Casebook 15 – Transcripts and Commentary

[15 May, 1843 – 24 June,1843]

Case List

• 1. James Shaw – 15 May 1843 – larceny – guilty – imprisonment for 8 months with hard labour
• 2. Charles Rix alias Panton – 15 May 1843 larceny – pleaded guilty – imprisonment for 6 months with hard labour
• 3. Robert Hancock – 15 May 1843 larceny – acquitted
• 4. Robert Uppsey – 15 May 1843 uttering forged cheque – guilty – transported for life
• 5. James Simeon – 15 May 1843 fraudulent insolvency – guilty – new trial ordered
• 6. Robert Nicols – 18 May 1843 – wounding with intent to murder – guilty of assault with an intent to do some grievous bodily harm –judgment arrested and prisoner discharged
• 7. George King – 16 June 1843 – horse stealing – guilty – transported for 15 years.
• 8. John Phillips – 16 June 1843 – stealing a letter – acquitted.
• 9. Partick Brennan – 21 June 1843 – assault – guilty – imprisonment for one week with hard labour.
• 10. Sarah Bruce – 21 June 1843 – larceny – acquitted
• 11. Mary Anne Bruce – 21 June 1843 – receiving – acquitted
• 12. Richard Guiness Hill, John Beswicke, Joseph Betts 24 June 1843 – Habeas Corpus

 

1. Transcript of Trial of James Shaw for Larceny

Willis Note Book No 15 page 1

Criminal Session: May 15^th 1843

James Shaw: Larceny

Cornelius Sullivan: sworn

I am a constable. On the 1^st of May I saw the prisoner in the morning in his own house in Flinders Lane. I went to his house and saw some cedar planks (identifies them). I asked him where he got the cedar. He said he bought it on Saturday the morning before.

Cross-examined

I saw you first on Sunday morning going to your own house. The boards were inside prisoners shop.

James Webb: sworn

I am a builder. I live in Stephen Street on the Eastern Hill. Swears to the planks in particular mark on the wood. I have compared these with ?? plank. I swear these boards my property. I saw the planks in my yard on Saturday night. The distance from my yard to prisoners is about a half a mile.

Cross-examined

You have bought cedar from me. I am not aware that you have collected cedar from the sawyers. You might have done so.

Samuel Wilson: sworn

Carpenter in employ of last witness. I recollect Monday ? of May I was about 10yards from the building, about ½ past 6 on the morning. He had 3 cedar

p 2 planks on his shoulder. I know these planks. I swear they are Mr. Webb’s, value 7 to 10 shillings. I saw a man come out of the building in the direction of Flinders. I went into prisoners house and saw there 3 planks standing up by the door.

Jonathon Stainer: sworn

I have been in Webb’s employment. I was never authorised by Webb to sell timber (swears to planks). I saw them on Saturday. I saw them in Webb’s shop on Sunday and in the prisoner’s house on Monday.

CASE CLOSED.

Defence

I was buying the planks from a man at the building.

Daniel Kelly: sworn

You bought cedar off my mate and paid for it. You bought cedar off Mr. Webb.

Prisoner did not buy cedar from me or my mate on the Monday. He did not buy the cedar in question.

GUILTY

8 months imprisonment: Hard labour

Commentary

Shaw is recorded in the CRB as ‘Free’.

‘Stephen Street on the Eastern Hill’ is now Exhibition Street.

Kerr Directory (1842) lists a James Shaw as a publican in Little Flinders St – the Bricklayer’s Arms

 

2. Transcript of Trial of Charles Rix Alias Panton for Larceny

Willis Note Book No 15 page 3

May 15^th 1843

Charles Rix – Alias Panton

PLEADS GUILTY

6 months imprisonment: Hard labour

Commentary

The depositions disclose that Rix stole an oppussum cloak and a book from the house of Charles Graydon, a fishmonger in Flinders Lane (VPRS Series 30P Box 2 – 1-21-2).

Rix is recorded in the CRB as FS and with the alias ‘Spautan’. In a margin at top of depositions of Constable Corry, at the committal, is ‘Queen v Charles Rix’ then in what appears to be different ink ‘Alias Spauton Via Westmoreland 1835 sentence 7 years free of original sentence?’

The Westmoreland arrived in Sydney in 1835 (Bateson, p.389).

 

3. Transcript of Trial of Robert Hancock for Larceny

Willis Note Book No 15 page 4

May 15^th 1843

Robert Hancock: Larceny

Robert McCormick: sworn

I am a constable. I know the prisoner. On Sunday the 23^rd of April I saw the prisoner. I found a shawl concealed in his breast inside his coat. I saw him in Collins Lane. I watched his movements. He went up Elizabeth Street and went into a house and coming out I got the shawl in his possession. Identifies the shawl taken from the prisoner by 3 or 4 twine marks. Prisoner said he got it from a girl of the name of Little Ann. The shawl was identified by Agnes Hunt in the Watch House.

Cross-examined

I took the shawl from your breast.

Agnes Hunt: sworn

I live in Little Collins Street. I know the prisoner. I have seen him often before. I took a walk on Sunday 23^rd April. The shawl is my property. The prisoner was ? in the house where I lived. I missed my shawl.

CASE

NOT GUILTY.

Commentary

The depositions disclose than Hancock lived in John Stewart’s Australian Hotel in Little Collins St and that Mrs Hunt lived opposite the hotel. (VPRS Series 30P Box 186 – NCR 79)

 

4. Transcript of Trial of Robert Uppsey for Forgery

Willis Note Book No 15 page 5

May 15^th 1843

Robert Uppsey: Forgery

Michael David: sworn

I live in Collins Street and conduct the establishment for Cashmore & Co. I recollect 5^th April. I saw the prisoner about ½ past 7 or 8 in the evening. He purchased clothing to the amount of 6 pounds. He produced the cheque, handed to me and read. I gave him 6 pound in goods and 2 pound in cash. Prisoner said when he tendered the cheque, that he had just come from Portland (?), was a servant of Messrs. Henty and received the cheque in payment. The prisoner endorsed the cheque “Anderson”.

Frederick Pitman: sworn

The cheque was not signed by Henty Bros.

GUILTY ON THE 3^RD COUNT

Transported for life.

Commentary

Frederick Pittman was agent for Messrs Henty Bros of Portland Bay, and, at the committal,he swore that he knew their signature and the signature on the cheque produced is not theirs. ‘I have been connected with them long enough viz five years not to be mistaken’ (VPRS Series 30P Box 2 1-21-4).

‘GUILTY ON THE 3^RD COUNT’ – the Information would have contained several alternative counts alleging forgery and uttering and naming, as victims, the drawer of the cheque and the shopkeeper. The CRB records the conviction as ‘uttering forged cheque’.

Uppsey is recorded in the CRB as Robert Apsey and as ‘Free’ and he was sent to VDL (VPRS Series 19 Unit 47).

 

5. Transcript of Trial of James Simeon for Fraudulent Insolvency

Willis Note Book No 15 page 6

May 15^th 1843

James Simeon: Fraudulent, Insolvency, False answer

Mr. Verner Esq. (Magistrate) (C.C.):sworn

PROVES THE PROCEEDINGS

? examined before me . He subscribed and swore to the deposition produced.

Previously read over to him the ? of the deposition ?

Cross-examined as to ? being correct

Mr. Hart: sworn

I was a draper. I recollect one evening passing Mr. Simeon’s house. He called me in. He requested my opinion as to his uncle at Hobart town. To request his uncle to make a claim against him for 5 or 600 pounds and he said that at that time he owed his uncle 70 pounds (somewhere about October last). He thought the house he was then in would not answer his expectations. I endeavoured to dissuade him from such a course.

Cross-examined

I do not know of my own knowledge that he did adopt such a course of proceeding. I stated this at the meeting of Simeon’s creditors before he went away. Before the sequestrations – explains why he mentioned the conversation before (deposing?) (defendant) and himself to the creditors.

Andrew Russell Esq.:sworn

I am a creditor of the defendant. I recollect having gone to his house of ? to ascertain if he were still in the country. I went to a little shop he had after defendant left the country. We took possession of some boxes. I was not provisional trustee at the time. I found the letter produced among defendants loose papers (put in). I was at the meeting at Hinds store. ? ? what he has now stated to me at Hinds Store – defendant wished to arrange affairs.

H.F. Gurner: sworn

? ? in consequence of this cause I wrote to David Moses on or about the 20^th of April last. I received an answer (read).

Cross-examined

My letter to Mr. Moses was dated 10^th of April (received?) Moses’ letter on the 2^nd of May.

Solomon Benjamin: sworn

(Proves the letter)

A.H. Hart: sworn

I have not been Hobart Town since Mr. Moses has been there. I have known Moses from my earliest infancy.

John Levy: sworn

Clothier – the dependent spoke to me on passing my door. What to think of my ? hump – He might have a small hump on his back near the shoulder as if something were underneath the coat. He did not use the expression “swag” to me on this or any other occasion. On the deposition being read over Mr. ? says he must have said so.

CASE

GUILTY.

Commentary

James Simeon was a draper with a shop in Collins St and when he became insolvent the usual examinations were conducted before William Verner, Commissioner of the Court of Insolvency, a division of the Supreme Court. One of the allegations made against Simeon was that he attempted to get his uncle, David Moses, a respectable merchant in Hobart town, VDL, to claim that Simeon owed him £500-600 rather than the £74/4/4½ which was owed. Solomon Benjamin was Moses’ agent in Melbourne and was trying to collect the amount actually due. Henry Gurner, the Crown Solicitor, had written to Moses to try to obtain some relevant documents.

John Levy’s evidence related to an incident in which he had seen Simeon, near his shop, with a hump on his back as if he was secretly removing stock. The allegation was that Simeon referred to this hump as a ‘pocal’ which was the Yiddish for ‘hump’.

Redmond Barry appeared for Simeon and ascertained, during his cross-examination of Verner, that Simeon swore on a bible containing both the Old and New Testaments. Verner swore that ‘I don’t think he mentioned his religion’. (Port Phillip Patriot 18 May 1843). There was, and still is, a practice whereby some Jews, when being sworn, will hold the Bible (containing both the Old and New Testaments) in such a way as to indicate that they are swearing solely on the Old Testament.

Barry, in his final address to the jury, contended that the Jewish witnesses had not taken the oath correctly. Asher Hart, after Willis’ charge to the jury but before the jury retired ‘explained his impression of an oath which was that Jews considered an oath equally binding whether sworn on a book or not always keeping in view the commandments “thou shalt not bear false witness against your neighbour” and “thou shalt not take the name of the Lord thy God in vain’” (Port Phillip Gazette 17 May 1843).

Although the jury convicted Simeon, Willis has no note of any sentence but the CRB records ‘New trial ordered’. None of the surviving material gives any indication of why that order was made and one can only assume that Redmond Barry moved in arrest of judgment by reference to some defect in the Information or that some element of the offence had not been proved and that Willis considered the point to be valid and ordered the new trial. It is unlikely that the point was that some witnesses had not been properly sworn because that defect could have been cured on any new trial.

In the August sittings of the Supreme Court, before Justice Jeffcott, James Croke did not lead any evidence and Simeon was discharged (Port Phillip Gazette, 5 August 1843); see Mullaly pp. 724-7).

 

6. Transcript of Trial of Robert Nichols for wounding with intent to murder

Willis Note Book No 15 page 9

May 18^th 1843

Robert Nichols: wounding with intent to murder

PLEA – NOT GUILTY

Mr. Croke 2^nd Vict ch 85 and 4^th sect. Cut or wound. Sorry he did not murder.

John McFairn Knox: sworn

I was a passenger on board the Brig “Gannett” from Glasgow to New Zealand. The prisoner was the captain. I recollect the 28^th of April last. I was on the Quarter Deck of the Brig on that day. The captain spoke to me. He asked me to look at the chart to see if I knew where the vessel was. When I gave my opinion without the captain saying what it differed from his or not. He began to give me most abusive language. This was in the afternoon about an hour after dinner. I had a glass in the afternoon with him – he was not quite sober. I remonstrated with him and said he would not do so on shore. He asked me if I wanted to fight. I said no. He then pushed me off the Quarter Deck and took a belaying pin and knocked me insensible with it.

Cross-examined The skin was not broken

This was on the afternoon of the 30^th April. I took a glass of gin and bitters, then a glass of rum. I swear I was insensible. I walked down afterwards, after I came to myself. I drew a knife to defend myself. The people held me back. I was in a state of stupor from the effect of the blow. I will swear I did not take 4 glasses of grog before I was struck. It was not for information. The prisoner asked me where we were. The skin was not broken.

John Wright: sworn

I was surgeon on board the vessel. I know the prisoner, captain of the vessel. Last witness was a patient of mine on the 20^th April in the afternoon, about 1 ½ hours after dinner after he received the blow. About an hour after he received the wound there was a tumour about the size of a duck’s egg, slight abrasion of the cuticle and a small ?. Small particle of coagulated blood on the roots of the hair. No blood trickled from the wound, abrasion of the cuticle or outer skin. The true skin was not infused. It was not an ? wound. It was a contused wound. No abrasion on the back part of the head. I have seen death ensue from more trifling wound. I was ? when the blow was given. I heard the prisoner apply abusive language to the last witness. Who said the captain dare not apply such language to these on shore. If he was struck Knox said he would strike again. After I came on deck the captain ordered Knox forward ? or I’ll have you seized up and flogged. The captain pushed Knox as far as the long boat and said strike if you dare. Knox then put himself in a position of defence.

The Captain had the chart in one hand and was pushing Knox with the other. The Captain then went back and got hold of the belaying pin from the rack and again advanced towards Knox with the belaying pin in his right hand, down by his side rather than behind him. He advanced towards Knox and struck him a blow on the head with it. Knox staggered. The Captain hit him a second time on the head with the belaying pin. The abrasion of the skin may have been from Knox ? the wound. Knox fell down against some wood. He did not fall on the side of the head where the wood was. The Captain then hit Knox two or three blows on the head and other parts of the body. The Captain then left him and said “Is he not dead yet? I’ll go back and finish him”. He went back and hit him another blow on the back of the hip with the belaying pin. Both were excited with drink – slightly. If they had not been fighting I should not have noticed that they were excited. The Captain was about to repeat the blow when he was seized by Isaac, one of the men.

Cross-examined

After we had been a short time at sea some slight alteration took place between the Captain and myself. A tumour or swelling is ? almost immediately the blow is struck in 5 or 6 minutes. There is likely to be co-agulated blood on the wound. I have given the sailors a glass of gin and bitters – rum – never too excess. Once when I gave spirits the sailors were on duty. I never drank with the sailors myself. I just put it to my lips when we crossed the line. I was at the foot of the companion ladders when this occurrence took place. I just came on deck as the Captain was pushing Mr. Knox and ordering him forward. “Is he not dead yet?” was said by the Captain when Know was lying in a state of insensibility. I swear that I distinctly heard this. I went up among others when the Captain was seized last by Isaac Laurie. Knox was an intermediate passenger. He dined in the cabin at first but said the food there was as bad that he demanded his rations as an intermediate passenger.

I bled Mr. Knox about an hour after. I took 18oz. of blood from him. After the Captain struck Knox the first time he went about five or six yards before he became back the 2^nd time. I considered Knox’s life might be in danger before I bled him.

John Grant: sworn

I was a passenger aboard the Gannett. Prisoner was Captain. I know Knox. I recollect the 28^th April on that day. I heard some high words between the Captain and Knox. I went on deck and saw the Captain standing with a chart in his hand, He called Knox a d….d ?. Knox asked him “Was he in earnest?” The Captain said “I am. You are stupid”. ? said the Captain and used several other opprobrious terms. “I will have you (Knox) tied up and flogged”. Mr. Knox in ? ? said “Would you?” The Captain lifted up the chart to strike him. Knox put himself in a posture to ward off any blow. His attitude was defensive not offensive . He frequently threatened Knox afterwards without Knox in any way resenting it. He then pushed Knox three successive times off the deck, at the same time ordering him off and follows him. All the passengers frequented the quarter deck. The last time the Captain pushed Knox, Knox staggered a good deal. The Captain then retreated to the side of the ship and took hold of the belaying iron and came up to Knox with it behind him. He went forward to Knox with it and struck Knox on the side of the head. Mr. Knox, as if stunned with the blow fell forward – when falling – and after he had fallen the Captain struck him repeatedly about the head. Mr. Knox was by this time lying senseless on the deck near the galley. One of the seamen came to the Captain and remonstrated with him and said Mr. Knox might have been dead. I think I said myself I thought he was dead. The Captain expressed his disregard whether he might be dead or not. I think the Captain said, “I do not care whether he is dead or not”. He the Captain then went back and struck Knox again muttering something. The belaying pin produced was the one used.

Cross-examined Swears to the belaying pin. I know it by a mark. I had not been on intimate terms with the Captain on account of an assault on myself. Both the Captain and Knox appeared to have been drinking. We wore (Chidgeons ?) to defend ourselves from the Captain.

CASE

??

Donald Nichol: sworn

The Captain has been brought up to the sea 3 or 4 years Captain of a ship.

DEFENCE

George Richie: sworn

I am steward on board the Gannett. I came on deck when Knox and the Captain were looking at the chart. I saw the Captain and Knox have some words. Knox said he would give the Captain a d…..d smash in the face. The Captain dared him to do it. Knox refused and stood always in the same manner. The Captain pushed him forward as far as the stern of the longboat and the Captain returned aft again ? ? by Knox who was squaring at him. The Captain put Knox forward the second time. The Captain seeing follow him pulled out a belaying pin and struck Knox on the head. After the Captain struck Knox the first blow Knox rushed in on the Captain and attempted to throw the Captain down. The Captain struck him several times about the shoulders and back with the belaying pin. When they got near the forerigging Knox fell down on the deck. Knox was tipsy. He lay on the deck about 15 mins, 10 minutes insensible. He was pretty tipsy. He could not walk very well. The forepart of the day when Knox got up he pulled a knife out of his pocket and insisting in getting back to stab the Captain. He was held back by Isaac Laurie and Grant. Shortly after that he went down the half deck and loaded a pistol. He came on deck sitting on the ? hatch wanting for the Captain to order to shoot him. I never heard the Captain say “Is he dead yet” or “I’ll finish him”. I was quite near enough to hear if they were used. Knox took a whiff at Gordon’s pipe, got sick before the Captain pushed Knox. Knox squared and threatened to strike him. Knox was drunk as often as he could get it.

(4 lines of writing struck out)

The Captain spoiled the passengers at the beginning. He gave them too much liberty.

Cross-examined

I don’t know that I am a particular favourite of the Captain. I don’t know how many men are to give evidence. Knox when in a fighting posture was as near to him as I am to the messenger – close by – Mr. Nichol and Mr. Gordon were on deck. Wright was not there – I did not hear the Captain call Knox to look at the chart. I came up as they were looking at it. I did not hear Knox say they were near Phillip Island, if Wright said that. If Knox had only taken two glasses in the morning before the assault he would not have sworn truly. Knox got five glasses of spirits. I did not see Grant present when he gave out the gin. The Captain was mild and kind to his passengers. I did not observe any but I saw Lowings on the deck when the assault took place. The prisoner struck Knox first – hit Knox before. Held up his fist at the Captain in a threatening and insulting manner.

GUILTY of an assault with an intent to do some grievous bodily harm.

“motion in arrest of independent good”

(Stay of proceedings after verdict on grounds of error)

Commentary

The Supreme Court sitting in Melbourne had jurisdiction in this case as UK legislation provided that offences committed on board any British registered ship could be heard in any British Colony in which the ship docked.

‘Mr. Croke 2^nd Vict ch 85 and 4^th sect. Cut or wound. Sorry he did not murder.’ – these are notes of aspects of James Croke’s opening address to the jury. Probably Croke referred to the UK legislation – 7^th Will 4 & 1^st Vic Chap 85 secs 3,4. – which covered the wounding type offences likely to have been included in the Information in this case.

Croke’s comment that the prisoner was ‘Sorry he did not murder’ most probably related to the evidence later given by John Wright ‘The Captain then left him and said “Is he not dead yet? I’ll go back and finish him”’. He went back and hit him another blow on the back of the hip with the belaying pin

Readers will have noticed that although the word ‘wound’ was sometimes used by the witnesses, the detail of the evidence about the injury was concerned with the issue whether the true skin was ‘broken’. This was very significant as the law then was that in order to constitute a ‘wound’ the true skin, and not merely the cuticle or outer skin, had to be broken.

The CRB records the verdict as ‘wounding with intent to do some grievous bodily harm’ and that ‘judgment arrested and prisoner discharged’. This is probably more accurate than Willis’ note of ‘GUILTY of an assault with an intent to do some grievous bodily harm’ which was probably another of the alternative counts in this Information.

The Port Phillip Herald of 19 May 1843 reported that the judgment was arrested because the Information alleged wounding but Edward Eyre Williams, for the prisoner, argued it should have alleged ‘striking’ or ‘beating’. Willis agreed with this submission (see Mullaly p. 364).

 

7. Transcript of Trial of George King for Horse stealing

Willis Note Book No 15 page 18

June 16^th 1843

Supreme Court – Criminal

George King: Horse stealing

Hugh Jamison: sworn

On the 27^th May I was in the direction of Newtown. I recollect having seen a chestnut mare. ? ? ? I did not sell her to the prisoner. ?

M IV on the near shoulder. She had been missing from the opposite side of the Yarra about two months ? On seeing the mare I accompanied a boy to the butcher’s shop in Newtown to look for his father. I took the boy and mare to town and gave them to the Chief Constable. I never sold the mare to any one.

George Heffernan: sworn

I am a constable. I recollect the 28^th of May. I took the prisoner into custody at the Travellers Rest. He for some time refused telling me his name. After some hesitation he said his name was King. I took him into custody and some short distance from the Travellers Rest he said my son and horse have been taken up on suspicion. I suppose that’s the reason you have taken me. I will give you 5 pounds he said to let me go. He said again come back again to the Travellers Rest I have plenty of money. My wife is there and she’ll give you 5 pounds to let me go in the bush and you will never see me again.

Cross-examined

You were in the Travellers Rest.

James Edgar: sworn

I am a horse breaker – on Saturday the 27^th of May I was at Newtown. It was a chestnut mare in the property of Mr. Jamison, tethered. I afterwards saw a boy riding the mare.

Commentary

The depositions indicate that King’s son, also named George, was seen riding the stolen horse and told people his father had told him to take it for a feed (VPRS Series 30P – Box 2 – 1-21-1(a)).

The CRB records that King who was ‘Free’ was convicted and sentenced to be transported for 15 years.

On 28 June 1843 George King who, was sentenced by Willis on 16 June 1843, petitioned La Trobe for commutation of his sentence on basis that, if Willis was then suspended, his case was similar to that of the Aborigines sentenced by Brewster after he was superseded by Willis. La Trobe asked Pinnock who the prisoner was as it was a strange request; Pinnock replied that the facts on trial were such as would not induce any commutation. La Trobe noted on the document that the Sheriff should tell the prisoner ‘no commutation’ (VPRS Series 19 Unit 47). This petition referred to the case of some Aborigines convicted in Quarter Sessions early in January 1841 but it later emerged that, technically, Quarter Sessions has been superseded by the formal appointment of Willis as the Resident Justice of the Supreme Court in Melbourne (see Mullaly pp486-89)

On 2 September 1843, the Colonial Secretary wrote to La Trobe transferring prisoners Richard Shannon, George King, Joseph Bowers, Thomas Wilkinson alias Brown to VDL (VPRS Series 19 Unit 50).

 

8. Transcript of Trial of John Phillips for Stealing a letter

Willis Note Book No 15 page 20

June 16^th 1843

John Phillips: stealing a letter

George McKilip (?): sworn

I am a clerk in the Melbourne Post Office. I recollect the 22^nd of May last. I saw the prisoner at the Post Office that day. I am quite sure he is the man. I delivered a letter to him. Letter produced – is it. I asked where he expected it from, He said it might be from England. I know it from the marks on it. Postage 3 pence. Prisoner paid it.

Cross-examined

I am not the Postmaster. I am not employed to convey letters. Letters addressed to the Pyrannees are detained at our office till called for. We do not send them to Geelong without special orders. This letter was not sent nor to be sent from our office. I gave the prisoner more letters at the same time on the same day. (They) were addressed in the same way. The other to the Pyrannees. The letter was delivered before it was opened when paid for. 3 (?) others were also paid for and delivered. I don’t remember ever hand delivering letters to the prisoner. If we know the party we give him letters for others. I had no other idea but that these letters were for himself.

H.D. Kemp: sworn

I am Postmaster of this district. Produces a letter from D Thompson ? Mr. Raymond is Postmaster General. He acts as such and is recognised by government in matters in this district. I act under the direction of H. H. The Superintendent. With reference to Mr. Raymond I have been acting here as Postmaster since August last. In any matter here I apply to the Superintendent and he refers them to Sydney.

Cross-examined

The Postmaster General at home has nothing to do with the Post Office in this colony. The Home Government could not exercise any interference in any appointment.

Rexd

I am Superintendent of the Post Office Department in this district.

Jones Agnew Smith J.P.: sworn

On the 25^th May I saw the prisoner at my office in Melbourne. I saw the letter produced on that day. Reads address. Prisoner produced the bill enclosed in the letter. Bill produced. ?? and read. I did not ? The bill was not due. I had suspicions about it. I thought the prisoner was not a likely to receive such a bill from England. I asked if he was the John Phillips. He said he was. He said his father’s name was John. The letter was signed W.J. Phillips. I asked if his father had another name. He said he had but he did not know it. I knew another John Phillips who came out with me in the ‘Eagle’. Prisoner said he had been expecting mail (?) for two years.

Cross-examined

I did not see the prisoner open letter. I did not see him take the bill out of the letter. It (is) impossible for me to swear the bill was taken out of the letter. I can’t swear the letter was taken out of the Post Office by prisoner. I cannot swear the prisoner is not the person named in the bill. Before the prisoner called on me I was advised of the bill drawn in favour of John Phillips. Rex ? prisoner admitted that he read the bill in the letter produced.

George Sherlocke Avery Esq. J.P.: sworn

I remember 22^nd May last. I saw the prisoner on that day. I saw the letter produced on that day. I saw the name subscribed H.G. Phillips. I asked the prisoner where his father lived. What he said in conversation was very contradictory. He said his father had resided in Launceston 19 years. I said it was very singular that if his father was residing in V.D. land that the letter should have come from England. He said then there must be some mistake. He said the ? had come very opportunely as times were very hard. He had been expecting the ? for two years.

John Phillips: sworn

I live on the Goulburn. I never lived on the Pyranees. My father’s name is Henry George Phillip. Letter produced is my father’s hand writing. It is dated from Walton on the maze. I expected a remittance from my father of one hundred and fifty pounds.

Cross-examined

I never lived at the Pyranees

H.F. Gurner: sworn

I obtained this letter from the police office. The last ? opened it and handed it to me . Again the bill ? was enclosed

Defence

No intent to defraud P.M

PostMaster’s oath

Prisoner lives at the Pyranees. J Phillips at Goulburn

M. Wright: sworn

I know the Pyranees district. I know the prisoner. I have known him 5 or 6 years – good character.

Cross-examined

Prisoner was sent to Ferguson

NOT GUILTY

Commentary

‘George McKilip’ was George P McKelvey.

‘D Thompson ‘ – Deas Thompson was then Colonial Secretary of NSW.

Redmond Barry appeared for the prisoner and contended that the post office was not legally constituted; that there was no proof of the appointment of a post office or commission of Kemp. Willis ruled the prisoner could not contend there was no post office as he had dealt with the agent. Willis charged the jury that the issue was whether the prisoner had obtained the letter under false pretences and not whether he had later opened it. After his acquittal, James Croke had him remanded re ‘fraud and opening letter’. (Port Phillip Gazette 17 June 1843)

In the circumstances of this case, it is not surprising the prisoner was acquitted of Larceny but also not surprising that he was later convicted of Obtaining by False Pretences.

On 16 June 1843 Henry D Kemp wrote to La Trobe about this case – apparently Willis had pointed out that legislation required a warrant for the Post Office and a commission for the Postmaster, but that that was not issue in this case (VPRS Series 19 Unit 46).

John Phillips was tried before Justice Jeffcott on 16 September 1843 and found guilty of obtaining money under false pretences. He was ‘Free’ and on 18 September was sentenced to be transported for 7 years. He was sent to VDL (VPRS 30P Box 186 NCR 83; CRB p. 23 No 9; VPRS Series 19 Unit 51).

 

9. Transcript of Trial of Partick Brennan for assault

Willis Note Book No 15 page 24

21^st June, 1843

Patrick: Brennan assault

Moss Jacob: sworn

My name is Moss Jacob. I am cook to Mr. Gardiner. He keeps a Public House in Lonsdale Street. I recollect 15^th March. I was in Gardiner’s that day. I can’t swear to the prisoner. I was in the kitchen. I was going out with a letter. A man came for a light to his pipe. I believe the prisoner to be that man. I desired him to get a light. He sat down. I wanted him to leave the kitchen. I found he would not go and fetched someone to put him out. He followed me, he laid hold of me and said he wanted to have a wrestle with me. He threw me. I can’t say it was done in spite. I got a kick that broke my leg. I received the kick before I fell. I fell on receiving it. I called out and said my leg was broke. The man was very tipsy. I said I did not know ? wrestling was. I wanted to be off on my errand.

Cross-examined

I don’t think it was done in spite or with bad intent.

Bridget Shehan: sworn

I live in New Town. I recollect the 15^th of March. I was at Gardiners Public House that day. The prisoner was in the yard. The prisoner sent into the kitchen. The cook told him to go. The man said he would not. The cook said he should. They both got hold of one another and they came out and both fell together. The cook cried out his leg was broken.

Cross-examined

The cook had hold of this man first.

Patrick Stapleton: sworn

I was (at) Gardiner’s on the 15^th March. I saw the prisoner in the back yard (?) Fighting wanting to strike Gardiner – I took him in custody

GUILTY – COMMON ASSAULT

Commentary

Henry Gurner prosecuted as James Croke was ill (Port Phillip Patriot 22 June 1843).

This is last of Willis’ cases resulting in conviction according to CRB. Moss Jacobs was ‘bond’ and sentenced to imprisonment for one week with hard labour.

In his defence Brennan pleaded intoxication and, after he was convicted, Willis noted that he had already been 14 weeks in custody so sentenced him to 1 week and as he was a prisoner of the crown he should then be sent to Sydney (Port Phillip Gazette, 24 June 1843).

 

10. Transcript of Trial of Sarah Bruce for Larceny

Willis Note Book No 15 page 26

21^st June.

Sarah Bruce: Larceny

P. Stapython: sworn

I apprehended the prisoner in consequence of some information. She said she put part of the property obtained from Mr. Empson in her sister’s box.

David Lonnigan: sworn

Watch housekeeper – I examined her..I found some of the articles – knives – believe they are the same.

Chas. Prodie: sworn

Identifies the knife as was produced on the examination of the prisoner at the police office.

Lonnigan

I gave the knives taken from the prisoner to Constable Shipilth.

Mr. Empour: sworn

I have ?? Ironmongery Store of Pullar Pate & Co. The prisoner was a ? ? of mine. I swear to the ? ? as to the property of my wife. Knife is similar to the property which we have in the store. I have lost books similar to store produced. Found in the box of Sarah Bruce.

NOT GUILTY

 

11. Transcript of Trial of Mary Anne Bruce for Receiving stolen goods

Willis Note Book No 15 page 27

June 21^st 1843

Mary Ann Bruce: Receiving stolen goods

P.K. Stapylton

I have searches the boxes of the prisoner of the bar who lives at Mr. Pitman. I found the property produced. Her box was open. The box was in the kitchen. Prisoner stated she bought the property at auctions. She stated that her sister gave her some of the things to put in her box.

Mr. Empson: sworn

Poulle & Porter property. Belonging to Pullen & Co. I have seen the prisoner come to see her sister.

Joseph Pitman: sworn

I know the prisoner. Swears to the articles found in the box contains the principal part of the property. ….? Was open.

Prisoner never suspected – good character.

NOT GUILTY

Commentary

Henry Gurner prosecuted in both the Bruce cases as James Croke was ill (Port Phillip Patriot, 22 June 1843).

Mr. Empour was William Empson a shopman to Messrs Pullar & Porter in Collins Street.

Sarah and Mary Anne were sisters, the daughters of John Bruce, alias John Crawford Bruce (Aka James Crawford), a transported convict and the background of these cases is likely to be that their father pressured them to take property.

In September 1843 he was convicted of stealing a watch from the premises of James Liddy, a carpenter in Little Collins St, who then employed Mary Anne. She pleaded guilty to this Larceny and was sentenced to imprisonment for one month after Croke recommended her to mercy as he believed she was influenced to commit the crime by her father (Port Phillip Gazette, 16 September 1843).

John Bruce was also convicted and sentenced to be transported for 7 years. He was sent to VDL (see Mullaly p. 193, 595-7)

 

12. Richard Guiness Hill, John Beswicke, Joseph Betts

Willis Note Book No 15 – page 28 –

24^th June 1843

The Queen v Hill – Habeas Corpus

Commentary

These accused were charged with the murder of an aboriginal woman, named Coonea, at Muston’s Creek on 23 February 1842. The proceedings before Justice Willis related to issues whether they had been properly committed for trial and whether some or all should be bailed.

The proceedings had just commenced when Willis was called from the court and served with the Notice of Amoval. He went back into court and informed those present that the case could not continue.

These men were tried and acquitted before Justice Jeffcott on Monday 31 July 1843 (see Mullaly pp. 84, 93, 290-7).