult to decipher)

otherwise

Cold Morning an Aboriginal

Stealing & put’g in bodily fear –

Plea: Not Guilty –

Benj’n Hurst Sworn to Interpret

Does not sufficiently understand the language

Joseph Lacy Sworn to interpret

Pris’r only understands some words.

By consent a juror was withdrawn & the Trial stood over – The Pris’r to be instructed & an Interpreter obtained in the interim –

Commentary

‘Palpoartermin’ might be ‘Park –poo –amer-min’ which is the tribal name given in other documents.

The evidence given at Cold Morning’s committal was to the effect that on 2 May 1842 Joseph Ellis was proceeding up country, in the Portland Bay district, with a bullock team containing flour, wheat, barley. He was accompanied by another dray also loaded with supplies. The dogs gave an alarm and a native called Jacky Jacky presented himself at the other driver and threw a spear which was followed by a ‘whole shower of spears’. That man discharged a double barrelled gun at the blacks and reloaded it. One of the spears went through his hat. The prisoner called out to Ellis “Bloody Rogue, you Tygers plenty spear for you”. Ellis then swore ‘Tygers is a nick by which the deponent usually goes in the Bay’ and that he could ‘freely identify the prisoner as he has often seen him in the Bay’. The other bullocks ran away and a black took a whip and drove Ellis’ team off the road. The two men followed one team and later they found the other dray – the bullocks were missing as was some flour. Later some animals and property were found.

At these proceedings, on 18 July, the issue of Cold Morning’s capacity to be tried was under way with the Rev Benjamin Hurst and Joseph Lacy as interpreters when is became clear that the interpreters took the view that with further time they probably could get Cold Morning to understand the nature of a trial. Redmond Barry, for Cold Morning, and James Croke then agreed to adopt this course and the proceedings were aborted by using the withdrawal of a juror process. Edward Parker, one of the Protectors was given the task of instructing Cold Morning but by the time of the September Sittings of the Supreme Court it was clear that adequate instruction was not possible.

When Croke announced he would not proceed against Cold Morning, Willis expressed the view that the protectors should supervise him so that he didn’t continue depredations like Cocknose and Jupiter had (Port Phillip Patriot, 19 September 1842).

Cocknose and Jupiter had been apprehended earlier in 1842 but not brought to trial as the authorities accepted that they could not understand the nature of a trial. Official correspondence indicates that Willis knew of their case and of their further crimes when they were released (see Mullaly pp. 85, 114, 490-2).

The rest of page 127 is blank.

55. Transcript of Trial of William Quirk for Perjury

Willis Note Book No 13 page 128

July 18th 1842

Wm Quirk – Perjury –

Pleads Not Guilty –

Wm McGuire Sworn

I live at Collingwood & keep a Public House with a Wine & Beer not to sell Spirits I recollect 24th of april the Def’t was at my House that day & two others with him Bones & Agnew They asked for refreshm’t ½ pint of Wine. One of them objected to Wine & had a Glass of half & half Beer & Porter They never asked for Rum I swear positively – If the Def’t Quirk swore he asked or Bones swore it, it wo’d be false – He swore so but it was false. I was fined in consequence of the false swear’g of these parties –

George Gordon Wise Sworn –

Assist’t Clerk at the Police Office Deposit’n in Police Book in my hand writ’g signatures Major St. John & Capt’n Bunbury – The deposition of Wm Quirk is there he was duly sworn – Deposition signed by Quirk – Proves McGuire’s Convict’n –

Ja’s Mayne Conolly Sworn

I am a Solicitor – on the 4th of July a C’t of Qr, Sessions was held here – I recollect an Appeal heard on that day – McGuire Appellant – Mr Campbell & JWW & Mr Vernon were present – an oath was administered to Quirk – in the case of the appeal ag’st McGuire’s Convict’n Def’t distinctly swore that ½ a pint of Rum was bo’t & p’d for in his presence by Bones on the 24th of april at the House of McGuire at Collingwood –

Thomas Pearson Sworn

I reside at Collingwood I know Wm McGuire – he keeps a public House – I recollect 24th of April being in his House twice that day. I saw the Def’t there betw’n 2 & 3 in the afternoon – I took a glass of Wine there myself I heard Bones I think called for ½ a pint of Wine – If Quirk swore it was Rum & not Wine it wo’d be false – I saw the Wine served – it was served out of the same Cask I was served from –

Dan’l Glegg Sworn

I recollect be’g at Wm McGuires on the 24th of April last. I did not take any Rum, I took some Wine – I was served out of a Vessell that stood in the fire place – It was from the same Vessel that the liquor served to Bones Quirk & Agnew was drawn – I will swear it was Wine that was taken out of that Vessell – If Def’t swore it was Rum he wo’d swear falsely – They asked for ½ a pint of Wine if Def’t s’d Rum he wo’d swear falsely –

Fra’s Ebury Sworn

I am in the Service of McGuire I recollect seeing Def’t at his House – Bones & Agnew were with him – They had ½ a pint of Wine – No Rum – No Rum in the House – If they swore they had they swore falsely – Bones p’d for it 1s/6d – Agnew & Bones came afterwards – they went into the Parlour –

Defence

I can’t recollect any thing particular on the 23rd of April – Cha’s Swindle was ? at my House nor any other Constable

Guilty –

Tr. 7 yrs –

Commentary

Francis Bones, William Quirk and Henry Agnew were transported convicts and after becoming ‘Free by Servitude’ were sometimes used as ‘informers’ by the Melbourne Police. In this case they had gone to the premises of William McGuire in Collingwood. McGuire had a licence to sell Wine & Beer but not to sell Spirits. These three men informed Police that they had purchased rum in McGuire’s premises and he was charged with a ‘sly-grogging’ offence. At the proceedings in the Court of Petty Sessions, where McGuire was convicted, and, on McGuire’s appeal to Quarter Sessions, these men swore to to the purchase of rum. It became clear on the appeal that their evidence was perjured and the appeal succeeded. They were the charged with perjury and tried separately. On conviction each was sentenced to be transported for 7 years.

Both Bones and Quirk are recorded in the CRB as FS.

See Henry Agnew’s case in Willis Note Book No 14, p. 33 (September 15,1842).

56. Transcript of Trial of John Sinclair for perjury

Willis Note Book No 13 page 131

July 18. 1842

John Sinclair – Perjury –

Pleads – Not Guilty

Def’t Swore that he never authorized R. J. Howard to charge the price of the 2’d Job ag’st (Def’t –

Ryland John Howard Sworn

I am a Printer I know the Def’t he was in my employm’t from April to the 25th of June – I was summoned by him before the P.M. Mr. Geo. Airey for Wages He bro’t to my Office Labels to be Printed – The first label was finished on the 7th of May Black’g Labels – The 2’d Lucifer Labels – finished on the 12th of May – I agreed to do the Lucifer labels for 2 gns I had them Printed – I was summoned to Police Court for Wages – The agreem’t I made with the Def’t was to strike off 3,000 Lucifer Labels for two gns – I was to deducted it from his Wages at the end of the Quarter – This was the Def’t’s own Arrangem’t – Wit’s concurred – No other agreem’t was made afterwards till the day he asked me for his Wages – I let it run on till the end of the Quarter & when I wished to deduct it he wo’d not agree – I never warned or even alluded to the prior agreem’t till I wished to deduct the Lucifer job at the end of the Quarter – If Def’t swore at the Police Office that he never authorized Wit’s to charge Def’t with the price of the 2’d Job (viz? the Lucifer job amounting to 2 pounds 2s he wo’d have sworn falsely – It was a mutual understand’g that it was to be taken out of Def’t’s Wages –

X’ex’d

I swear positively Def’t promised to pay for the last job – I told you if you get a job I sho’d be very glad of it as you were doing nothing On the 30th of June Def’t disputed his liability to settle for these two jobs – When I was summon’d – to the Police Office Def’t admitted his Liability for the 1st Job – & the reason he did not pay the 2d Job was that there was overcharge of 2s – ab’t 2 min’s afterwards Def’t denied his Liability altogether – When asked by the P.M whether Def’t rece’d any Mo’y for that job Def’t said No. When asked if I rece’d goods for the Job I said No. The 1st Am’t was deducted of Def’t’s Acc’t 1 pound 5. I don’t know as to 1d for a newspaper – As near as I can remember I said that I wo’d rather ? them 20s that the bother sho’d have taken place at the Police Office I did not like the Idea of hav’g a Man Transported for 7 yrs – I fur’r stated at the same time that I tho’t Mr Sinclair (Def’t) had spoken in the heat of passion & wo’d be sorry for it afterw’ds. I know him to be of very great temper – This was my reason for having said this I don’t think he wo’d voluntarily have done so had he thought of the consequences – I have nothing to say ag’st your Character – On the 7th of this Month when I bro’t a charge at the Police Office ag’st Def’t I was of Opinion he had received an Equivalent for this Job – I said if it co’d be settled out of Court I sho’d be glad of it –

Per Cr. Pros’r

I am of opinion the Def’t swore as he did to gain his Ends & obtain the 2 pounds 2s for the Labels –

H. A. McMillan Sworn

Clerk & Collector for the Times Newspaper – I know Def’t – I know Def’t he was pressman – I recollect Def’t bring’g a job to the Office Labels for Lucifers – Def’t admitted his Liability for two jobs. Lucifer one – he told me I might as well book them to him & he wo’d see them paid. No distinct time specified – I did not enter the jobs in the Books of the Office I got a rec’t from Def’t for two jobs, one a Lucifer job – Rec’t for Lucifer labels given for Lucifer Labels – He did not state when he was to pay for them – I have no recollection of the terms of the Agreem’t – He told me he wo’d see it paid. I debited Def’t with the job in the Books – Def’t Knew it – My Impression was that there was agreem’t betw’n Def’t & Howard that Def’t sho’d settle with Howard – Def’t guaranteed the Pay’t to me – If the Def’t swore at the Police Office that he never Authorised Howard to deduct the Am’t of that job he wo’d not have sworn the truth –

Ja’s Mayne Conolly Sworn

I recollect be’g at the Police Ofice on the 6th of July – I recollect hav’g seen the Def’t there on that day – I x ex’d him on that day – respect’g a demand for Wages made by Def’t ag’st Howard’s – under the Masters & Serv’ts Act I heard him sworn on that day – in the presence & by the direction of the Magistrates – The Def’t swore in reference to an Item charged ag’st him as a set off – amount’g to 2 pounds or 2 pounds 2s – he distinctly swore he was not liable to have that set off ag’st him in as much as he had not authorized Howard to charge it ag’st him nor was he in any way liable for it –

X’ex’d

You admitted the 1st Acc’t you disputed the 2’d in the first instance immediately afterw’ds swear’g what I have now deposed to –

Defence

John Maclehose Sworn

I was the Police Office on the 6th of July when I sued Howard for my Wages –

Verdict

Not Guilty –

Commentary

This perjury charge arose out of civil proceedings, in the Court of Petty Sessions, before a Magistrate about a printing contract.

James Mayne Conolly was a Solicitor and had appeared against Sinclair in the civil proceedings.

John Maclehosewas a Stationer & Book-seller in Collins Street).

The remainder of page 135 is blank.

57. Transcript of Trial of Henry Concannon for Embezzlement

Willis Note Book No 13 page 136

July 18, 1842

Henry Concannon – Embezzlem’t

Not Guilty

Wm Sheen Sworn

I live in Lonsdale Street Joiner I know the Pris’r on the 9th of this Month on a Saturday I went into a Shop in Collins Street to purchase a Kettle & other Articles I bo’t a Frying Pan & other Articles – I understand Mr Paton is the Master – I p’d 13.s I got a Bill – Bill prod’d – I saw the Pris’r write the Bill as I received it, with the Except’n of my Indorsem’t – The Pris’r served me & gave me the Bill

X’ex’d

Bill the same I saw Pris’r write it Griffith my Master sent me to buy these things I p’d 13s for them – Pris’r took a Note of the Private Marks on a bit of Waste Paper I will swear the Pris’r did not put the Mo’y in his Pocket

Re’ex’d

Bill written on a piece of paper taken from a Quire

And’w Paton, Sworn

I have a shop in Collins Street – Hardware – The Pris’r was my Shopman there since last Oct’r He is to receive Mo’y & give receipt for it. Proves Bill – He sold Articles on the 9th of this Month he Accounted to me partly for Mo’y he received – he received for the Articles in the Bill 13s & gave Cred’t for 11s & 9d – Items – Book & Bill compared – Sold for more than booked by 1/3d. I asked Pris’r if the statem’t in the Book was all he taken that day & he said it was – I sent a party named Griffith to purchase who sent last Wit’s –

X’d

A great many other goods sold that day. I know these Correspond from the Cost price. I have other similar goods rang’g in price ab’t 6d – There might hve been an error there – on very good terms with this young man – I consid’d he was liv’g beyond his means I sent the Pris’r to the Theatre on bus’s

per Jury–

Defence

Wm Garrett Sworn

I have know Pris’r since he was born – My opinion is that Pris’r is as honest as he can be – Journeyman Carpenter I have associated with Pris’r I have seen him there

Commentary

The Port Phillip Herald of 18 July, 1842, reports that Concannon was acquitted.

The remainder of page 137 is blank.

58. Transcript of Trial of Figara otherwise Alkepurata otherwise Roger for Murder

Willis Note Book No 13 page 138

Murder – not guilty

July 19,1842

Figara otherwise Alkepurata otherwise Roger –

Murder

Not Guilty –

Mr Croke – Want of Intelligence

Rev’d B. Hurst sworn to interpret

Ja’s Brock Sworn

Mr Barry requested the Interpreter to explain the nature of the Oath to Pris’r.)

My name is Ja’s Brock I knew the late P’k Codd he was my overseer – P’k Codd is dead, he died on the 19th of May 1840 he was murder’d by the natives – I saw him struck with a Leangiul Within five min’s after he died, he received a great many blows at the time – I know the Pris’r he was present he was one of the Party, the Chief of the Tribe –

I saw him strike him – I swear possitively as to his Identity & I saw him strike the dece’d –

Interpreted

X’ex’d

This occurrence took place 19th May 1840 I had often seen the Pris’r before – five times – I first casually observed him among 18 natives – All naked – His face was not smeared – from seeing Pris’r the first time only I don’t think I co’d have identified him. I co’d identify some of the other Men of the Tribe – great difference in size Pris’r taller than the rest – The Chief of the Tribe. On the day of Mr Codd’s murder sev’l Natives came with the Pris’r 17 or 18 of them – The Tea Scrub near the place where Mr Codd was killed was tall & thick – Codd went into the scrub at first – Rooney went also – Rooney was struck first in the scrub. When I heard Rooney cry I turned myself to the Natives & put myself into a posture of defence Mr Codd was standing close to me – The attack on Mr Codd & myself was almost simultaneous Mr Codd was struck to the ground before I was struck at – they hesitated before they struck at me There were 12 natives in all who were engaged with us – I possitively swear the Pris’r was one of the Men who struck Mr Codd one of the blows of which Mr Codd died – I describ’d the Party who perpetrated the offence as being a fine Athletic Man – First time after this occurence that I saw the Pris’r was at Mount Rouse – I did not know the Pris’r the first time I saw him there – I recognized him afterwards – the 2d time I saw him ab’t a fortnight afterwards – the first time I saw him there he was clothed & his face was painted White – The 2d time I saw him he was naked I recognized him immediately there – I do possitively swear before the Court & Jury that the Pris’r is one of the men who struck Mr. Codd and which with other blows occasioned his death. Pris’r belongs to the Colore Tribe –

There is only one Tribe belon’g to that place Mt. Rouse Pris’r’s Eldest Bro’r is the Chief of that Tribe – His Eldest Brother is like the Pris’r but much Older – I don’t think he was of the Party – I can’t swear the Pris’r’s Bro’r was not there when Mr Codd was killed – Immediately after the Murder I co’d & did see many natives that I co’d not recognize now – I won’t be possitive that shortly after Mr. Codd’s Murder I did not say a Man with Grey Hair was one of them – The day of Mr Codd’s Murder the natives came to my Hut between 9 & 10 oclock

Mr. Codd was killed between 10 & 11. I did express myself as being confident of being able to identify the Pris’r – When I saw the Pris’r, with his face Whiten’d & Clothes on I co’d not recognize him Pris’r belongs to the Colore Tribe, he takes his Name Alkiperete from a Stream of Water – Good Water – the stream of Water is about a Mile from Mt Rouse.

Patrick Rooney Sworn

I was living with Mr Brock on Tuesday the 19th of May 1840 – I was at his Station ab’t that day – I saw the Pris’r there that day. The day Mr Codd was killed – I went into the Scrub near Mr Brock’s Hut on that day – Some of the Blacks were with me – Pris’r went into the Scrub the 1st time – I am possitive the Pris’r was one – I went into the Scrub 2 or 3 times. The 2’d or 3’d time I was attacked – the Pris’r did not go in the 2’d or 3’d time – I saw Mr. Codd when I was in the Act of fall’g, he was down, I fell within 6 feet of him – I never saw him since – the last time I saw him before he was near me Mr Codd was alive & well – I have never seen him since – I am possitive the Pris’r was one of the Natives that went to the Scrub a short time before I saw Mr Codd lying on the gro’d – I co’d not be mistaken as to the Pris’r On the 19th of May 1840, the Pris’r was the lead’g Man the Spokesman I had seen the Pris’r before – I took him to be the tallest Man present on the 19th of May – I saw the Pris’r some short time ago at Mt. Rouse – I pointed Pris’r out at Mt. Rouse as one of the men that killed Mr Codd – He asked who wounded me – I said it was him – good while ago – I told Pris’r he was one of those who murder’d Mr. Codd – he denied it –

X’ex’d

I was confined to my bed for some time I have not the slightest difficulty in fix’g the date – I am not mistaken ab’t the 19th of May – it was then – I saw three Natives when I was struck – the 2’d or 3’d time the Pris’r was Outside. It was smooth gro’d where Mr Codd was struck

Defence Mr Barry

No testimony that the Pris’r inflicted the Mortal Wound –

Guilty –

Mr Barry in Arrest of Judgement –

Object’d that it does not appear sufficiently clear from the Evidence that the Pris’r was guilty of the murder as Principal in the 1st degree, for which Offence he was arraigned & tried. – Wound given Def’t not proved to be the Mortal Wound –

I overruled the Objection –

Sentence of death passed

JWW

The remainder of page 142 and few remaining pages in this book are left blank.

Commentary

This killing was reported to the authorities immediately after it occurred on 19 May 1840. In essence, the allegation was that James Brock, Patrick Rooney and Patrick Codd were outside their hut that morning while Codd was playing his bugle when a group of Aborigines approached. They were welcomed and given damper and then it was suggested that they work to bring in some tea tree which had been cut in the scrub about 300 yards from hut. Some work was done and then, without warning, the white men were attacked. The early reports identified Roger as one of the attackers and Codd’s relatives and friends were concerned that no action was taken to bring him to justice. There was clear evidence that Roger was in and about the Mount Rouse Aboriginal Station which was under the control of Charles Seivwright, the Assistant Protector. Eventually, a warrant was issued for Roger’s arrest and Foster Fyans apprehended him in April 1842.

The absence of any reference to Charles Seivwright in this trial was due to the fact that he had then been suspended from duty in circumstances unrelated to Roger’s case. His brother, John, did act as an interpreter.

Before the trial James Croke had taken steps to ascertain that the prisoner’s tribal name was ‘Figara otherwise Alkepurata’.

James Croke must have used the words ‘Want of Intelligence’ in his opening address to the jury but it is now difficult to determine their significance. It is unlikely that they related to Roger’s mental capacity as that was never in issue. One can only wonder whether Croke was referring to the then generally held view that Aborigines, like other such coloured races, were less intelligent than white people in relation to some of their activities.

Redmond Barry’s cross-examination was directed to the issue whether Roger was present during this attack and that the witnesses were confusing Roger with his brother. The evidence that Brock did not identify Roger when he first saw him at Mount Rouse was in the context that Roger’s face was then covered in some white substance. James Croke alleged that Charles Seivwright had deliberately done this to ‘protect’ Roger.

Redmond Barry’s point when he moved in Arrest of Judgment was that the verdict was wrong in law in that Roger was charged as a ‘Principal in the 1st degree’ whereas the evidence showed that he was merely an ‘accessory’. Willis would have overruled this objection on the basis of the doctrine of concert ie that all those acting together were Principals in the 1st degree and it was not to the point that it had not been strictly proved which of the Principals inflicted the mortal wound.

Willis’ initials after the note of the death sentence would have been an indication to the clerk (who had to transcribe the notes of evidence) that the notes were accurate and adequate. The notes were sent to the Governor in Sydney so that the Executive Council could determine whether the sentence should be carried out.

Willis’ correspondence with the Governor made it clear that he took the view that the sentence should be carried out and that the execution should be at Mount Rouse. The practice of carrying out a death sentence at or near the place where the murder had occurred was not unusual in the UK during the 18th century. It was based on the view that the deterrent effect of the sentence would be greater in the locality. The authorities rejected this suggestion and Roger was executed on 5 September in Melbourne (see Mullaly pp. 259-64).

 

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