Casebook 12 – Transcripts and Commentary

[15 September, 1841 – 22 December, 1841]

Case List

1.Transcript of Plea of John Marshall for Larceny

Note Book No 12 Page 1 Crim’l Ct. Pt. Phillip

Sept. 15,1841

John Marshall – Larceny – 10 Cheeses

Pleads Guilty
Impris’t. 14 days

Commentary

The report in the Port Phillip Gazette 18 September 1841 is that Marshall claimed he committed the crime through hunger as he had not been paid wages for 12 months; he had been in custody about 14 days.

The remainder of page 1 is blank.

2. Transcript of trial of Thomas Tookey for Horse Stealing

Willis Note Book No 12 Page 2

Sept. 15th 1841

Tho’s. Tookey – Horse Stealing –

J W Croke

Barefaced case of Horsestealing – Logie recognised his Mare & caught her – then came Pris’r & an’r.

Fredk–Edw’d Falkner – Sworn

I am Chief Constable – I know the Pris’r. he was in my Custody – I did not know him before I took him into Custody – I took him up close to Mr. Whitehead’s Stat’n on the Deep Creek – I know Kinlochewe Inn – I went there on the 11th of Aug’t in consequence of Informat’n I received – I went to look after the Pris’r I went in Comp’y with Mr Logie the owner of the Mare – I made inquiry for Tookey in vain – In the night one or two persons came to the Inn – I got up & found one of the Parties to be May the Postman – On see’g May I called Mr Logie – We got up abt 3 oclock we went to Woods Station – I knocked at the door of one Wood – Hut keeper on the Station – I was in search of the Pris’r & stolen Mare – Logie was with me – I found a Mare – a Grey Mare in Foal – ans’g the description I had received – Mr Logie got off his Horse & tied one of the Reins of his Briddle round the Mare’s Neck – Whilst he was in Act of doing so the Pris’r& an’r man came in sight daw’g day – clear enough to distinguish their features I have no doubt whatever the Pris’r at the Bar was one of the two – on com’g to them I asked in the hear’g of the Pris’r where he was going – he s’d he was going to catch a black Mare – there were 6 or 7 Horses there there was a dark Horse there among the others – No other White ones – The other man drove the other Horses away I did not see him drive them but when I return’d I saw neither the other man or the Horses – I told the Pris’r I had some recollection of him & I asked him wh’t his Name was I forget wh’t Name he gave Smith I think – it was not Tookey – When the Pris’r said his name was Smith I said you are the man I want he threw a bridle he had in his hand on the ground & ran off to the River – the bank of the River was very Steep & Rocky – It was deep then – he plunged into the River I followed him on Horseback – the Pris’r was on the Bank on the opposite side – I struck him with the Whip butt end on the Crown of his head & bro’t him down & I then took him into Custody & bro’t him to Melbourne behind me on my Horse – He said if I had been a short time later I sho’d not have found him within 50 Miles of Melbourne I found Tookey on Wood’s Stat’n & bro’t him to Melbourne.

X

I first received Intelligence of a Grey Mare be’g Stolen on the 11th of Aug’t – She was described as a Grey mare with a White face with the brand of a single L on the near side Shoulder – I ex’d the brand – the Brand was such as had recently been describ’d with a recent alteration – I did not personally know the Pris’r before – I knew from the hesitat’n in his Speech before descr’d to me that the Pris’r was the Man – There was a dark Horse there – he said he was going to catch it. I did not use any menacing gesture before he went Away – nor endeavour to intimidate him I called to him repeatedly before I struck him describes the breadth of the River – co’d not have secured him unless I had struck him.

Wm Logie – Sworn

I live on Little River Brisbane Ranges– 25 Miles from the Station of Watson & Hunter on the Salt Water River – I recollect hav’g lost a Mare Grey branded L on the near Shoulder – I saw her the 12th of Aug’t at the Merri Creek ab’t 35. or 40 Miles from my Place at a man’s named Wood’s Whiteheads Old Stat’n. I have no doubt as to the Identity of the Mare, & that she is my Property – The Brand has been alter’d since I lost her – I lost two or three Months ago. she had been run’g at the Little River at my Stat’n. I bought her from Mr. Seneta on the Little River – not in the direct’n of Whiteheads. I saw the Pris’r on the 12th of Aug’t She never was out of my possession before since I first got her – She had been ab’t 12 Months in my possession. I cant say wh’r she was in foal – I knew her to be in Foal – She strayed away when I lost her Yes she went away of her own Accord to Keeler

X’d

Whitehead’s Stat’n is 10 or 12 Miles from Watt’s When I went to Whiteheads ab’t daylight we came upon ½ Doz Horses. my Mare was there – There might be a dark Horse there – I never saw the Pris’r before Kinlochewe Inn might be 3 miles – I never saw the Pris’r – I went up to Kinlochewe Inn in consequence of Informat’n I received – The alterat’n of the Brand had been ab’t a few days.

John Stuart – Sworn

I live at the Gov’r Arthur in little Bourke Street – I know the Pris’r I remember 10th of Aug’t – I saw ab’t the 9 or 10th he bro’t a Grey Mare to the door – I asked wh’t he wo’d take for her – There was a New brand put on the top of an Old one – I saw him take her away – I gave him a glass of gin – he took the mare with him – I subsequently saw – She was not in very good Condition at the time – brand Appeared to have been two or three days – The Man said the Mare was not his – Mr. Andrews was with the Pris’r.

Barney Boyle – Sworn

I know the Prisoner – I saw him riding a Grey mare in Queen’s Street I saw another Man whith him – they were riding furiously thro’ the Street – The Pris’r came up & said he wo’d ride over me – I went for two other Constables –

Wm Betts – Sworn

I live at Keeler I was in the Service of Mess’rs Watson & Hunter Stockkeeper Pris’r came & asked me if I had a Grey filly on the Run branded with a single L. She has a White blaze right down her face – we drove her in – we put a Head stall on her – ab’t 2 or 3 Months ago. Another person with at Thomas’s House on the Sydney Road – After the Pris’r had been there Mr. Knott came – ab’t an hour after the Priss’r was gone –

X’ex’d

Describes the condit’n of Mare Pris’r was the Man that took the Filly from the Run –

Mr Barry

Evidence Inconclusive Reward – Did not consider the Mare was his own – Tak’g alterat’n of Brand.

Facility of Commiss’n – associat’n –

Guilty
Tr. 15 yrs –

Commentary

Redmond Barry defended.

Fredk–Edw’d Falkner was Frederick Edward Falkiner.

‘the hesitat’n in his Speech before descr’d to me’ – probably a way of describing what is now known as ‘stuttering’.

‘Keeler’ is Keilor.

A ‘filly’ was a female horse that had never foaled; a ‘mare’ was a female horse after foaling.

‘Willis’ notes of Redmond Barry’s address to the jury indicate that Barry was probably making the points:
That the evidence did not prove a stealing as distinct from proving mere association with the horse;
That the witnesses were seeking the reward offered for the return of the horse;
That Tookey was not acting as if he owned the mare;

The ‘taking’ required to prove the crime was that of permanently depriving the owner not mere ‘illegal use’

It is difficult to determine what Barry was saying about the ‘alterat’n of Brand’. In his charge to the jury Willis commented on the fact they had been taking notes as indicating they had been paying attention to the case. He drew a distinction between felonious taking and using the horse for some other purpose such as conveying stolen goods. He said that by the examples he had given he would not be considered a Judge Jefferies who was a great lawyer but an iniquitous judge.

The Jury convicted without retirement.

In sentencing Tookey, who was FS, Willis referred to the offence being ‘extremely prevalent in this district’ and that previously death had been the penalty.

This case is reported in Port Phillip Gazette, 18 September, 1841

The remainder of page 7 is blank. Page 8 is blank.

3. Transcript of trial of Michael Finnegan for Horse Stealing

Willis Note Book No 12, page 9

15 September 1841

Mich’l. Finnegan – Horse Stealing –

Sam’l Hawkins Sworn Serg’t Border Police

I recollect the 1st of Sept – I went to Riddell & Hamilton’s Stat’n on that day I was sent to search the Pris’r I saw a Hut keeper who gave his name as George Miller – searched his bed I found a pice of Rope a Saddle Strap & one Cheque Shirt. Identifies the Rope – Strap – Shirt – Grey Hairs on Rope – I found the Pris’r with a Flock of Sheep & apprehend’d him. & bro’t him to Mr Powlett –

John McKenzie Sworn

I live at the Pentland Hills ab’t 35 Miles from Mr. Pettit’s I know the Pris’r he was once in the Service of Mess. McLachlan & Clark 16 weeks – he left on the 10th of Aug’t – I recollect the 14th of Aug’t a Mare in the Stable. not in the Stable at daylight on Sunday the 15th I had shut up with a hurdle missed the Mare on the 15. did not see the Pris’r ab’t that time – I missed other prop’y. I missed the Rope produced I know the Rope – states his reasons for know’g it – Swears to the Shirts – I tracked the mare 8 miles on The Melbourne Road knows the tracks from the shoes – Stone broken thro’ the Roof– I was last person who tied the Rope round the Mare neck of the 14th. Mare prop’y of Cha’s McLachlan & an’r. On the 29th or 30th of Aug’t I found in the possession of Mr Powlett the mare that was in the Stable on the night of l4th. Brand’d O on the near side near the Saddle – I went to Mr Riddell’s.

Tho’s Pettitt – Sworn

I live at Mt Macedon Black Smith & Farrier – I know the Pris.r. I saw him at my House on 11th of Aug’t I did not see a Horse with Pris’r on 11th of Aug’t 16th Aug’t was Monday – Pris’r was at my House I saw a mare then White Mare – I knew by hav’g a wart on her Shoulder by the Advertisem’t Pris’r bro’t a bag & a bundle – Brands worn out by sore back which the mare had – Finnegan stopp’d all night at my House – on the 11th he went to Riddell’s on the 12 stopp’g all night & left next morn’g said he was go’g to Mollisons – Pris’r return’d to ? the Ev’g Sunday 15th stopp’d at night on Sunday – on the Monday morn’g ab’t l6 th. he went away to Mr Riddell’s – I found the mare before Pris’r I said it John Wood’s Mare She looked like his at a distance – Pris’r said he’d bet a Pound it was not John Wood’s Mare You’d better let her go for she belongs to a d – d Rogue – ab’t 6 miles from Riddells

X’ex’d

Many Men lodged in my House that night might be seven men & a woman –

George Miller Sworn

I know the Pris’r I am Hutkeeper to Riddell & Hamilton Pris’r was shepherd to them I recollect Serg’t Hawkins com’g ab’t 10 days ago Piece of Rope like that prod’d found in Pris’rs Hut –

A C Falkinor Sworn

Serg’t Hawkings gave the Rope prod’d – It has been in my possession ever since.

Defence
Guilty
Tr. 15 yrs –

Commentary

‘cheque’ and ‘check’ were used interchangeably in the 1840s.

F A Powlett was a Justice of the Peace and Commissioner of Crown Lands.

‘Stone broken thro’ the Roof’ – probably Willis intended to write ‘Hoof’.

‘I knew by hav’g a wart on her Shoulder by the Advertisem’t’ – presumably the loss of this horse had been advertised in local newspapers – such advertisements usually had a description of the animal.

‘A C Falkinor’ – presumably Frederick Edward Falkiner, the Chief constable Finnegan is recorded in the CRB as ‘Finigan’ and as FS.

4. Transcript of trial of Evan Rees for Forgery and Uttering

Willis Note Book No 12, page 12

15 September, 1841

Evan Rees – Forgery – Pleads Not Guilty
1st Count forg’g Indorsem’t to defraud Geo Montague
2nd C’t Utter’
3 & 4 – R’d Robinson
5 & 6 Constantine Vanderschoft
7 & 8 Cha’s Hill –

Constantine Vanderscroft Sworn

I live in Corio I know the Pris’r I saw him at the Commercial Hotel – I keep the Bar.

I saw Pris.r there on Monday 25th of Aug’t – In Pris’n’s presence the Waiter Cha’s Hill asked to me to change 27 pound Cheque because Pris’r had bo’t a Watch from the Waiter – I said I had no mo’y the Prisoner also asked me to Cash a Cheque the Cheque produced – I gave him 5 pounds 3s & 4d – Pris’r wrote the name of George Montague in my presence a Cheque for 4 pounds 3s & 4d & 1 pound in mo’y. 4 pounds to Waiter for Watch 9 pounds 3s 4d – got drink 50s was to get the balance next Morn’g next Morn’g gave Pris’r in charge on Suspicion of Forgery – The Pris’r was present when the Constable shewed him Cheque Pris’r said he knew nothing about it.

X

It was yourself asked me to cash the Cheque & write the Indorsem’t – The man with me was George Montague Receipt produced –

Cha’s Hill Sworn

I live at Corio waiter at the Commerc’l Hotel was there on 25th of Aug’t know the Pris’r saw him there on that day. He purchased a Watch gave me a verbal Order on last Wit’s – I saw Pris’r give a Cheque to the Barman on the 25th the first day–

George Dunbar Sworn

I live at Corio I saw the Pris’r at Bar on the 26th of Aug’t Morn’g at the Commercial Inn – A Constable came in a few min’s & took him.

Tho’s Downie Sworn

Constable at Geelong saw the Pris’r on 26th at Commercial Inn he was charged with Forgery I asked him if he knew any thing of the Cheque, he said no –

Defence –
Guilt
Tr. Life

Commentary

Because there were a number of transactions involved in this incident the Information would have included alternative counts alleging the different recipients of the cheques as the victim either of the forgery or the uttering of the cheques. Neither Willis nor the CRB record on which count Rees was convicted but the CRB records a conviction for Forgery. Rees is recorded in the CRB as FS.

Page 14 is blank.

5. Transcript of Trial of James Brown for Obtaining Property under False Pretences

Willis Note Book No 12, Page 15
16 September, 1841

Jas. Brown (for obtain’g mo’y under false Pretences) –
Plea Not Guilty

Cha’s Jones. Sworn

Watchmaker I live in Eliz’th Street – know the Pris’r I saw him at my Shop on 11th of Aug’t – He came with an Ear Ring which he wished to be rep’d. He asked (if) I had a Watch that w’d suit him. I said I sho’d soon have one He called afterw’ds 7 oclock in the Ev’g when I show’d the Watch told him 6 pounds or thereab’ts was the Price. He took it, & said it wo’d suit him as he had frequently to 30 miles from his Stat’n in the Country that he had a Potato Farm – & that he was in the constant habit of supply’g Mr. Rucker & Mr. Manton & that he had a dray load of Potatos com’g in the follow’g day. It was on the faith of this I let him have the Watch He said he pay me for the Watch the follow’g Ev’g or Friday Morn’g when the Potatos were Sold – He wanted me to buy Potatos from him & said he wo’d bring me a Sample next Morn’g he said his Station was on the Sugar Loaf Creek.

X

In the Even’g I was p’d for the Ear Ring – I asked for the Watch. You said you wo’d give 6 pounds 5s. if I wo’d let you have the Watch on Credit.

Wm Wright Sworn

I know the Pris’r I have known him about 12 Month. I know he lived with Capt’n Smyth as Carter – I never heard Pris’r had a Station – I know he has no land near the Town –

X’ex’d

Your Wife gave me the Watch –

Fredk Manton Sworn –

I don’t know the Pris’r I never had any dealing with him – He never supplied me with Potatos –

Cha’s Jones recalled

Watch Produced Identifies it –

X’ex’d by Mr Cunninghame

I am in the habit of selling to such purchasers as I can get – I do not always get Cash Payment – I think this is the first Watch I have sold in that way It was a Watch adapted to a man in a lower Rank of life.

Wm Wright recalled & X’ex’d

Fredk Augustus Rucker – Sworn

I cannot say that I have ever seen the Pris’r at the Bar – I never recollect having any dealings with (him) If he represented himself as supply’g me with Potatoes he did so falsely –

X’d

I have never had any transact’ns with him – I have sold Potatoes for Capt’n Smyth – not bought –
Guilty
Tr. 7 yrs

Commentary

Rucker and Manton were well–known merchants in Melbourne at this time.

Brown was FS and was defended by Archibald Cunninghame.

Pages 18, 19 & 20 are blank.

6. Transcript of proceedings when Bon Jon was before the Court charged with the murder of Yammerwing (Yammoning)

Willis Note Book No 12 Page 21

16 September 1841

Bonjon – Murder
1st Offence Wh’r Bonjon understands the nature of a Plea
to the jurisd’n of the C’t sufficiently

George Augustus Robinson Sworn

Chief Protector of aboriginals

Has seen Pris’r before – has no intimate knowledge of him he has been under The Rev Mr. Tuckfield’s care Tuckfield Wesleyian Miss’y

Rev’d Fra’s Tuckfield Sworn

I am a Wesleyian Miss’y having connexion with the Aborigines – Pris’r belongs to Wadoora Tribe – I knew Yammoning perfectly – he belonged to a Tribe called Colijon – both within the limits of the District of Port Phillip – I have had intercourse with him to a considerable extent – I believe he at present entertains some idea of a Supreme Being – but not original Ideas – Very Imperfect ones – Some slight indistinct notion of a Supreme Being Not such as wo’d enable him to understand the Nature & Obligat’n of an Oath – To some extent he is conversant with European Customs – he has been more with Europeans since I have been here than any other Natives I know – There is no reserve or Stat’n for that Tribe – Altho’ there is no reserve for that Tribe they have occasionally visited our reserve which is within the boundary of the ColijonTribe – He has been instructed in the X’tian Religion to a very limited extent not sufficiently Instructed to understand the nature of an Oath. The Natives believe from our hav’g frequently bro’t the Subject before them, that there is a place of Reward & Punishm’t–

Judge explained the nature of a Plea to the jurisd’n & the necessity of it be’g put in upon Oath & Wit’s said Pris’r had not in his opin’n suffi’t Capacity to put in such a Plea, but that he had Capacity enough to Plead Guilty or not Guilty to any crime he might be accused of

X’ex’d By Mr Croke

I have been out here ab’t three y’rs – I have visited Prison’s and Tribes & they have visited me occasionally – They have suff’t Capacity to understand the Ordinary Circ’s of Life – the dealings of Society as constituted here – Pris’r has been more in contact than any of his Tribe with Europeans. He was with the border Police a considerable time – Pris’r can speak the English language very imperfectly – Under all Circ’s I do not think they wo’d always consider Murder a Crime but In general they think it is – I think the Pris’r co’d not be sufficiently instructed to put in a Plea to the Jurisd’n of the C’t – altho’ suff’t capacity to say Guilty or not Guilty.

Forster Fyans Sworn

Ex’d by Mr Croke

I know the Pris’r he was 7 mo’s with the Border Police We found him very useful – we gave him rations – he speaks English very badly – I think him particularly quick & intelligent in his own way –

X’ex’d

He was not Enlisted – no agreem’t with him – The Boy used to come & stay with me –

The Jury found the Pris’r was not of suffi’t Capacity to put in a Plea to the Jurisdict’n of the C’t

Second Issue

Same Evidence by Consent and of Capacity to plead Guilty or Not Guilty – to say Wh’r he committed a Murder or not – The jury consider that the Pris’r has sufficient Capacity to know wh’r he did or did not kill Yammoning, but as incapable of deciding Wh’r he has committed Crime, as Murder is not always consider’d Crime among the Aborigines –

I said I thought I might now detain the Pris’r because if I had Jurisdict’n he was not so totally wanting in Intellect as not to be able to say Guilty or Not Guilty –

Mr Barry

Jurisd’n – Importance of the Question – Capt’n Grey’s Propositions – nothing in constitution of this Colony that authorizes our submitting the Aboriginal Natives to punishm’t for Acts of Aggression interse

1st Cursory View of Colonization –
Conquest – Accesion & Occupancy –
Campbell & Hall Cowep –

Wood’s Civil Law

Subjects – recognition of reciprocal Rights – reciprocal Contract – No such Contract entered into ergo Crown no power over the aborigines – Recognition of the Rights of Indians in America cites Kents Commentaries – distinct Communities If subjects, then subjects to all intents & purposes – no reciprocal Compact – 2d branch – If not competent jurisd’n I must shew a better – Asserts that there is a Jurisd’n among the Aborigines Pris’r sho’d be delivered over to the Tribe for Punishment – cites Robertson’s America – Not subjects but under Protection Not aliens Locke 9th book – Punishment by Law of Nature – The Crown Prosecutor as a Man with’t Authority – L’d Mansfield – Campbell & Hall – Omechind & Barker – C. J. Willis’s Comments on Calom’s Case Vattel B.2 ch.7.(u2)

Mr Croke If case re argued associate some one with him –

Not his intention to follow cases. He wo’d come to the Point at once – The Queen exercis’g Sovereignty has a right to punish all Crimes within the District – Perog – to punish offences wh’r by aborig’l Natives or Colonists – No encroachm’t on the Rights of Aboriginals to settle it with Colonists – This Colony is to be consid’d as Integral of England all inhabitants are the Queens Subjects liv’g under the same Law – Enjoys the same Rights – Law equally affects all questions that arise there – wh’r among Black or White – Allegiance – Any person wh’r British or Native subject to be punished by British Law – Natives as much punishable here as if one of them were to murder another in Yorkshire

Two Aboriginal Natives one hav’g killed another he was executed at Sydney – Big Jack – killed Dirty Dick Sup. C’t Dowling J. ab’t 7 or 8 yrs ago – About five yrs 2 aborig’l Natives tried at Windsor for the Murder of an’r Native – Mr Stephen app’d to defend them Forbes Burton & Dowling held & that they sho’d be dealt with accord’g to the Laws of the territory – The Cases were communicated to Mr Croke

It did not appear that the information had been obtained from any Authentic source –

Sept. 17th

Mr Robinson the Chief Protector informed me that at the Camp of Aborigines in the immediate vicinity of Melbourne two men were tried for Murder by the Native Tribes on the 14th Inst. They stood a cert’n distance & the relatives of the dece’d threw a cert’n No. of Spears at them Mr Tuckfield was present. Mr Robinson & Mr Thomas were present It is coincidence that the Trial of Bonjon was to take place on the next day 15th Inst. for murder in this Supreme Court.

Mr Thomas Assis’t Prot’r

The Young Man’s Mother died some time since They cant account for death unless they see the stroke.

They are sulky & mourn till they get the fat of the Kidneys of some other Black They place the body on the ground dig a Trench round it & where they find the largest Hole of an Insect the first Man they see in that direct’n is consid’d guilty They take ? of the depth of the hole & at that distance they place the Party accused. They have a service of the Body, if a male, not in case of a Aborigine. It is to inform, as they suppose, the dece’d who hears of there intention to revenge his death – They imagine the dece’d answers, “No” Stupid one, that is the way” (in the direction that Hole (the largest insects Hole from the Body). The two Young Men alluded to by the C. Protector killed a youth of the Yarra Tribe. Several Tribes come together occasionally – the young Man who lost his Mother belonged to the Coast Tribe – These young men sho’d have gone to kill another Black a great way off – but hav’g interced’d with the Tribe he got permission from them he came up with another Black in the Neighbourhood & killed him. I tried all in my Power to bring them to Justice, but I failed owing to technical difficulties. The dead man was found with the fat taken out of his Kidneys – The Young Man was to be put to death for this Murder – I tried to arrange the Matter & prevent the Young man be’g put to death & spoke to HH The Superintend’t ab’t it. HH inform’d me he wo’d render me every assistance but if I put the man in Pris’n I must let him out again – such was the State of the Law – The Crown Prosecutor told me so likewise – They have a Complete system of Gov’t among themselves punishm’t for almost every Species of Crime they commit – One Young Man – ? the other – not two to be punished – Thus killing a Dog – is Punished by two or three blows of a Waddy by the Party whose Dog it was – A Young Man a Gouldburn Black was killed in April twelvemonth last – by a Barabol black while at a Corroboree – he was speared, lingered three days & died – My blacks always consid’d spear’g in this way was a just action – The father of the Young Man that was killed, had killed the Brother of the Young Man that killed him – the Father was dead so the Brother was killed in retalliation as the nearest relative.

Depositions Not properly taken
Dr Clerke’s not Understood

Crown Prosecut’r forbears to Prosecut’n for the present
Not Guilty

Commentary

James Croke prosecuted and Redmond Barry defended.

The first issue raised concerned Bon Jon’s ability to understand that he could challenge the jurisdiction of the Court to try him when the killing was of another Aborigine.

In 1836, in R v Jack Congo Murral, (Feb 1836 1 Legge 72) the NSW Full Court had decided that aborigines were subject to British law even if their offence only involved other Aborigines. Willis did not agree with that decision even though the Governor of NSW had subsequently issued a Proclamation that aborigines were subject to the law whether the offence was committed against another Aborigine or a white man.

The jury found that Bon Jon did not have the capacity so put in a plea alleging the Court did not have jurisdiction and the same jury using the same evidence was asked to determine whether Bon Jon had the capacity to plead guilty or not guilty. They decided he did have that capacity but did not have the capacity of saying whether it was murder or not because aborigines did not always regard Murder among themselves as a crime.

Barry then, in effect, made his argument against jurisdiction and Croke put the opposite argument relying on the decisions previously made by the Judges in Sydney.

When the case resumed on 17 September, both Robinson and Thomas informed the Court of recent examples of incidents within the aboriginal community in which they had taken action in respect of crimes against Aborigines by other Aborigines.

‘Depositions not properly taken’ – as the original depositions have not survived it is difficult to determine what it was that lead Willis to this conclusion. This note is not necessarily connected to the jurisdiction issue but could have affected the conduct of any trial.

‘Dr Clerke’s not understood’ – again it is difficult to understand this note – Clerke was a doctor in the Geelong district and had conducted a post–mortem examination on the exhumed body of the deceased – a fracture of the ‘scull’ was the cause of death but the extent of the fractures precluded any firm opinion that the fracture was caused by a gunshot wound.

Willis then delivered a lengthy judgment setting out his view that the court did not have jurisdiction to try Aborigines for offences against other Aborigines. He then remanded Bon Jon in custody. The Port Phillip Patriot of 20 September 1841 gives the Bonjon argument and ruling in great detail.

On 15 October Croke informed the Court that he would not proceed with the case. He took the view that, as was often the case with aborigines, Bon Jon did not have the capacity to understand the trial process. Willis then made the ‘not guilty’ entry.

Willis attempted to have the Home Government consider his views but the attempt failed. The Sydney judges repeated their view and the other judges who sat in Melbourne asserted that they had jurisdiction and heard such cases.

7. Transcript of proceedings when William Callagher, David Mahony, John Cockerell and John Ward were before the court

Willis Note Book No 12 Page 29

15 Oct’r 1841

Wm Callagher ) David Mahoney ) Conspiracy to raise Wages John Cockerels ) John Ward – ) Acquitted

Commentary

About this time the going rate for shearers was 15/– per 100 sheep but some shearers in the area to the west of Geelong wanted to increase it to £1 per 100. These 4 men were shearers and the evidence given at the committal proceedings was that they were part of a group who were attacking others who were content with the current rate.

When the case was called on James Croke announced that because of absence of 2 witnesses he would abandon the case. Willis made some comments about this type of offence and that the witnesses had absconded to defeat the course of justice. He said he hoped that the prisoner’s time spent in custody would convince them against such behaviour (VPRS 109 Unit 1 p. 525; Port Phillip Gazette 16 October 1841)

The remainder of page 29 is blank.

8. Transcript of trial of James Hall for Larceny

Willis Note Book No 12 Page 30

October 15,1841
James Hall – Larceny

Henry George Harrington Sworn –

Knows the Pris’r he resided at my House, left 31st of Aug’t had been there a Month or Six Weeks – after he left I missed a Watch – I had no other Inmates but Prisoner & Serv’ts – two Serv’ts Missed the Watch ab’t 12 oclock on Tuesday 31st of Aug’t I generally left the Watch on the Mantle Shelf in the Back Room – on the Saturday previously I asked him to take the Watch to the Flag Staff to have it regulated – For two or three days I thought the Pris’r might have taken it to the Office – The Pris’r took it from the Mantle Piece & bro’t it back from the Flag Staff & left it on the Mantle Piece – He did take the Watch with my Consent – Identifies the Watch –

X’ex’d

It was on the 29th of Aug’t I gave you permission to take the Watch to the Flag Staff –

Daniel Bunce Sworn

I recollect the 8th of Sept’r I saw the Pris’r ab’t that time – I observed the Pris’r had a Watch, he said last Wit’s had given it to him to get it regulated at the Flag Staff – & that he allow’d him to wear it – Thinks the Watch prod’d is the same –

F. J. Falkiner C.C. Sworn

I saw Pris’r the 15th of Sept’r I had a Warr’t & apprehend’d him – he sent for me He told me the Watch was at Henly & Blairs & that belonged to Mr. Harrington The Watch produced is the one –

X’ex’d

Harrington did not wish to press the Prosecut’n

W. C. Henley Sworn

Knows the Pris’r he came to say he was hard up, he wanted a few Shillings, he had a Watch – he wo’d let me have it if I wo’d let him have the Money – Said he wo’d come on Monday & pay me the Mo’y he told me not to sell the Watch – thinks Watch produced is the one –

Pris’r reads a written Defence

Permiss’n to take the Watch
Not Guilty

Commentary

Harrington was a ‘chemist and druggist’ who lived in Collins St.

The ‘Flag Staff’ was in the area where the Flagstaff Gardens now are; it was similar to a ship’s mast. At noon a black ball was dropped to indicate the correct time. (Garryowen p 569)

Willis directed the jury that, to prove Larceny, the prosecution had to prove a felonious taking as well as carrying away and if the prisoner took the watch with consent there was no Larceny and prosecutor had a civil remedy for the disposal of the watch. (Port Phillip Gazette 16 October 1841)

9. Transcript of trial of Charles Jones for Extortion

Willis Note Book No 12 Page 32

Oct’r 16,1841

Cha’s Jones – Extortion

Def’t Admits that he was bailiff of the Court of Requests in April last –

Edw’d Jones Brewster Esq ‘r Sworn

Commiss’r of the Court of Requests Proves a Doc’t which purports to be an Execut’n of a Judgm’t of the C’t of Requests – Signature Cha’s Jones – Admitted – Edw’d Jones Brewster – not my Writing. I think all the writing is in Jones’s hand Writing –

X’ex’d

Frequent Executions issued 16 or 19 – I never gave you such Power – I never knew that you signed my Name – That you signed an Execution in my Name – I think I signed 7 or 8 Execut’ns ab’t 19 Issued altogether which Mr Ocock swore he p’d Mo’y for – I did not think you committed a Forgery – It was not with my sanction you were allowed to sign my Name –

Richard OCock Sworn

C’t of Requests Book – Entry 5/6 – the proper with respect to the Judgm’t – The Execut’n be’g a Nullity – I admit I received it Orr & Cooper

X’ex’d

I don’t believe that I ever made an overcharge of the Fees of the C’t of Requests–

Case –
Defend’t

Never allowed any person but myself to sign the Executions –

Mr O’Cock

Mr. O’Cock has received the fees but never issued Execut’ns in my life – those that were issued were done with my knowledge

Wm Cooper – Sworn –

I did not pay the Costs – I p’d a p’t of the Debt – Set off – Value of the Plow. – I think the balance is 4 pounds in my favour on Acc’t with Jones – over & above the am’t of Execut’n – Mr Rucker Debtor – I made a Claim on Rucker before –

Rob’t Crow

Jones’s Clerk – I know Mr. O’cock he was in the habit of com’g to the office with the names of the Parties & leaving it for me to fill up the Execution – never committed a fraud – frequently p’d fees I did not charge –

Cooper – recalled

I consider you – Def’t – in my Debt –

Commentary

The Court of Requests dealt with claims relating to small debts – less than £10.

Jones was the bailiff of the Court of Requests and on 16t September 1841, before Willis, James Croke had made an ex officio Information against him for fraud and extortion. Jones was taken into custody but bailed by Willis on 27 September.

Richard O’Cock was a Solicitor in Melbourne and was Registrar of the Court of Requests. The allegation was of some dishonesty in relation to monies received during the execution of a judgement of the Court. When this charge failed Croke made a further Information for forgery (see below – on p.35 of this Note Book; Port Phillip Gazette, 18 September 1841; Port Phillip Gazette 18, October 1841).

10. Transcript of trial of William McCanlin Bannister for Forgery

Willis Note Book No 12, Page 34

[no date]

Wm McCanlin Bannister – Forgery

Nigel Gresley Sworn

Teller of the Union Bank – my duty to receive Cheques – I saw the Pris’r ab’t 3 Weeks or a Month ago – he presented a Cheque for Payment Cheque Produced – Identified. I did not know any such person as John Bunce – Lie – indorsed

T. Hughes or J. Hughes – I saw the Pris’r write T. Hughes on the Cheque At

Police Office Pris’r called himself Bannister – He said he got it from a person named Hughes – Pris’r ment’d the name Jones immediately after Hughes – I went out & on my return the Pris’r was off I had requested him to Wait – I had the Cheque in my hand – I went out after him & co’d not find him–

X’ex’d

John Bunce no acc’t – T. Hughes no acc’t – I never saw John Bunce

Wm O’Neil Sworn

Knows Pris’r saw him at Melbourne 20th Sept’r last at Eliz’th Street Melbourne – I recollect meeting one or two of his friends – he told ? to get his Clothes for he was to his Hips – i.e. in trouble – I apprehend’d him a short time after he presented the Cheque –
Not Guilty

Commentary

Willis has not noted any date, but it would be 16 October 1841.

William O’Neil was a constable.

Other documents give this prisoner’s name as ‘William McCondill Bannister’.

The allegation was that the prisoner forged the cheque by writing the name ‘Hughes’ but Willis pointed out that the cheque was complete without this endorsement and therefore there could not be any intent to defraud. He directed an acquittal (Port Phillip Gazette, 16 October, 1841).

11. Transcript of trial of Charles Jones for Forgery

Willis Note Book No 12 Page 35

Oct’r 16,1841

Cha’s Jones (Forgery)

Wm Brewster Sworn

I know Def’t – I am Commiss’r of the C’t of Requests in Melbourne – Def’t was Bailiff from April 1840 to April 1841 “Cha’s Jones” believes it to my to be his hand Writing E. J. Brewster seems written in the same hand E. J. Brewster not my Writing – I never gave authority to Def’t to write that name my name – Rich’d O’Cock Jones’s hand Writ’g. no person had authority to sign my name I never gave Jones Authority on any Execut’n.

Paper purports to be Receipt of Execut’n of the C’t of Requests The name of E. J. Brewster signed to the Writ of Execut’n – I believe it to be Jones’s hand Writ’g –

Case

Jones has issued other writs signed in that way but not by my authority – I know

I always saw the Summons of the C’t which Jones served – The Summons were hand’d up – Summons were not signed by me (subsequent word “Signed” crossed out) with the Authority of the Comm’r & the Registrar Mr O’Cock I acceded to this ? the Summons – Suppose Jones came into the Office & saw me sign’g .

“The Doc’t wo’d not you have consid’d it a Forgery” –

“I sho’d not (have) consid’d it a Forgery He did not think or (be) concerned that he was committ’g a Forgery –

Wm Cooper Sworn

I recollect an Execut’n put on my House I p’d the Am’t to a Man of the name Cha’s Hayes – The mo’y I p’d Hayes – I p’d to Jones mo’y on the foot of the Execut’n – I hold in my hand – more than a Pound – A second Execut’n was put in in Orr & Cooper – only one dealing with Orr – Of course I p’d on the foot of this Execut’n – I was allow’d on the 2’d Execut’n – I got the Execut’n as a Rec’t –

Brewster recalled

When I heard this I stopp’d Jones Salary Pl’f Orr – compl’d to me with reference – I issued a 2’d Writ because I was ignorant of the 1st Writ – Doc’t proved – 23rd June 1841. Execut’n at the Suit of Orr & Cooper – 2.14.6. & costs 5/6 Execut’n 3.6.

3 pounds 3.6. Debt & Parties the same – I never rece’d from the am’t of either of these Execut’ns I stopped 11 or 12 pounds of Jones’s Salary on acc’t of the Pl’f hav’g told me he had not been p’d – I made Paym’t to Orr on the foot of his Claim. I think 3 pounds. I don’t think it was on Acc’t of the Execut’n at all. It was in reference to his Demand sued for in the Court of Requests –

per Jury –

I have heard that Jones has received Mo’y & handed it to the Parties – Jones performed a great part of the Duties of the Reg’r – he was in the habit of receiv’g mo’s(moneys) & pay’g it over at this time to the Parties.

X’ex’d by Mr Murray

I am aware it is the Custom of the Bailiff of the C’t of Requests to receive mo’y & keep it in his hands – he ought to hand it over – I am not aware of any order of the C’t binding the Bailiff to pay the Proceeds immediately either to the Party or the Registrar – The am’t of the Execution was not that I know of entered by Mr O’Cock – I issued the 2’d Execut’n because I was ignorant of the first. If Jones had Accounted for the 1st I wo’d not have issued the 2’d – I called Jones before (me) after his dismissal made him Acc’t for his Receipts – I was not aware that the Bailiff retain’d Sums of Mo’y – 2 Execut’ns – One for Forgery – one for recovery of Debt. I was not aware when the 2’d Execution was issued that the mo’y had been p’d to Jones –

<p>Cooper recalled –

2’d Execut’n I never saw before – I might have seen – I met Jones in the Street, he said he had an Execut’n on Orr & Cooper – I said I wo’d give him what I had – When he asked me for the balance I told him he sho’d not be hard upon me – Signature was on the Execution before I gave him the mo’y –

R’t O’Cock Sworn

I was Reg’r of the C’t of Requests in April last – I recollect a Case of Orr & Cooper.

I did not receive the am’t of the Execut’n – I am not aware that it was my duty to receive any Mo’s except the fees – The Execut’n was never Enter’d in the Book of Costs – I have never ever received mo’s except the fees as Reg’r of the C’t of Requests in consequence of any Execut’n – I can’t say wh’r I have ever or not received Mo’y on Execut’n similar to the one in the Informat’n By Mo’s (monies)I meant fees upon irregular Executions when I acknowledged I received Mo’s upon them – I have complained of irregular Executions – I complained as soon as I knew irregular Executions had issued – It is my duty to Register Execut’ns When Execution applied for I desired Jones to issue it to get it signed by the Commiss’r – I did not receive any Mo’y for fees for this Execut’n

K. N. Kirkland Sworn

Reg’r of the C’t of Requests – I have been so since the 7 of June – I have seen this Execut’n before (1st) It was bro’t to my Office to show that the 2’d Execut’n had been p’d before – Proves 2’d Execut’n in the same Suit – I was applied to by Mr. Orr in consequence of the am’t of the 1st Execut’n not being p’d I received the Costs of the 2’d Execut’n Orr p’d it I rec’d any mo’y on Acc’t of the 1st Execut’n

Mr Murray –

Animus – Tacit assent – no Forgery – because many previous irregularities – Extortion – Forgery –
Not Guilty

Commentary

The allegation was that Jones had forged Brewster’s signature on various documents issued out of the Court of Requests. Jones was acquitted when it emerged that he had not attempted to imitate Brewster’s signature.

Jones was represented by Erskine Murray on this trial.

The remainder of page 39 and all of page 40 blank.

12. Transcript of trial of Catherine Fitzsimmonds for Larceny

Willis Note Book No 12 Page 41

Nov.r 26, 1841

Crim’l Court

Catherine Fitzsimmonds – Larceny –

John Turpin Sworn

I am ass’t draper to Mr Cashmore I recollect 8th of Nov’r. I was in the Shop on that day Pris’r was there, look’g at Goods Prints – she did not purchase any – she s’d she wo’d call again leav’g at the same a Parcel in my charge – she left the Shop – A piece of Ribband attract’d my notice lying on the gro’d – it was removed from the Counter one End on the floor the Roll seemed in her Pocket I went round & found the end attached to her person She said it had stuck to her she took it out of her pocket & gave it to me – Ribband Produced. Property of Cashmore & Co –

X’d

Ab’t a couple of yards hang’g behind her –

per CUR

I never saw her take up her Gown

Margaret Coffee Sworn

I live in Bourke Street – I was at Cashmores on the 8th of Nov’r – I recollect seeing the Pris’r there – I was ab’t two or three min’s there – a Piece of Ribband hang’g from down from her Petticoats Thinks it was Ribband produced – I saw the Ribband taken out of her Pocket – a White Pocket –

X’d

Did not see the pocket particularly –

Mr Murray

It might have stuck to her –

Peter McArthur – Sworn

Pris’r has serv’d in my family near 12 mo’s – We have consid’d her a very honest person all the time–
Guilty

Commentary

Erskine Murray appeared for the prisoner. Her condition was ‘Bond’ and she was an assigned servant of Dr McArthur. In his sentencing remarks, Willis said she was fortunate that the charge was common Larceny and not Larceny in a shop – he referred to the case of Vezella Rainbow convicted of Larceny on 27 August 1841 which he had hoped would have operated as an example but it hadn’t so he had to set a severe example.

The case of Fitzsimmonds is reported in the Port Phillip Gazette of 27 November 1841 and in brackets after the report is a comment that this is a case of the evils of allowing convicts to reside in district.

The remainder of page 42 is blank.

13. Transcript of trial of John Smith

Willis Note Book No 12 Page 43

26 Nov.r, 1841

John Smith – Stealing a Watch
Not Guilty –

Tho’s Brown Sworn

I live in Melbourne – I lived there in May last – I came to my House on that day – after I went out I left my Wife there when I went out I return’d ab’t one oclock I went out ab’t 9. The front door was locked the back door was broken open – door fastened by a Pot put against it –I left my Watch at the head of the bed – glass broken – It was gone when I returned Identifies Watch

Amelia Brown Sworn

I remember the month of May last my husb’d left me in the House one day I locked the door & went Home I returned ab’t one – & found the back door open – I found a Window open There was a Watch at the Head of the bed – It was gone when I returned – we went to the Watchmakers – he ascertained the No. – 6,553. Swears positively as to the Watch. The next time I saw the Watch was at Mr McGregors Shop (Watchmaker) – I saw the Watch afterw’ds at Mr Fawkener’s Room –

X’d

Knows the Watch from particular Marks – I don’t know Pris’r

Tho’s Hill – Sworn

Watchmaker – Not cert’n that I have seen the Watch before – no marks to lead me to believe that I have seen the Watch before – Tho’s Brown employed me to clean a Watch – a Common Watch – I don’t Know the No. of the Watch that Mr Brown employedme to clean – No of Watch produced 3,365 (possibly 3865)

Frederick Edw’d Fawkner –

In consequence of Information I receiv’d of the loss of a Watch which was descri’d I went to look for it & found the Watch prod’d at McGregor’s the Watchmakers – The Watch produced is the same–

X’ex’d

Pris’r states he got the Watch from Ja’s Griffith, I made every search for Griffith Pris’r said he gave two Pounds for the Watch – Pris’r ment’d this ab’t a fortnight since – I bro’t – 3 sev’l persons of the name of Griffith but the Pris’r co’d not identify any of them –

Cha’s Ellis Sworn

I know the Pris’r – I had dealings with him respect’g a Watch – respect’g the Watch prod’d – I bo’t this Watch from Pris’r on the 3’d of July – It was out of order – I gave it to Kirwan to repair – Pris’r told me it was his Fathers Watch several times – nearly two months before he asked me to buy this very Watch for 4 pounds. I wo’d rather say the 4th than the 12th of May – I gave the Watch to McGregor to mend –

X’d

I think it nearer to the first than the 12th

Ja’s McKenzie Sworn

I am a Watch Maker I live with McGregor the Watch Maker – I lived with (him) in July last. I do so still I saw the Watch at my Masters Cha’s Ellis left it to be repaired – I repaired it – I suspected it was not his from hav’g learnt the No. of the Watch elsewhere –

Defence – Mr Murray –

Presumption
Guilty
Tr. 7 yrs–

Commentary

Erskine Murray appeared for the prisoner. It is uncertain precisely what the charge was on which Smith was tried. Willis’ note ‘Stealing a Watch’ might indicate Larceny but the CRB records the conviction as ‘Robbery’; the Port Phillip Gazette of 27 November 1841 gives charge as Breaking Entering and Stealing which is the more likely.

Smith was FS.

The rest of page 45 is blank.

14. Transcript of trial of John Murray for Larceny

Willis Note Book No 12 Page 46

Nov.r 26 [1841]
John Murray – Larceny

Tho’s Halfpenny Sworn

I keep a Public House here the Wm Tell – I know the Pris’r. I have frequently seen him at my House – I did so the begin’g of this month – I had a Double barrell’d Pistol – I missed it – Missed one of the same description as the one produced – The one produced is the only one of the sort that I had – on 3’d or 4th of Nov’r

Fred’k Carman Sworn

I am a Constable – I know the Pris’r – I saw the Pris’r on that day in company with an’r man on the 6th of Nov’r – I watched him for a min. or two – when he saw me he quickened his pace – I took the pistol produced from him – I marked it – The Pris’r said it was his own –

Case –
Guilty
2 yrs Impris’t

Commentary

In his defence the prisoner made a statement that he had bought the pistol from Stevens who had left Colony. When sentencing him Willis observed that he was properly convicted and that the possession was in suspicious circumstances (Port Phillip Gazette, 27 November 1841).

Murray is recorded in the CRB as FS.

15. Transcript of trial of Marie Smith for Larceny

Nov’r 26, 1841
Marie Smith – Larceny
Acquitted –

Commentary

The Port Phillip Gazette 27 November 1841 reports that she was charged with the Larceny of a gold ring valued at 3/–, the property of James Kerr. Constable Waller found her secreting the ring. The newspaper comments she was acquitted because she might have been acting under the coercion of her husband.

It is not known whether she was married to either the John Smith convicted earlier that day or to the John Smith convicted on the following day.

The remainder of page 47 is blank.

16. Transcript of trial of George Kilpatrick for Horse stealing

Willis Note Book No 12 Page 48

26th Nov’r,1841

George Kilpatrick Horse stealing
Not Guilty –

Ja’s Simpson Sworn

Some time in Aug’t I was the owner of a Brown Gelding which I missed from Capt’n Lonsdale’s Paddock – The Horse was bro’t to me ab’t a fortnight or 3 weeks after’ds by Wm Oxley B Policeman – Swears as to the identity of the Horse –

X’ex’d

I off’d 10 pounds for the recovery of the Horse two pounds fur’r reward in event of Convict’n –The Horse was not so much alter’d but wh’t I co’d swear to him

Wm Oxley – Sworn

One of Mr Powlett’s Border Police Man – I recollect the 17th & 18th of Aug’t – I was on duty betw’n the Goulburn & the Big Hill I recollect being on my return from Mr Jamieson’s Station to Green’s Stat’n on the Sydney Road & betwixt light & dark in the Even’g I discov’d a fire a distance from the road – I went up & found two men & two Horses one a Grey & the other a Dark Brown Horse which was the Horse I gave to Mr. Simpson – I saw a Man tak’g a Saddle off the Brown Horse – the Pris’r at the Bar was the Man – The Horse was in a Sweat – The man disappeared who was tak’g the Saddle off & likewise the man with the Gray Horse – I was unarmed I tied a Stock Whip round the Horse’s Neck – I did not know Mr. Simpson was the owner of the Horse – I took the Horse to the Police Station, made inquiry & from what I learn(ed) from Petit I ascertain’d it was Mr Simpson’s – I knew the Pris’r before – I saw him afterwards in the Watchhouse I had bus’s at the Watch House when I came down – I recognized the Man as the person who took the Saddle off the Horse – Twilight when I saw him take the Saddle off I swear positively to the Man I co’d see his features – I never let the Horse out of my possess’n till I gave him to Mr Simpson –

X’ex’d

I have been in the border Police since the first Establishm’t – I have been promoted – I am now a Trooper again. I came to Melbourne on the 22’d of Aug’t I had been at the Stat’n 3 or 4 days – the 18th was ab’t the time I took the Horse not positive as to date – Foggy Even’g – betw’n 5 & 6 just ab’t Sun Set – Ab’t 15 or 20 yards where I saw the Man – The Gro’d lightly timbered & little scrubby Man was stand’g fac’g to me – His head was not under the Saddle – he was look’g me in the face – The Horse was betw’n me & the man – The other man was stand’g along side the Gray Horse – I am as positive ab’t his features as those of Pris’r I approached at a steady Walk – I had an opportunity of ex’g their features – I saw the Man at the Watchhouse in Melbourne – I also saw him at a Livery Stable I told Mr. Simpson – I did not say anything to the Prisoner at the Livery Stable – I left Melbourne & Pris’r was discharge(d) – I saw him afterw’ds at the Livery Stable – gave Informat’n & he was apprehen’d I can’t be mistaken as to Pris’r’s face. – Mr. Simpson said he sho’d give me 10 pounds The Horse was taken near the Road – I never met the Pris’r in that Neighbourhood I went to search for him – Wood’s Station Where Kilpatrick was formerly liv’g – I have often seen Pris’r with Wood in Town – I did not see the Man from two Months from the time of tak’g the Horse till I saw him in the Watchhouse I swear I was not in Comp’y with the Pris’r in a Public House in Swanston Street after I took the Horse –

Defence

Mr Barry –

Believes the Man not to be Guilty – Alibi – Evidence – Uncorrobated

Tho’s Trotman Sworn

Brickmaker – Lives on Sth side the River – I know Pris’r have known him nearly two yrs – from Ab’t 12 of Aug’t last Pris’r came to my place & I got ab’t 15,000 I wanted to Burn.(?) He staid with me the whole of the Month I went to the Bush – I swear Pris’r staid with me till the end of Aug’t – I recollect the 17th of Aug’t The Pris’r my wife Wm Knapp & myself my birthday 46. He was with me that Ev’g & the next Even’g – Pris’r was with me next Morn’g – Slept in my House that night – Not mistaken – I can say no evil of him

X’ex’d

I came from Hobart Town ab’t 3 yurs ago. I lived in Hobart Town – I came out in the Malabar at Gov’t Expense – No Intention of my dau’r marry’g Pris’r – too young Born in England – out here 17 yrs – Dau’r 14 yrs – Child dur’g? his Absence – Kilpatrick has no Horses now. He had two Horses in the Month of Aug’t – I bought one sold them both I paid – One 50 gns – the other 40 pounds – male in the …

Wm Knapp Sworn

Free – been here nearly 2 yrs – I know last Wit’s never in his Employm’t – I have often called on him. I called on him on the 17th of Aug’t – his Birthday I am positive – His Birthday – Kilpatrick was there – I knew Mrs Trotman – two – a girl & a boy before her Husb’d left her – Girl alive now. Oldest Dau’r three & four & twenty yrs – I knew her 15 yrs ago in Engld – The Eldest Child liv’g with Trotman is 14 or 15 – I am positive Pris’r was there on the 17th

X’ex’d

I saw Pris’r on the 18th. I cant say I saw him there on the 16th – Does not know where Capt’n Lonsdale lives – I live on the Eastern Hill – I have visited the Pris’r in Jail – I went with Trotman to the Jail & once (with) his Dau’r – I visited him yesterday – I did so soon after he was in – Nothing passed as to Trial – I know Pris’r had two Horses – I went to the Birthday about one oclock – I had two or three Glasses – Sun was down betw’n 7 & 8 –in Aug’t I never went to the Beach with Trotman Never at Liardet’s with Kilpatrick – Kilpatrick did not ask me to appear as a Pris’r He had no thought but that he wo’d get off – He might have calculated upon our (the next word is “Witn’s” but has been crossed through) I never heard any thing more ab’t the Trial

George Wintle Sworn

I saw Trotman at the Jail 3 or 4 times – The intend’d father in Law – I heard them talk’g about the Marriage – I remember Kilpatrick sign’g two receipts – Ante dated a Month – 5 days before the Committal Girl ab’t 15 yrs of age –

Edw’d Murphy Sworn

I am Turnkey – I know Trotman – he was at the jail yesterday – he said he wo’d attend to his bus’s – his Trial came on – to send his Clothes – &

Oxley recalled

I recollect the 17 of Aug’t – when I saw the Pris’r near the Big Hill –

The man Trotman & Knapp if they swore the Pris’r was here on the 17th of Aug’t wo’d swear a falsehood – I called at Beveridge’s public House –

I never purchased any thing from Pris’r I never sold Pris’r any Prop’y – I once made Pris’r he p’d me for mak’g it – 18 mo’s ago – he had the identical jacket on when I saw him with the Horse – The velvet had turned light brown –

Guilty –
Tr. for life –

Commentary

Redmond Barry appeared for the prisoner.

The James Simpson, who owned the horse, was probably the Magistrate for the Melbourne area.

Barry’s comment ‘Evidence – Uncorrobated’ (uncorroborated) in his final address to the jury would have been a standard comment about acting on the identification evidence of one witness.

Barry called witnesses to give the prisoner an alibi. The cross–examination of Trotman indicated he had been transported to VDL whereas Knap was ‘free’. After the alibi evidence had been given, James Croke called various witnesses to prove contact, in the goal, between the prisoner and his witnesses. After Kilpatrick was convicted and sentenced, Trotman got 3 months for prevarication and Knapp was reprimanded.

The sentence of transportation for life imposed on Kilpatrick was illegal as the maximum permissible in NSW was transportation for 15 years. Willis later realised he had made a mistake in this case and that of Patrick Kelly sentenced on 15 December 1841 for the same offence. The mistake was caused by Willis consulting a book on the Criminal Law of VDL where the sentence was still transportation for life (see Mullaly, pp, 661–3).

17. Transcript of trial of John Levy for Cattle Stealing

Willis Note Book No 12 Page 54

Nov. 17, 1841

John Levy – Stealing one Steer

Simon Armstrong Sworn

I live on the Eastern Hill I am a Stock keeper – I know the Pris’r – I saw one Bullock in the Stock yard – branded M K on the near ribbs.

X’d

Stock yard at the Flag Staff a place where the Town herd was kept –

per Cur –

I was applied to give up the Bullock & refused to do so with’t an order of the Magistrate – I did so because I knew Levi was in Jail –
Verdict Not Guilty

Commentary

Apparently there was no evidence to connect the prisoner with the bullock and he was acquitted by direction. Another unspecified charge against the prisoner was then abandoned by the Prosecutor. (Port Phillip Gazette 1 December 1841)

The remainder of page 54 is blank.

18. Transcript of trial of Thomas Jones on Larceny charges

Willis Note Book No 12, Page 55

Nov. 27,1841

Tho’s Jones – Larceny by a Serv’t
Common Larc’y

H’y Davis – Sworn

I kept the Royal Hotel – the Pris’r was my Serv’t – I missed sev’l things while he was in my Service – enumerates – then Wine amongst other things. I recollect the Saturday previously to the 1st of Nov’r 30th of Oct’r I saw Elliott on that day the pris’r was present. I saw three Bottles of Sherry wine on the person of Elliott two were full & one not quite full it had been open’d – Elliott said the wine was given him by the Pris’r – he said this in the presence of the Pris’r – I asked Pris’r if he did do so & he said he did – I asked him a second time & he said he did – I said I wo’d not overlook it – I sent for a Constable & gave him in charge –

X’d

I don’t recollect putt’g a bottle of wine into your hand – I am sure the three Bottles of wine were not drainings – The bottles were Sealed with a yellow Seal with the name of the wine – I never found any of the things I lost on you – The wines were my prop’y – Pris’r ab’t 4 mo’s in my Service – I cant recollect putt’g a bottle into Pris’r’s hand

P’k Stapleton Sworn

Policeman recollect 30th of Oct’r – last Wit’s gave Prisoner in charge to me for steal’g 3 bottles of wine Identifies the bottles – speaks as to the broken one –

Case –
Defence –
Verdict – Guilty

The remainder of page 56 is blank.

19. Transcript of trial of James Elliott Receiving Stolen Goods charges

Willis Note Book No 12 Page 57

Nov’r 27, 1841

Ja’s Elliott – Sworn – Receiv’g Stolen Goods

H’y Davis Sworn

I am the Proprietor of the Royal Exchange Hotel I recollect the 30th of Oct’r I know the Pris’r he was in my Service I saw him on the 30th of Oct’r – in my House – With respect to three bottles of Wine Pris’r had them on his person – he had a long Coat on – He generally was at work with’t a Coat – He was going out He had a long Coat on when I saw him – a Surtout Coat I did not see any bulk ab’t his person – I saw the Wine on his person – one bottle in his hand – He said “Tho’s” gave him the Wineby Tho’s I understood “Tho’s Jones”– He had one of the three Bottles in his hand – Sherry Wine – Bottles produced My Prop’y. Pris’r said Tho’s gave it to him I told him I did not believe him, Then he said Tho’s did give it to him – I sent for Tho’s & in the presence of Pris’r asked him if he gave the Wine to the Pris’r he said I did – Tho’s was ab’t to walk away & I called him back & said “Tho’s be certain wh’r you gave him (Pris’r) this Wine or not and he said I did give it to him – Elliott had not the Wine in his hand at the time – I sent for a Constable & gave him in Charge

X’d

The Pris’r was then in my Service – Anderson was in the House at the time – Pris’r assisted at a dinner – I gave permiss’n to “Tho’s” to give away the drain’gs I told the man he might have some Bottles – I swear the Wine to my belief to be

my Prop’y –

Tho’s said he expected to make a few shillings by those Drain’gs –

John Anderson Sworn

I live at Davis’s I recollect the 30th of Oct’r I was in Davis’s Storeroom on that day I saw the Pris’r go’g out of a room adjoin’g the Storeroom No communicat’n betw’n that Room & the Storeroom Pris’r was employed in the Hotel getting things to rights after the Ball – I perceived him going out of the Room adjoin’g the Store & know’g it was not a usual place for a man to be I was rather suspicious I perceiv’d Pris’r with a long coat on & know’g at the time that he had no bus’s with that Coat on I went after him – I perceived him going out of the Room adjoin’g the Store & follow’d him – I spoke to him after he got out of the House – I called to him & asked him where he was going – he said he was going home – this was in the middle of the day – When he said he was going home I said I hope not with those things in his Pocket – he said he had nothing – at the same time I had my hand on a bottle he had in his Pocket a full bottle – I took one bottle out of his pocket & desired him to give me the remainder – Identifies the Bottles – He said they were drain’gs – I took the bottles from him & kept him in the Kitchen till Mr Davis came –

X’d

Pris’r was lent to me by Davis – I co’d see the Pris’r thro’ the cracks of the boards – There was another room, an inner one then occupied by some other person – I am not aware that Tho’s or Pris’r attend’d on this person The room in which I saw the Pris’r is not lighted at all –

Tho’s Jones Sworn –

I was in the Service of Davis – I recollect hav’g given the Pris’r Wine on the Friday – Three tumblers Wine glasses – He took it in my presence – I saw no bottles of Wine ab’t his person – I never gave the Pris’r these bottles of Wine (Wine which was stolen prod’d)

X’ed

I have had drain’gs given to me by others The room from which the Wine is said to have been taken was behind where the gov’r sat – a room into which the Waiters had free access the night of the Dinner –

per Jury –

I got nothing from this man for it –

Patrick Stapleton Sworn

Constable. I recollect 30th of Oct’r I recollect hav’g seen the Pris’r on that day – he was given in charge to me with the other man – Jones for steal’g 3 bottles of Wine – I took them in Charge to take them to the Watch House – Bottles produced, given me by Davis, confident, I had a large coat on & put a bottle in each Pocket & one in my hand – Bottles afterw’ds left at the Police Office – On my way to the Watch House the Pris’rs Elliott & Jones – I asked Elliott what it was ab’t – at this time Elliott said it is all ab’t that d – d bottle which was placed in my left pocket. I perceived an open Knife in his hand at the time & he said Why if I wo’d stand to him to allow him to cut off the Seal or do it myself & I said I wo’d not – I bro’t him to the Watch House, & had the Knife taken from him –

X’d

Case
Receiv’g Stolen Goods knowing them to be Stolen –
Guilty –

Commentaryon Jones and Elliott cases

Henry David had the Royal Exchange Hotel in Collins Street.

Jones was ‘FS’. Elliot was ‘Free’.

The sentence imposed was imprisonment for 48 hours.

The Port Phillip Gazette 1 December 1841 reported that after Elliott was convicted both Jones and Elliott were put up for judgement (i.e. sentence) and Willis commented that Larceny by servants was serious – The Hon. Mr Erskine Murray then informed Willis that Henry Davis wanted to make observation about Jones – it was to the effect that when Jones said that he gave wine to Elliott he (Jones) did not know what he was saying. J. Hill, watchmaker, one of jurors said that was his impression. Gourlay (the jury foreman) said he had asked each juror his opinion and Hill had agreed with the guilty verdict – Willis asked Hill why he didn’t dissent when the verdict was announced and Hill said he was never asked for his assent to the verdict – Gourlay repeated his view and Croke said that Gourlay was highly respectable gentleman and efficient as foreman. Willis said he would consider the matter and suggested Croke remove Hill from the jury. After an adjournment Fulton and Greaves replaced Hill and Hobson (permitted to retire) on the jury for the next trial. After the Smith and Sullivan cases these 2 prisoners were put up and Willis commented on the singularity of case and sentenced them to 48 hours.

The rest of page 60 is blank.

20. Transcript of trial of John Smith for Larceny

Willis Note Book No 12 Page 61

27 Nov’r 1841

John Smith – Larceny

Wm Monger Sworn

I am a Carpenter in Collin’s Lane – I keep a deal yard – I have missed Planks – 4 – I have seen one of these Planks at the Police C’t Shows Marks & states Circ’s by which he can identify the Plank Swears it is his property – I know the Pris’r he lives near me I believe him to be a Shoe maker – Value 14s Swears Plank to be his prop’y – I have known Pris’r this two Y’rs & have always tho’t him till now to be an honest man I was foreman to Mr Morrison & he was then a party to Mr Morrison & till now I never knew any thing ags’t him. I did not see Pris’r with the Plank at all –

D’l McGlynn Sworn

A Night Watch man upon Big Bourke Street – Constable Spec’l – I recollect the 3rd of this Month – I saw the Pris’r on that Night between 12 & one – dusk – not very light – positive the Pris’r is the Man – I saw him with that plank (prod’d) Sure he is the Man & that’s it – on his Shoulder – Three more Planks on this Road – Plank taken to the Police Office –

Jacob Wagoner – Sworn

Spec’l Constable & Nightwachman in Collin’s Street. On the 3rd of Nov’r at Night I saw McGlynn in Collin’s Street – I was called on McGlynn to assist him with a Pris’r to the Watch House – The Pris’r was the Man – I went afterw’ds for the Plank ab’t1/4 of a Mile from where I first met with Pris’r –

Guilty
12 Mo’s Impris’t –

The rest of page 62 is blank.

Commentary

‘deal’ was sawn fir or pine wood (OED).

‘A Night Watch man upon Big Bourke Street – Constable Spec’l’ – Big Bourke Street was the section west of Swanston Street. Night Watch men were often sworn as Special Constables if there was a shortage of Police.

Smith was ‘Free’.

21. Transcript of trial of James Sullivan for Larceny

Willis Note Book No 12 Page 63

Nov’r 27,1841

Ja’s Sullivan – Larceny – a Bottle of Porter

H’y Ja’s Ellis Sworn

Commands the Enmore now lying Hobson’s Bay. I recollect the 12th of Nov’r. I know the Pris’r I saw the Pris’r sev’l times on that day – nothing to excite my Suspicions – I ex’d my Stores on that day betw’n 12 & one clock – Ship’s Stores Casks of Porter – I found one Cask the head partly open & a bottle or two out of it apparently – Bottles sealed with red Pitch – Porter & ale so sealed – Between Decks It was a Porter Cask –

Ja’s Wm Smith Sworn

Ch. Mate of Enmore – I know Pris’r recollect 12th of Nov’r – gave direct’ns to go betw’n Decks – I call’d him up – he came up on opposite side – I saw a Bottle concealed in his bosom He said he had nothing there – he threw a Bottle over board – a Porter Bottle red seal – Porter near to where the wood was for which I sent Pris’r I went down with the Capt’n & found the Porter Cask partly open

X’d

Cant swear which was the Bottle, but co’d see that the Seal was not broken & that it was a Porter Bottle –
Guilty –

Commentary

‘Porter’ was beer of a dark brown colour and bitter taste brewed from malt partly charred or browned by drying at a high temperature (OED).

‘bosom’ – inside his shirt; both men and women carried items in their ‘bosom’.

The jury added a recommendation to mercy to their verdict and Ellis said he was willing to take Sullivan back as a member of the ship’s crew (Port Phillip Gazette, 1 December 1841).

The CRB records that Sullivan was ‘Free’ and that he was imprisoned for one week.

22. Transcript of trial of Thomas Groves for an Assault

Willis Note Book No 12 Page 64

Nov’r 29,1841

Tho’s Groves – 1st Ass’lt with intent to Maim
2nd to disable
3 bodily harm
4 Comn

Tho’s Leigh Sworn

Constable at Portland Bay – I know the Pris’r – he was once in my Custody. I recollect the 25th of Sept. last – I was engaged on that day as Constable – I know the 2’d River – I was there on that day a Military Man of the 80th Reg’t on duty with me – I stopped at the 2’d River at Mr Evans’s that night. I reached Evans ab’t 5 oclock in the Ev’g 2 Bushrangers in charge – When I arrived at Mr Evans’ House in Comp’y with the Soldier I took the two Bushrangers into the Kitchen to have some Dinner –

Agreed to take a Verdict for a Three Mo’s Impris’t & a fine of
Common Assault
10 pounds

Commentary

Groves who was FS was charged with an assault and the Information set out alternative levels of seriousness of that assault. The assault occurred while Constable Leigh was escorting Groves to Melbourne in custody for some unstated reason.

After Leigh had given some evidence, Redmond Barry for Groves consented to a verdict of common assault. The fine aspect of the sentence involved that Groves remain in custody until the fine was paid. He was still in custody in February 1842 but his sentence was then remitted because of his ‘attention to the unfortunate men lately executed’ (VPRS Series 19 Units 26 and 29).

The two Aborigines, known as Bob and Jack were executed on 20 January 1842 (see below for their case).

The rest of page 64 is blank.

23. Transcript of trial of John Bollman and Frank Nicholls for Larceny

Willis Note Book No 12 Page 65

Nov’r 29, 1841

John Bollman & F’k Nicholls – Larceny

H’y Bowden Sworn

I am Master of the Lapwing Schooner – I know the Pris’rs I saw the Pris’rs on Board the Lapwing on the 4th of this Month – I was on the Wharf she lying ab’t 200 yards off the Wharf at Williams Town – I know Nicholls – I saw him go below. I left a Compass on board the vessell when I came ashore ½ an hour before – It was in the Cabin a small Locker not fastened – Bollman was sitting on the forep’t of the Hatchway while the other went below – I saw Nicholls come up – Pris’rs left the left of the vessel before I came up – I had left the shore I had one man on board – he was asleep on the locker below when I got on board – Bollman was stand’g in such a position that he might have put the compass with’t my seeing it –

X’d

The man on board who was asleep was in liquor – I won’t swear the man did not lend the Pris’rs the Compass – I first saw the Compass after I missed it (when) the Water Police had it on Shore – I was not on board for some portion of the time – I can swear it was not taken when I was on board – The vessell was stranded –

G. G. Sullivan

Sworn Inspector of Water Police I recollect the 4th of this Month – I went on board the Louisa Marion on the 5th. The Pris’r Bollman was the only man on board at the time – Pris’r Nicholls came on board when I was searching the vessel I asked him where he had stowed the Compass he had taken from the Lapwing – He denied that he had any Compass on board – I found the Compass nailed under the Forecastle Deck – Nicholls acknowledged the Compass to be there –

X’d

Nicholls was in Charge of the Louisa Marion –

Defence – borrow’d the Compass –

Wm Bell Sworn

Sailor – I have lately been in Bowden’s Employm’t –
Guilty

Commentary

‘Williams Town’ was then a common way of referring to the place now known as ‘Williamstown’.

Both prisoners were ‘Free’ and each was imprisoned for 2 months

The rest of page 66 is blank.

24. Transcript of trial of Mary James (alias Mary Vallance) for Larceny from the person

Willis Note Book No 12 Page 67

Nov’r 29, 1841

Mary James otherwise Mary Vallance
Larceny from the person –
Acquitted –

Commentary

James was acquitted when the person from whom she was alleged to have stolen money did not attend to give evidence; the money alleged to be stolen (£13) was given back to the prisoner (Port Phillip Gazette, 1 December 1841).

Another trial of Mary James, alias Mary Vallance, on was held on 4 December 1841 (see below).

The rest of page 67 is blank.

25. Transcript of trial of John Wilson for Forgery

Willis Note Book No 12 Page 68

Nov.r 29,1841

John Wilson – Utter’g a Forged Check
Plea Not Guilty Australasia

1st C’t Forg’g sett’g forth prisoner’s intent to defraud B’k of Australasia

2’d C’t Forg’g generally not sett’g forth the Instrum’t – same intent
3 & 4 same intent to defraud Tho’s Manifold & others
5th C’t Forg’g generally with intent to defraud Mr Cashmore and another
6th Utter’g with intent to defraud Michael Cashmore

Michael Cashmore Sworn

I keep a Shop here I know the Pris’r I recollect the 4th of Nov’r When I went into my Shop on that afternoon the Pris’r & an’r man were there standing in front of the Counter – I saw a Cheque that day in Collins Street – I returned to my Shop with the intention of giv’g these Men in charge, with the Cheque in my possession – When I went into the Shop the Pris’r asked me if I was about giv’g him the change of the Cheque for which he was waiting – I told him I wo’d give him the change as soon as my young man returned with the Keys – He asked me for the Cheque so that he might indorse it – I told him it needed no indorsem’t – he seemed in a great hurry to leave the shop – I delayed the Pris’r by various means till my Shopman arrived with a Constable I have a Customer named Manifold – The Cheque produced was hand’d to me by my young man – The Pris’r saw the Cheque in my hand – wanted to indorse it and wanted me to give him change for this very Cheque

Percy Wm Hesketh Sworn

I recollect the 4th of Nov’r I am in the Employm’t of last Wit’s I attend in his Shop – I saw the Pris’r in his Shop on the 4th of Nov’r he came to purchase some goods – Seeing him on the Monday I asked if he bro’t Mr Manifold’s Order for the goods as he said he came for them for Mr. Manifold – he bo’t goods to the am’t of 15 or 16 pounds. I made out the Bill by Pris’r’s direct’n in the name of Bourke – he said that was the name – he tendered me a Cheque – Cheque Identified – the one I gave to last Wit’s same afternoon in Collins Street – I went to the Bank & ascertained that if the Cheque were presented the next day it wo’d not be p’d. This was after Bank’g hours – I am acquainted with Mr T. Manifold I asked the Pris’r how he spelled his Name he said B U R KE – it made no difference – I am sure the Pris’r is the Man that called himself Burke & said in the first instance he came from Manifold – It is not the Writ’g of Mr Tho’s Manifold –

David C. McArthur

Manager of the Australasian Bank I have Customers named Manifold – I do not think the Cheque is the Writ’g of any of the Manifolds – On the faith of that signature I wo’d not pay the Am’t of the Cheque –

X’ex’d

I am acquainted with the hand writ’g of all the Manifolds – no others of that name keep an Acc’t with me – to the best of my knowledge it is a forgery – Not Tho’s Manifold’s Signature

C. L. H. Hafrey Sworn

The Cheque is not the hand Writ’g of John or Peter Manifold –

Guilty on the 6th C’t
Transp’n for life

Commentary

The Information contained 6 alternative counts in order to allow for different interpretations of the transaction about whether the prisoner was the forger or the utterer and about the intended victim.

The prisoner was ‘Bond’ which meant he was still serving his original sentence of transportation.

In sentencing Wilson, Willis referred to the serious nature of the offence and that those convicted of it were men who had been transported. When he was sentenced to transportation for life, the prisoner said ‘I am sorry your honour cannot hang me’ Willis agreed (Port Phillip Gazette, 1 December 1841).

The other man referred to in Cashmore’s evidence as being in the shop with Wilson was George Johnson and he was also charged with this Forgery and was in custody. After Wilson was convicted, James Croke announced that he would not make any Information against Johnson and he was discharged. (Port Phillip Gazette, 1 December, 1841). Sometimes, Willis did no make any note of such announcements.

The Manifolds to whom reference is made were members of the well known Western District family.

26. Transcript of trial of John Moonee

Willis Note Book No 12 Page 71

Nov’r 29, 1841

John Moonee – Extortion –
Acquited –

Commentary

James Croke did not lead any evidence against Moonee (more commonly known as ‘Mooney’) and he was discharged (Port Phillip Gazette 1 December 1841).

See next case where Moonee was a prosecution witness.

The remainder of page 71 is blank.

27. Transcript of trial of Joseph Wm Houston

Willis Note Book No 12 Page 72

Nov’r 30, 1841

Joseph Wm Houston – Extortion

E. Jones Brewster Sworn

Comm’r of the C’t of Requests in Oct’r last. I know Def’t – was Bailiff of the C’t of Requests. he acted as such – The signature to the Produced Paper Writ of Execut’n is mine.

K. W. Kirkland Sworn

Was Reg’r of the C’t of Requests when Writ of Execut’n prod’d bears date – it was given to Def’t to execute – he did execute it – I received 6 pounds 11. 4d the name

K Wm Kirland attached to the Writ is my Signature – I know nothing more ab’t the Matter.

John Moonee Sworn

Labourer – I know Def’t – I know Mrs. Mills – I do not know Knox – I applied to

Mrs. Mills for the Am’t of an Execution by order of Mr. Hooson– I was Employed by him – she desired to Mr Peers the Doc’t prod’d was in my possession when I applied to Mrs Mills – I told Houston & he desired me to go to Peers – I did not receive any Mo’y from Peers – I saw Houston receive Mo’y from Peers – I saw him receive 7 pounds 1s. & 4d on the Doc’t prod’d –

Judgm’t 5. l9. 10.
Costs 7. 0.
Exec’n 4. 6.
6. 11. 4.

Houston out of this gave me 6s. for going out on this bus’s the day before – Mr Houston always gave me 10s for every execut’n

X’d

I think I travelled 10 miles when I went to Mrs. Mills – I made no charge for this – I think Peers made an objection Docum’t shown to him Peers before he went into the Auction Room – Def’t said there was 10s for going out to Mrs. Mills – I never heard Peers make any objection to the Debt or Dem’d or the Extra Sum of 10s Houston told him it was for the Extra trouble of the Bailiff going out & he paid it –

John Jones Peers – Sworn

Not Guilty –

Commentary

Houston was more commonly known as ‘Hooson’; he had been a Constable and then became the bailiff of the Court of Requests and used Mooney (who had also been a Constable) to assist in executing Court orders to collect money due after judgements. He apparently made a practice of charging ‘travelling’ expenses etc. by adding them to the amount due. James Croke abandoned the case in running and Hoosen was acquitted (Port Phillip Gazette, 1 December, 1841).

Both Hoosen and Mooney continued to be active in Melbourne for many years.

The rest of page 73 is blank.

28. Transcript of trial of Joseph Day & Robert Bruce

Willis Note Book No 12, page 74

Nov’r 30,1841

Joseph Day & R’t Bruce – Robbery

Mr Croke

Mr Mitton rece’d 30 pounds Union B’k Notes of 5 pounds each – Cut Mitton with a Stick – girths of Saddle Cut – Remarkable Stick – Notes – Pris’rs at Wallace’s Station Mitton’s Watch on Day – & 5. 5 pound Notes –

John Mitton Sworn

I recollect the 30th of Oct’r – last Sat’y – I left Melbourne on that day ab’t 12 oclock I reached The Kinlochue Inn ab’t 3 oclock – I stopped there two hours or more – I took some Brandy & Water & had my Dinner I was sober – I took what wo’d do me good

I was capable of doing my bus’s – I saw the Pris’rs at the Kinlochue Inn that day – I had 30 pounds on my person besides some Silver – B’k notes – five 5 pound Notes & 5. ones – & ab’t 1 pound in Silver – I had a Watch about me – I had conversat’n at the Inn with Bruce he asked me if I knew where he co’d get a job of Work – I asked wh’t sort – he said Splitting – I directed them to Greens – They left the Inn before me – ab’t an hour – I left the Inn at 5 oclock in the Even’g. Intend’d going home – I stopped ab’t 2 miles from the Kinlochue betw’n that & Beveridges. I gave my Horse a drink – & I let him eat some grass – I did not take the saddle off – I then after stay’g ab’t ¾ of an hour I went to Beveridges – I was attacked as I was going on to Beveridges ab’t 2 miles from where I stopped ab’t 1 ½ mile from Beveridges – I was riding along when a man sprang from behind a tree – just after dark – a short man– he struck me on the Horse on the head slightly – The Horse took fright & jumped from under me – I fell on my temple – After I was on the Gro’d there were two men seized me – My Forehead was cut by the kicks they gave – one put his knee on the back of my Neck & his hands on My head to keep my face to the gro’d the other man was kick’g me on the face – My Money was in my breast pocket in my Pocket Book – My Coat was open When I recov’d I found my Pocket Book in my Coat – cut pocket – My Watch was taken from my Waitscoat Pocket & the Guard left – I was so hurt as to be insensible – I got the Notes at the Union Bank – 6 fives – I changed one at Melbourne at Mr Andersons & got 5 ones in Exchange – Watch produced – Swears to the Watch – When I came to myself I found my Saddle with the Girth Cut – I then went in search of my Horse – I found him 20 or 30 Rods away from the place – I bro’t my Horse up & put my saddle on him & sprung on his back & proceed’d to Beveridges (2 ½ lines crossed through) – I did not meet the two men on my way from the Kinlochue to Beveridges any persons except the persons who attacked me – I saw the Men at Beveridges the Men met at the Kinlochue after I got into the House – The Pris’rs are the Men – The place where I was attacked is ab’t 2 Miles or 1 ½ from Beveridge’s – I reached Beveridges ab’t 8 oclock I was getting my face washed & head dressed & those two Men then came in. They said they were sorry for wh’t happen’d – They then left the Room & I went to bed – The day after between 8 & 9 in the Morn’g I got my Horse & went to the place where I was attacked I found a Stick – the Stick was Notched – (Stick produced). I bro’t that Stick with me to the Kinlochue Inn, all the persons there saw it – I know James Sexton –

X’d

I left Melbourne ab’t 12 oclock – I was at the Commercial Inn in the Morn’g. I believe I had a glass there – I don’t believe I had more than one – I then went to Murphy’s place – I had nothing to drink there – I then left Melbourne – I don’t recollect drink’g any thing more before I left Melbourne – At the Kinlochue I drank as much as wo’d do me good – I can’t say how many glasses I drank – I cant say I was quite sober but I was capable of transacting business – I have seen Bruce before once or twice – I was sitting inside the Bar & Bruce came & sat on the Counter – I am sure my Pocket Book was in my Pocket at the Kinlochue Inn I felt it at leav’g – I felt by putting my hand in my pocket – I might have been an hour riding to the Water Hole, ab’t 2 miles or 2 ½ miles – I sat down on the grass when the Horse was feeding I sat down till dusk – I might have ridden ¾ of an hour before I was attacked – the Horse was Walking – It was Moonlight not very clear – I met no one to my knowledge from leav’g the Kinlochue to where I was knocked down – The blow struck me on the head – the Horse started & I fell on my face – I was struck by a Short Man – I did not see the second Man at all – I heard them whispering – I was not sensible after I received the kicks – I did not feel them take my Pocket Book out – I know there was one on my back & one kicking me – My nose was close to the Gro’d – I was lying on my face when I came to myself – I saw the saddle with the Girth cut & then went for the Horse – I was quite sober – I saw the Hostler when I first came to Beveridge’s – I then went in saw Beveridge – Pris’r came in while I was hav’g my face washed – I did not give Bruce a Message – the Hostler did – but I did not – He told Bruce not to let JW know but Mr Mitton knows, it wo’d make him uneasy – I don’t belong to the Temperance Society – I keep a House for Travellers, eating, & accommodat’n for Horses – I came down for a Licence – I did not get one – the reason was two Houses were not required on the road – When the Pris’rs came into the room where I was they condoled with me – Bruce said I hope you do not think I did it” or something of that kind – I had a p’r of Spurs on I cant say that I had not a Switch – I had not a Stick like the one prod’d in my hand when I left the Kinlochue – There was a small bottle of Castor Oil

X’d

I p’d Mr Carrington 2 Gns for draw’g up an Applicat’n for a Licence – he told me to take the Application & get five respectable House–holders to sign it – I did so – & returned it to Mr Carrington – I saw Mr. Carrington afterw’ds & he told me it wo’d be all right – to get my House up as quickly as I co’d as mine was the 1st Applicat’n – I did so – I came in expect’g an Ans’r from Sydney respecting a Licence – I went to the Melbourne Police Office & was told by the Clerk he knew ab’t it – I went & got a fresh Appplicat’n –

K. W. Kirland Sworn

Clerk of the Police Bench I recollect an Applicat’n for a Public House Licence being made by last Wit’s – It was not granted because a person named ? Anderson had made a previous application for a Publican’s general Licence at Kilmore – the same place Mitton applied for –

Wm. Patterson Sworn

Identifies the Watch as one he had seen at his Shop in the possession of last Wit’s.

X’d

I enter’d the Watch in the name of Mr. Maton which I thought was his Name –

Ja’s Sexton Sworn

I live at the Kinlochue Inn I am a Waiter there – I saw the Pris’rs there the 30th of Oct’r they had refreshm’t there – they stopped an hour – somewhere about 2 oclock a.m. I waited on them for What they called for – they paid me – after they were there some time I asked them were they going to stop all night – they s’d no. there money wo’d not allow them – I saw a bundle – Day carried the bundle with a Stick – When he was leav’g the House he took this Stick (prod’d) with him, states how he knows the Stick) he carried the bundle on that stick out of the House – on a Saturday – between 3 & 4 oclock Mr. Mitton was sitt’g in the Bar of the House at the time they went away – I am positive sure it is the Stick – The Pris’rs left the House in Company – The Tall Man p’d The small man I gave nothing to – The small man had the Stick –

X’d

I served Pris’rs with drink – I am Mr. Murison’s Serv’t – Mr Mitton came before the two Men – he was first – he remained betw’n 3 & 4 hours – he went betw’n 5 & 6 – He was in the Parlour & came out after hav’g had his Dinner – I served Mr. Mitton with 2 or 3 glasses of Brandy & water – The smallest Pris’r had the bundle in his hand when he came in to the House – I saw Mr Mitton go away, he was in the same state when he went away as when he came in – I co’d see that he had been drink’g when he was going away but he was no ways drunk – Mitton had no Stick with him when he went away –

Rex’d

I co’d not say Mitton had not tasted liquor when he want away – He mounted his Horse in the same way I always saw him –

John Somerville Sworn

I live at Kinlochue Inn – Cowkeeper to Mr Morison – I saw the Pris’rs at the Kinlochue Inn on a Saturday thinks ab’t 5 Weeks ago – Stick prod’d has seen it before – It was just behind the Pris’rs I know the Pris’rs they took their Dinner at the Kinlochue Inn – I was going to cut the Stick & the Waiter told me not to do so, it belong’d to the two men, Pris’rs – I saw nothing more of Pris’rs till Constable bro’t them back again –

X’ex’d

I never saw the Stick before the Pris’rs were in the House – Mr Mitton had come before either Pris’rs were in the Tap Room – Mitton in the Bar – Mitton was sober – called for a feed of oats for his Horse –

Wm O’Neill – Sworn

Constable – I don’t recollect the 30th of Oct’r – I recollect the 2’d of this Month – I received a Warr’t & apprehend’d Bruce & Day on suspicion of a Robbery at the Reedy Creek, Wallace’s Station – Searched Bruce first, & then Day – I found a Watch on Day concealed in a rag in his Trowsers I asked Day if he had any Mo’y he said no. I took him behind a Tree & stripped him & I found in a sort of fob. 3–5 pound Notes/3–1 pound/2.1/2 Crowns – & 8 shillings in Silver B’k Notes of Union Bank – I also traced where Bruce had changed a 5 pound Union B’k Note at the Ovens River – The Watch prod’d is the Watch I found – it has been in my possession ever since – I also found at the Gouldburn River where Day changed a 1 pound note –

X’ex’d

I apprehend’d the Pris’rs on a Warr’t on the Reedy Creek – I searched Bruce – found nothing on him – They were apprehend’d on the great Road to Sydney– a little out of the way – I might otherwise have had great difficulty –

X’d

I marked the Notes when I got them –

J W Murray

Comp’s to the Jury – Circumstantial Evidence – Mitton’s Evidence – Only means of show’g my opinion of it – will show it is to be doubted – Mitton had been drinking – Attacked by a Man who sprang – from behind a Tree – I will prove that there are no Trees – Juryman – Trees all the Way – I shall also prove that Mitton was very drunk betw’n the Water Hole & Beveridges – Conversat’n with other individuals – Attorneys Carrington & Clay Circ’s diff’t as to the Pris’rs –

Defence

Wm Wray Sworn

Sub Contract’r for the Mail – Don’t particularly recollect 30th of Oct’r. on a Saturday ab’t 30th of Oct’r I was com’g from Sydney to Kinlochue – I was at Beveridge ¾ of an hour;. I left at five oclock I left it in Comp’y with 3 Men – 3 Men of Mr. Boldens bring’g down Horses – they rode with me into Melbourne – I met two Men – 4 weeks ps’t on Saturday last – 30th – ab’t 2 miles from Beveridges One man was (a) tall Man I swear R’d Bruce the tall Man was one – he & an’r man were walk’g tow’ds Beveridges – I afterw’ds met Mr Mitton – betw’n the Water Hole & Beveridge’s in broad daylight – I was sto’d(stopped) I spoke to Mitton The other Bolden’s men stopped with me all stopped together – I had a Message from his Mitton’s Mistress to tell him to come home with whatever news he had – I stop’d with Mitton but a Minute or two Mitton was able to ride his Horse – I am certain his Saddle had Girths when I met him – He was canter’g when I came up to him – I don’t think Mitton had any Whip or rod in his hand – I think he went away at the same pace I met him – He might have ridden to Beveridges by day light – I rode from where I met Mitton to Kinlochue by day light – I have known Mitton for some time – No Trees near where I met Mitton some little Bushes upon the road within a Mile of Beveridge’s If a man were riding up & another stand’g behind one of those Trees, he co’d be seen – I have seen both Pris’rs before in Melbourne – I knew Day in Melbourne

X’ex’d

I was not postman that day. I was on other business – They were nearer to Beveridges (the two men Pris’rs) when I met them – I did not meet Mitton so near Beveridges as the Pris’rs – I never rode on that Road with Tookey – Pris’rs were ab’t 2 miles from Beveridge’s when I met them – Water Holes 3 Miles of Kinlochue & 4 miles from Beveridges – one of the Pris’rs the low one I think was carry’g a bundle over his Shoulder on a Stick – I can’t fix the time precisely –

John Dight Sworn

I know the Pris’r – Bruce I have known him from his Infancy & have never till now known any thing ags’t him I have always consider’d him a sober steady well behaved man – & I believe this to be (the) Opin’n of the neighbourhood

Verdict
Tr. for life Guilty –

Commentary

Although Willis has written the name ‘Mitton’ it might have been ‘Mutton’.

‘(2 ½ lines crossed through)’ – the words crossed out are ‘ I was telling Mr Beveridge what happened & he said there were two men then there who had arrived shortly before me ’– It is arguable whether Willis was underling or deleting

Erskine Murray represented both prisoners; he was briefed by the Solicitors, Carrington and Clay. When this emerged during the trial Willis expressed surprise that they should act, having acted for Mitton in the licensing case.

The verdict of guilty was given after a retirement of about 5 minutes (Port Phillip Gazette, 1 December, 1841).

Both prisoners are recorded as ‘Free’ in the CRB (see Mullaly pp. 146, 489–90).

29. Transcript of trial of William Macarra for Receiving

Willis Note Book No 12, page 84

Dec 1, 1841

Wm Macarra – Receiv’g Stolen Goods –

Wm Nokes Barton Sworn

I am in the Employm’t of Westby & Co as a Clerk – I recollect a consignment of Pork to Westby & Co – I recollect 28th of Oct’r – the Pork was landed on that Even’g. I saw it on the Wharf after it was landed – 2 Barrells belong’g to Westby & Co branded WN. On the Friday Morn’g I went to look for the two Barrells of Pork & found they were gone – After they were removed from the Wharf I saw the Pork again One Barrell I can identify by the Marks, on the other the Marks are rubbed out – Swears positively as to one barrel be’g the Prop’y of Westby & Co – swears it to be so by the Brand or Mark – On Friday Morn’g I saw this Barrell of Pork in the Pris’r’s House – I saw the Barrel & can identify in Pris’r’s Bakehouse – Back Room –

Not Guilty

Commentary

The prosecution was abandoned when two witnesses, Alexander Cummin and William Rennie, did not appear; they were said to have absconded from the Colony (Port Phillip Gazette, 4 December 1841).

30. Transcript of trial of William Macarra for Larceny

Willis Note Book No 12 Page 85

Dec’r 1,1841

Wm. Macarra – Larceny –

Ja’s Cain Sworn

I am a Merch’t I live in Melbourne 6 Casks of Pork came up for me by the Enmore by a Lighter – on Thursday 28th of Oct’r – I believe they were landed on the Wharf – I did not see them on the Wharf I saw two Barrells marked B in the Pris’r’s Shop – The whole 6 were my property – The Pris’r is a Baker liv’g close to the Wharf at the back of my own Store – I co’d not take them wherever I saw them I wo’d have taken them from the Wharf –

X’ex’d

Cant swear the 2 Barrells are my Prop’y – I never saw the others my Storekeeper told me – I did not see the Pork landed – No concealm’t when I went there I wo’d have let the Pris’r have a Ton of flour had he come the day before –

John Farrell Sworn

I recollect the 29th of Oct’r – I went to Macarra’s House with a Search Warr’t I searched Pris’r made no Objection said it was all correct – I went in & saw two Barrells of Pork in the shop under the counter & two in the Inner Room – an Empty sack thrown over the head of the Barrells – I asked the Pris’r how he came in possession of the Pork? He said he had bought it the previous Night for Twelve Pounds –

X’ex’d

Pris’r showed me the Casks, those under the Counter & the others in the Back Room –

Ja’s Jamieson Sworn

I am a Storekeeper to W Welsh I know the Pris’r I recollect 29th of Oct’r I saw Pork Barrells – landed on the Wharf near the River

Not Guilty –

Commentary

Eskine Murray appeared for the prisoner and argued that the pork was not properly identified (Port Phillip Gazette, 4 December,1841).

The remainder of page 86 is blank.

31. Transcript of trial of Miles Kernes for Forgery

Willis Note Book No 12, page 87

Dec’r 1,1841

Miles Kernes – Forgery

Jacob Marks – Sworn

I know one Aspinall – presented to me on Friday Ev’g by Aspinall – Paper Prod’d I knew the Order to be a Forgery be’g acquainted with Mr Wills signature I told Aspinall that if it were not a Forgery I wo’d pay him the Mo’y –

X’ex’d

Bus’s is carried on as Harris & Marks Levey is a Partner

Tho’s Aspinall Sworn –

I live in Eliz’th Street – I know the Pris’r since last Thursday – I got the Paper prod’d from Pris’r to go out to get it cashed to Messrs Harrris & Marks I went with Marks to Craig & Broadfoot –

X’ex’d

I was going to buy a Shirt with the Cheque – appears to have taken the Cheque under very Suspicious Circ’s –

Alex’r Broadfoot Sworn

Cheque was presented at my House – It is a Forgery

X’d

We have a Cheque drawn in favour of Pris’r by Mr Wills for 25 pounds – a genuine Cheque

Not Guilty

Commentary

Eskine Murray appeared for the prisoner

The words ‘appears to have taken the Cheque under very Suspicious Circ’s’ are more likely to be a comment by Willis rather than an answer by the witness.

32. Transcript of trial of Sandford George Bolden for Shooting with intent to murder

Willis Note Book No 12, page 88

Dec’r 2’d 1841

Sandford George Bolden
Tachier Aborig’l – shooting with intent to Kill –
Plea Not Guilty

Mr Croke

The Pris’r a respectable Settler charged with shoot’g with Intent – Prosecution Instituted at the instance of Assis’t Protector – States the facts from Depos’n & Letter – Shot at the Black & killed him

(Vide Deposit’n & Letter)
Letter – I stated my wish for the fullest investigat’n

Peter Carney Sworn

I am in the Service of Messrs. Bolden as Stockman – I have been 8 yrs in the Country – I recollect the 27th of Oct’r – I recollect seeing the Pris’r on that day I went with him to Muster the Cattle – William Kiernan & Mr. L Bolden & Pris’r accompanied me – I did not see any Aboriginals on the run while we were out – until we had been a good while out – I saw Aboriginals on the run that day – ab’t two or three Miles from the House – We went on to the run to Muster the Cattle. we parted, each took a Separate road – if any of us heard the Whip Crack We were to return – I heard the Whip Crack & returned, when I was return’g I saw some Blacks. I just saw Mr Kiernan com’g up – When the Blacks saw me they parted I can’t say how many there were one of them said Plenty more Blacks One man separated from the Blacks & went towards the Run – there was a black Woman & a grown up boy – This Man (the Black) ran into the Flat The Pris’r was sitting on his Horse which was stand’g in the flat. The Native rushed off the Hill into the flat – Pris’r sang out to the Black to Gigo (go away) – with that the Native stood with his left foot projected & his Eyes fixed on the Pris’r & drew a Weapon – (a sort of Club carved with 2 Edges like a Sword) it probably wo’d cut a Horse’s Head off – the Native was stand’g close to Pris’r’s Horse’s head – Mak’g a Stroke at Pris’r with his Weapon – Pris’r was quite passive – he Heaved himself on the saddle & escaped the blow I don’t think the Pris’r saw the Native till he (Native) rushed down close to him from the Hill.

Here an objection was made as to the way in which Wit’s’s previous deposition was taken & in ans’r to my question

per Cur

I made depositions with regard to this matter before a Magistrate Mr. Sieveright. Capt’n Webster was not present when my deposit’n was taken down – Capt’n Webster on a subsequ’t day asked me if the Deposition was correct – To the best of my opinion Capt’n Webster never read it to me at all – Capt’n Webster did not swear me Mr Sieveright swore me first but I was not sworn when Capt’n Webster asked me if the Deposition was correct – The Pris’n was not to the best of my opin’n present at the begin’g of the Exam’n. he came in tow’ds the End – To the best of my opin’n Mr Sieveright did read it over to me in Pris’r’s Presence & I put my Mark to it. If Pris’r had wished he co’d have asked me any questions

(Allow’d the Crown Prosecutor to refer to the deposition)

Pris’r did not previously to the blow be’g aimed at him by the Native make any rush at him with his Horse. Pris’r did not attack the Native till the second blow was aimed at him by the Native – I sang out to Pris’r to take care or the Native wo’d unhorse him;. When the Native repeated the second Stroke at pris’r Pris’r reined his Horse round to the left & fired a Pistol at the Native – I can’t say that he hit him – ab’t 3 or 4 yards distance – Small double barrell’d Pistol – very short Barrel – Pistol not more than 9 Inches – When Pris’r fired the Pistol the Native stood clapped his hand on his belly & grinned at him & called him a White B – r – then turned about & ran he ran ab’t 100 or 150 yds before he came to a Water Hole – The Native was Naked – I saw no blood – I saw him come out of one Water Hole, & go into an’r I saw smoke from the Pistol – I saw no Wound – no blood – The Native stopp’d in the 1st Water Hole ¼ of an hour or 20 min’s. Pris’r said to me Keep that Man (the Native a Pris’r) the Black kept sing’g out when in the Water Hole – Gigo – plenty more blacks – When the Native said so Pris’r at the Bar told me to keep him, Native, a Pris’r till he return’d – Pris’r went away – he said he was going home – he had only the double barrel Pistol – he told me to keep the Native till he (Pris’r) returned with more fire arms – In the Pris’r’s absence the other StockmanWm Kiernan came up – he had not been up long before the Native came out of the Water Hole – he still had his hand on his belly – he ran into the other water Hole – more than 5 or 6 yards – stopped in for a short time, & then came out & struck at the Stockman – he was going out at the off side of the Water Hole – I was holding the two Horses when Kiernan went round to take the Native as he came out of the Water Hole – The Native struck Kiernan with one of their own Clubs on his temple & on the right Elbow, in the mean While they another native were fighting I was sing’g out to Kiernan that the Native wo’d get the best of it that he Kiernan wo’d never be able to take him & for Kiernan to come to his Horse – With that Pris’r came up & wh’r the Native fell or jumped in to the Water Hole I cant say – The Native was stand’g on a Stump & just as Mr Geo Bolden came up Mr G B fired – The Native jumped into the Water Hole just as the Shot was fired – The Pris’r was 15 or 20 yards from the Native when he fired. The Native was on the opposite side of the Water Hole when Mr Bolden fired – Describes the distance – ab’t 13 yds – from where Wit’s stood Pris’r was behind – I saw smoke when the Pistol was fired – The Pistol was a little longer than the double barrell’d Pistol Immediately After the shot was fired Pris’r & myself rode away –

Per Cur

Wh’t has become of the Native if dead or alive – if dead Where’s the Body – if Alive why not produced?

Mr Croke

The Charge is for intent to Kill & Murder

X’ex’d

I am not aware that the Pistol was loaded – To the best of my opin’n Mr. Bolden was absent ¼ of an hour – I never heard the Native complain dur’g Pris’r’s absence of be’g hit – The other Stockkeeper said to Pris’r after the first Pistol was fired, & before the 2’d for goodness sake go home for more fire Arms to protect us, as this Man says there are so many Blacks on the Run – To the best of my Opin’n I never saw the Native before – there were other Natives with him – I saw an axe on the Run – There was A Woman who had a basket with beef fat – Cattle were killed – Then There had been previous depredations (92a) She was detained & her basket op’d (Evidence objected to by Cro: Pros’r – detention improper)

(The following is written on a small piece of paper (92a) pinned to page 93 but meant for insertion in page 92)
(a) I said that the owner, Lessee, or person pay’g for a licence for a run had a right to use every lawful means for recovering from any person wh’r White or Black any of his Property attempted to be illegally carried away – and further there being no reservation in the grant, lease Licence from Gov’t in favor of the Aborigines, the possessor had also a right by all lawful means to turn off any person wh’r White or Black who sho’d trespass on his Run – This was not like Bonjon’s Case, it was a case of Aggression between Blacks & Whites in which the C’t had clearly Jurisdiction – (b)

X’ex’n cont’d

Wit’s Describes how Pris’r fired the first shot – I first said stand clear or the Man will unhorse you – I cant say Pris’r took aim (1st shot) at all – describes Pris’r’s position in his saddle & on Horse back– Kiernan & the Native were 5 or 10 Mins. fighting – I am quite sure it was the same Native – Pris’r co’d not come within 3 or 4 yards of the Water Hole on acc’t of the gr’d – The Native must have seen Pris’r gallop’g up before he jumped into the Water Hole – This occurring on Wednesday – the 1st Deposition was made on the Friday following – When I made my Deposition I did not know that the Man was killed –

per jury

It is common to frighten the Natives by snapping, or present’g fire Arms –

per Cur

The Native had three or 4 Weapons ab’t him when he struck at Pris’r

Wm Kiernan Sworn

I am Stockkeeper in the Employm’t of Messrs Bolden at their Station – I recollect 27th of Oct’r perfectly well – I went on my bus’s in getting in Mr B’s Cattle – I endeavoured to get them in I saw three Natives – a Man, Woman & a Boy – I sang out “Gigo” that is, go away – they said they were going to Mr Sieveright’s ab’t 11 miles off – I did not attempt to drive them off the run

I consid’d Pris’r in hear’g – The Blacks said Mr Sieveright “Wiggell Wiggel Wiggle you” (that is, You should be hung ) In the course of 5 Min’s last Wit’s hear’g me talk to the Natives came to me With that the Blacks came down a small bit of a hill into a flat – Mr. L’l B & Pris’r were in the flat. I sing out to both that the Woman’s Net on her back was full of fat – I ex’d the bag & took the fat out of it – Pris’r & the Black Man dur’g the time I was show’g the fat to Mr Lemmuel had some Words – I co’d not hear exactly what the Words were – I was engaged with the Woman – I turned round – saw Pris’r engaged with the Native – the Native try’g to strike him with his Club – I was ab’t 40 or 50 yds off. I did not see Pris’r riding down this Black or gallop’g his Horse – I heard a Pistol Shot – at the time I heard the Shot & turned round – I took the Native to be within 4 or 5 yds of Pris’r I saw smoke after the Pistol was fired I saw the Black going to the Water Hole – The Black did not Walk as if wound’d He ran as hard as he co’d – Black was Naked – The Native went legs foremost into the Water Hole I saw him. I might be 5 or 10 min’s exam’g the basket I frequently looked as I expected a reinforcement of Blacks – Pris’r was on the flat nearer to the River than I was – 40 or 50 yds from where Pris’r was when he fired to the River – Pris’r came down to the Water Hole with me when Native sprang in & got hold of a boy & said “plenty more Blacks fellows come – bally directly – I beg’d Pris’r to go home & get more Fire Arms – The Pistol Pris’r shot with the first time was a double barrell’d Pistol – The Barrel ab’t 4 Inches long – Pris’r went home for fire Arms I was try’g to keep the Black fellow (This endeavour to detain native ??

(B) here inserted is written sideways on the MS, top of page 94)

B per Cur

That if the Native was in comp’y with the Woman who had stolen fat in her possession, I thought the Wit’s was justified in endeavouring to detain the party.

Pris’r returned – during his Absence the Native came out of the Water Hole to me – I let him out quietly – I just Walked up to the Native when he struck at me with his Club – My Master told me to keep the Native till he came back – At the time Pris’r returned the Native was in hand–hold with me – I thought to get a hold of his Club – he flung one of his weapons at me before he got out of the Water Hole – As soon as he saw the Pris’r gallop’g up Native ran into the Water hole – The first thing I heard was a Pistol fired The Native got into the Water Hole just at the time the Pistol was fired – The native was encountered with me when Pris’r came up – Three years here – I got sev’l blows from the native – one on my forehead I bled sev’l on the Arms with the Club – After the 2’d Shot fired Pris’r & I immediately went away – I was at the Water Hole afterw’ds sev’l times – I go that way about my Bus’s

X’d

I do not know the Natives Name, the same man I found killing a beast on the 19th of this Month – I saw him sev’l times on the run before – I cant swear there was anything in the Pistol that might have caused death – There might have been such a thing as a Pistol discharged with’t Ball or Shot to frighten the natives – It frequently happens – Pris’r was but 25 yds from Native when first I saw him after he fired – 2nd Shot – he was in full gallop – At the moment the 2’d Pistol was fired the Black was in the act of attack’g me –

C W Sieveright Esq Sworn

Assis’t Pro’r of Aborigines in the Western District – I am a J.P. – I know Pris’r – he lives 17or 18 miles from me – I took the depositions in this Case – they were taken in the Presence of the Pris’r on Friday 29th of Oct’r they were read over to the Witn’s after they were taken Titles also from begin’g to End – I knew Tachier – I was perfectly acquainted with his person – I have no doubt he is one of the tribe over which I have Superintendence – That is the name by which he is generally known – I have not seen him tho’ I have made much inquiry for him from his own Tribe in par’lar & from sev’l other Tribes – I saw him ab’t a fortnight before the dates to which I have referred – It is impossible that he can be ab’t the Bush – I have twice searched for him from Sun Rise to Sun Set – He may be still alive

(the following is written across the MS on the top left of page 96)

C. I asked him Wit’s reconciled this with his hearing of the depositions which were relative to the death of an aboriginal native

I saw Pris’r after the Commiss’g of the Act imputed to him – On the 28 of Oct’r I went to Mr Bolden’s Stat’n – I was directed where I sho’d find Mr Geo Bolden on join’g him at his Stock y’d I made myself known to him after ascertain’g that his Name was Bolden, I said I was sorry to learn that there had been collision betw’n some of his people & the Natives – He said No. No Collision – I replied “are you not aware of it?” He said “Are the bodies found” I answered I believed so Witness now states he believed ? from the Report of an Aboriginal Boy – wholly a Savage – He co’d speak English partially When I said I believed the bodies were found Pris’r said “I have no hesitation in say’g it was I who shot the native but I assure you it was in self defence & I intended to have inform’d you of the Case as soon as I possibly could – This was not said, till I had said the Bodies were found – He then said he was engaged in giving over the Cattle which he had lately sold, this was the reason he had not informed me of the Circ’e already;. I observed Pris’r was under consid’le agitation – I advised him to say nothing more at present but to defer his Statem’t till the morrow when I sho’d return & receive it from him – My reason for doing so was seeing that he was under agitat’n he might inadvertently make a statem’t that might

Criminate himself – I held out no inducem’t to the Pris’r to confess – I did take steps to ascertain wh’r the story of the Aboriginal boy was true before I went to the Pris’r – I traced in comp’y with six Natives & a Constable footsteps with shoes to a Water Hole & where there were marks of Horses – I was engaged in this when a Boy made his appearance a Boy on Horse back – In consequence of this Boy’s life be’g in danger from the natives with me I gave up the search & went to the Pris’r orse back – Horse

Per Cur

The Prison’s confession was under the false impression from Wit’s Statement that the bodies were found – which was not the case.

I said I wo’d reserve the point, but I did not consider the Confession admissable .

X’ex’d

The existence of this Man was improbable The inducement to state the Native’s name was Tachier was the Statement of the Aboriginal – boy ab’t 10 yrs old – Pris’r’s Statement was freely & voluntarily made

“The Pris’r afterw’ds said had he known that the bodies had not been found, he wo’d not have made that Statem’t”

The Deposition was made previous to the bodies not hav’g been found been made known – Pris’r said “I believe I wo’d not have made the Statem’t ?” I can’t say I fully understand the language of these Natives – I made a subsequent search for the Bodies they have not been found – The confession made by Pris’r made no ment’n of the Woman” Therefore I did not investigate the Matter – I heard the Woman was alive – It most usual for Natives after committ’g depredations to abscond – After Collisions betw’n themselves the Natives Abscond – It sometimes happens after collision with the Settlers that the Natives abscond for two or three Weeks – The Woman has not returned – This Man belonged to the Connawa Tribe – ab’t 15 Miles from the place of the collision – The Water Hole has been searched – not dragged Every facility afforded by the Pris’r & his friends for the fullest investigation –

Mr Barry addressed the Jury in an able Speech
Not Guilty

I strongly censured Mr Sieveright’s conduct for not stat’g to the Pris’r that the Bodies in fact had not been found especially after the Woman was known to be alive, & also for bring’g forward such a Charge as this which rested solely as regard’g the Identity of Tachier on the Hearsay Evid’ce of a Savage Boy of 9 or 10 yrs of Age – I told the Crown Prosecutor there was no Evidence that I co’d ?receive to show that an aborig’l named Tachier had been shot at & alluded to the recent case of the Earl of Cardigan in the H of L’ds

The learned Crown Prosecuter insisted that the Evid’ce of Identity of Tachier which at the utmost was merely the report obt’d by Sieveright from the Savage Boy of ab’t 10 yrs old who but partially understood English was suff’t – I told the Jury that the Informat’n co’d not on that gro’d be sust’d that in fact there was no proof of the main allegation that Tatchrer was Shot at & that they must acquit the Pris’r but even had it been otherwise the Circ’s of the case were such as in my opin’n wo’d most probably have induced them to acquit the Pris’r –

Mr Croke persist’d that the Evid’ce was suff’t & that he wo’d file a thousand Informat’ns on the same Evidence – I said that if so I must reprehend your Conduct in improperly wast’g the time of the Public & putt’g the Gov’r to unnecessary Expence –

The Jury immediately acquitted the Pris’r

Commentary

James Croke prosecuted and Redmond Barry defended Bolden.

Some Aborigines had reported to Charles Seivwright, the assistant protector, that a boy named Bang–il–bang had told them of the shooting of a male and a female Aborigines who had later died. His enquiries led him to the station of Bolden who at first denied any involvement but, when Seivwright told him the bodies had been found, Bolden said he had shot them in self defence. On the following day Bolden gave Seivwright a written statement setting out how he was attacked by a male Aborigine whom he then fired at and the Aborigine ran off. Bolden went to a hut and got more firearms and when he returned he saw the same Aborigine attacking his stockman, William Kiernan. He again fired at him and the Aborigine again ran off. Seivwright later conducted a committal proceeding but some aspects of how he conducted it raised concerns about its legality during Carney’s evidence. Willis did allow Croke to refer to these depositions.

During Barry’s cross–examination of Carney he raised some issue about ‘previous depredations’ and apparently this led Croke to take some objection to such evidence and in dealing with this issue Willis made some reference to the rights of the landholder. Later in the attachment ‘(a)’ he noted what he had said.

When Seivwright was giving evidence he swore about his previous contact with the Aborigine, whom he knew as Tachier, (the name is given as Totkeire or Tatkier in other contemporary documents) and of his subsequent searches for him. Apparently, Willis raised some concerns whether it was properly proved that the victim’s name was Tachier and made some reference to the decision of the House of Lords in the Earl of Cardigan’s case which decided that the prosecution must strictly prove that the name of the victim was that alleged in the Information.

Then Seivwright gave evidence about his contact with Bolden and receiving his statement (which was the ‘letter’ to which Croke had referred in his opening). Barry the objected to this evidence being received as Seivwright had misled Bolden about the discovery of the bodies. Willis rejected this evidence.

In his final address to the jury Barry referred to the Earl of Cardigan’s case and to the law that a master could act in defence of his servants.

In his address, Croke asserted that he could frame the Information the way he had done so in this case’ Willis disagreed with him and directed the jury to acquit Bolden.

Willis subsequently sent La Trobe some extracts of his notes taken during this trial and it may be that he made the alterations and additions noted above as an indication to his clerk as to what he wanted to be transcribed (See Mullaly pp. 92, 369–75)

33. Transcript of Plea of Mary James

Willis Note Book No 12 Page 99

Dec’r 4th [1841]

Mary James – alias Mary Vallance –
Pleads Guilty
2 yrs Impris’t

Commentary

At the top of page 99 is the following brief insertion:– “See Mary James on 29 November 1841”.

This was a charge of Larceny of a handkerchief from Simeon’s shop.

Her plea for mercy was based on drunkenness and Willis said that was an aggravation; he noted she was FS and probably drunkenness had brought her to this country. She enquired as to what would happen to her 3½ year old child and Willis said it would be sent back to her father in England (Port Phillip Gazette 4 December 1841).

The official records are that she was sentenced to three years imprisonment and that arrangements were made that she be sent to the Female Factory at Parramatta (CRB; VPRS Series 19 Unit 22).

34. Transcript of trial of Thomas Emmerson Chandler – Stealing in a dwelling house and putting in fear

Willis Note Book No 12 Page 100

Dec’r 24 1841

Tho’s Emmerson Chandler
Steal’g in a Dwelling house & putt’g in fear –

John Ley the Elder Sworn

I am Tapster for Ja’s Shaw of Flinders Lane his House is there – I remember a Week or 10 days ago putt’g Mo’y in the Till – It was my own property – This day fortnight – It was my own Mo’y I put it in the till to give change to Customers – I bro’t it from my own House – ab’t ¼ past two – I am confid’t I put it in the Till. I exam’d the till after my return from the Steamer ab’t 4 oclock The Mo’y was gone all but 5 silver Sixpences –

John Ley the Yr

Son to last Wit’s – I was at Shaw’s House the Bricklayers’ Arms this day Fortnight – I saw the Pris’r there betw’n 3 & 4 oclock that afternoon – There was 25s in Silver in the Till – I saw it in the Till – The till was shut – no lock & key to it – The Pris’r & an’r man came in & call’d for a Pint of Ale & after they had drank it that Man (Pris’r positive it was Pris’r) came & took hold of my braces & pretended as if he were wrestling with me – he knocked me down & put his hand over my mouth & nose & Stopp’d my breath – an’r man went to the Till while I was down & robbed the Till – the other man took the Mo’y the Pris’r held me down till the other man went away & then went out after him – I was very much frightened – I swear positively the Pris’r held me down – on Sunday morning I went with Neil the Constable & found the Pris’r in bed with an’r man in a Brickmaker’s Hut this side (of) the Water –

X’d

I remember two men com’g in this day fortnight & a Constable – the men off’d the constable a glass – Pris’r was with the man that off’d the Constable –

per Juryman

Never saw the Pris’r before Saturday week last perfectly positive Pris’r is the man – not dressed as today – He had on a blue jacket a small striped shirt & a Waistcoat I saw hang’g in the Hut – I sho’d know the Constable that came in with the men were I to see him –

Defence

I am Innocent – Witness is to prove my Innocence –

Ley Jnr

Cha’s Swindle – that is the man who came with the men & to whom one off’d a glass of liquor

Cha’s Swindle Sworn

I saw two Men on Thursday fortnight in Shaw’s Tap – The Pris’r was not one of the Men –

X’ex’d

There were four men – The Pris’r might have been one of the four – There were two men in blue jackets – I have seen the Pris’r before –

Ley Jun’r

Four men in the Tap – only two when I was knocked down – The Man that askd the Constable to drink had a blue Jacket –

George Scarborough Sworn

Pound Keeper of Melbourne Pris’r was at my place ab’t 3 oclock – he was there a second time ab’t 4 oclock –

Guilty –
Tr. 15 yrs

Commentary

Chandler was FS and in August 1841 he had petitioned La Trobe for admission to hospital as he had a severe rheumatic affliction in both legs and was incapacitated from bodily labour. La Trobe referred the case to Cussen who reported that he knew Chandler to be of bad character and his disease was brought on by own misconduct and was not rheumatism (VPRS Series 19 Unit 18).

A ‘public house’ was a ‘dwelling–house’ in law.

In his defence Chandler tried to set up an alibi.

35. Transcript of trial of George Say for Larceny

Willis Note Book No 12 Page 103

Dec’r [no date, 1841]

George Say– Larceny –
Presumptive Evidence – Goods found in Pris’r’s possession – 2 Deacon. 2 Dough 253

John Waller Sworn

I am a Constable attached to the Melbourne Police – I know the Pris’r I recollect the 12th of Nov’r. I visited his House on that day – In consequence of Information I received on my arrival at the House I saw the Pris’r com’g out of his bed Room & close behind him was his Wife – She had carry’g before her (Box prod’d) & was going in the direction tow’ds the Back p’t of the Prem’s. I immediately followed her – she went to the door of an outhouse in the back y’d she turned Round & perceived me close behind her & she immediately returned & placed the box inside her Bed Room door I then laid hold of the Box & called for the Chief Constable who was in the House – in the course of two or three Min’s Pris’r produced this Key – (Key prod’d) I unlocked the Box in the Pris’r’s presence & I found it cont’d Ribbands, Silks, & Lace, (prod’d) same to the best of my belief – Since in the possession of the Chief Constable I found other Prop’y now prod’d Lace etc in Pris’s’rs Bed Room – I took these things out & put them in the Box again – Pris’r told me he had purchased from a Man of the name of Jackson & given him 25 pounds for them – he did not say when – He said the Mo’y he had paid was 5–5 pound Notes, he said there was no other person besides his Wife & himself & that he had no receipt to show for them – Five Boxes & a Basket –

X’d

Box locked originally when Mrs Say had it – Say gave the Key quite voluntarily – he made no resistance – he did not hesitate to tell me where he got the Property – No attempt to conceal those Boxes – one had a lid – the others no lids – stand’g at the foot of the Bed –

Peter Ingles – Sworn

Merch’t in Melbourne – 16 Mo’s in the Colony – previously in Glasgow as Silk Mercer & Draper – I bro’t out goods to this Country – The goods prod’d were sent out to me – Swears positively to some from the Invoice – I was the consignee I p’d for them – Identifies other property – Prop’y worth 70 to 80 pounds – I sho’d give 70 pounds for them 25 pounds wo’d be a very great bargain – This Lot is worth more Mo’y again at the present time – Swears positively that some of the Prop’y is mine –

X’d

I have sold the Prop’y in Sept’r last – I was here 16 Mo’s before the goods arrival –

R’ex’d

I consider’d that in the begin’g of Sept’r I was entitled to receive this Prop’y from the Capt’n – I compelled the Capt’n to pay me for it because he did not deliver it –

By Mr Murray

The House of Ja’s Fiskins Ship’d those goods – p’t belong’g to myself be’g p’d for by my agent – p’t a Consignm’t since p’d for – I recognise the goods partly from the Invoice & partly from my Private Mark – which the Glasgow House retains – Goods in Basket worth 20 or 25 pounds – Some of the goods prod’d not identified by Ingles – The Lot might vary from 100 pounds to 100 pence in price – Some of the Ribbands appear to have been in a Retail Shop Fiskin & Co. Wholesale & Retail – I received Bill of Lad’g & was inf’d the goods were on Board – The Goods were p’d for by the Capt’n It was my Private Mark, it is now the Private Mark of Fiskin & Co They are not in the habit of Shipp’g goods – I am satisfied the parcel never ought to have come to any other House

Ja’s Buchanan Sworn

Manager for Dunlop & Co I recollect the arrival of the Brilliant – We never had the goods in our Possession I know the Pris’r

Not Guilty

Commentary

‘2 Deacon. 2 Dough 253’ – these notes are probably references to reported cases in the nominate reports – a presumption of guilt could arise from recent possession of stolen goods.

Say was defended by Erskine Murray

Willis told the jury there was no evidence to prove that the goods were the property of party named as the owner in the Information and directed an acquittal (Port Phillip Gazette 4 December 1841)

Page 106 is blank.

The only item on page 107 is as follows:–???

36. Transcript of Plea of Patrick Kelly for Horse Stealing

Willis Note Book No 12 Page 107

Dec 15, 1841

Patrick Kelly – Horse Stealing –
Pleads Guilty –

Commentary

Willis sentenced Kelly to transportation for life. This sentence was illegal (see George Kilpatrick tried on 30 November 1841).

37. Transcript of Trial of Rob’t Temmy Jemmy Small Boy, Jack Napoleon Tunninerpareway, Lallah Rookh Truganina, Fanny Waterpoordeyer and Maria Matilda Nallepolemmer (?Nattepoleninner) for Murder

Willis Note Book No 12 Page 108

Dec’r 20th 1841

Rob’t Temmy Jemmy Small Boy )
Jack Napoleon Tunninerpareway )
Lallah Rookh Truganina )
Fanny Waterpoordeyer )
Maria Matilda Nallepolemmer (?Nattepoleninner)

Murder of Wm Cook & a person known as Yankee but by no other Name

Mr Barry Challenges the Array – Natives of V.D’sL’d

Local Act 4.Wm.4 c 12 – Sect’n –
2’d Wm.4 British Subjects –
Mr Croke Inconvenienced
St. 9. Geo 4. c 83 – Sect’n 24

Mr Barry objected that accord’g to the Local Act 4 Wm. 4 No. 12 Sect’n 6 a challenge to the Array in consequence of the Sheriff not having return’d a Jury de medietate sho’d be allowed & a new veneire returnable in 4 days sho’d be given.

Croke contra – Mr. Justice Burton’s Judgm’t in Mejaril & an’r & ? Inconvenience – I over ruled Mr Barry reserving the Points for the cons’on of the Gov’r & Council, in case of Verdict ag’st Pris’rs

1st C’t Murder (Smallboy) by shoot’g Cook & Yankee
rest of Pris’rs aid’g & abett’g
2’d C’t All Pris’rs Murder by strik’g beat’g & Kick’g dece’d –

Mr Croke –

Preface – on 26th of Sept’r Whalers stat’n at Lady’s Bay. on 6th of Oct’r arrived at Watson’s at Cape Patterson Station unoccupied – Cook & Yankee – hav’g arrived at Watson’s Upper Stat’n – two Whalers went out to see if they co’d find owners of Stat’n – heard two Shots in quick succession – others went after their Companions – return’d with’t find’g them – after 1 ½ or 2 hours Watson & two Serv’ts belong’g to Massey & Anderson arrived at the highest Station & were surprized to find Whalers in the Hut (two missing) 3 Whalers told that they had heard the Shots – Watson acquainted with Locality & knew the Pris’rs were ready there, said it must be the blacks – Massey’s Serv’t Patrick hav’g heard that the two Shots had been fired said he wo’d go out & look for the Companions of the 3 Whalers (i.e. the two Miss’g ones) returned & said he had found 2 persons dead on the beach at Cape Patterson – the Whole Party then sallied forth Watson his two Companions Massey’s Serv’t Patrick & an’r by whom they were conducted & found Patrick’s narrative too true – Some persons were seen in the neighbourhood – This Party interr’d the bodies found on the beach – Tho’s Robins – one of the Whalers – Mr Watson – Mr Powlett – Wm Johnson – Mich’l Solomon to whom one of the Party confessed

Tho’s Robins – Sworn –

I was Whaling at Lady’s Bay in Sept’r last. I left it on the 26th of Sept’r. 8 of us left it – I recollect the 6th of Oct’r arriv’g at the Coalmines – 6 of us – we left the other two at the River because they co’d not swim – We arrived at Cape Patterson – Huts there – no one in the Huts – I was only in the first Hut close to the beach 50 yards from high Water Mark – Cook was with me – Yankee was with us – never knew him called by any other name – Cook & Yankee are dead I helped to bury them I saw them dead – I heard two shots fired as close tog’r as they co’d be fired when I was (in) the Hut I saw 4 people on the Hill – I co’d not distinguish then whether White or Black Men or Women – They had two Guns & boys with them – I saw them about a Minute after the Shots were fired – Three out of the four went down to the Beach & one stood on the Hill – I did not see a Gun in the hand of the Man on the Hill – Nor did I see Guns in the hands of those on the Beach – I saw 2 Guns in the hands of the Party before they came down from the Hill – I co’d not see the beach where they went to nor the Guns – after they left the rise – There was a sand Hummock on that p’t of the beach – Evans was of the Party – the others there with me were Howard & Ned – The three persons that went to the beach returned to the Hill & the other one went down – I co’d not discern if there was a female of the Party – These persons went away out of sight & I went into the Hut – I co’d not tell wh’r they were black or White – While in the Hut Mr Watson & one or two of Mr. Anderson’s Men came there – In consequence of Information we gave them our Mate was gone & we had heard two shots fired – Paddy went out in Search of our companions – Paddy returned – We all went out & found the two bodies between 2 & 300 yards from the Hut – Yankee was shot thro’ one ear & out of the other There was a hole in each Ear – he had been bleeding in each Ear blood upon the sand & on his Clothes – No other marks of Violence on Yankee – he was quite dead – not to say cold – Cook had blood issuing from his side Cook’s head looked as if it had been knocked about with Sticks 4 pieces of Stick lay near the body Thick as my Wrist – 2 Sticks produced – Cook’s features were not so disfigured but that I knew him – I am sure it was Cook – They were buried at a place above high Water Mark in the Sand on a flat ab’t 4 feet from where the Water beats – They were buried ab’t 2 or 300 yards from the Hut –

X’ed

4 of us in the Hut when we heard the Shots fired first – There was Howard & Ned & this other man that came with Mr Watson when he came into the Hut – I was not with Evans then – he had left the Hut – Yankee & Cook had been in my Comp’y five Months & ½. We left our Station from short provisions – Always on good terms with each other – I swear Yankee was dead – I don’t think he co’d be recovered – His Arm was warm when I pulled up his Shirt – Blood was flow’g from Cook’s Side – Four people betw’n 2 & 300 yds off when I went out & saw them the bodies I can’t say that the Dogs were such as the Natives have – I cant say wh’r they were Men or Women White or Black – they had some thing that looked like Guns in their hands –

per juryman –

Bodies were 30 yds from the Hill on which I first saw these persons –

Wm Watson Sworn

I am a Miner on the 6th of Oct’r last I went to the higher Station at Cape Patterson with two of Massey & Anderson’s Men – First when I came to the place I saw a Man with a Red Shirt which I thought to be one of the natives – I found it to be a Whaler who accompanied me to our hut where we found some (3) of his Companions I did not fire a shot – A Whaler & one of Andersons Men went out in search of the Whalers who were miss’g – Patrick returned & I went & found two bodies of White Men both dead – nine of us went – Robins was one – I saw blacks that Eve’g. I first saw 4 – I then saw three nearly the Even’g – Ab’t 200 yards off, when I first saw them I arrived at Cape Patterson 15 or 16 of May last – I never saw any blacks but those Isaw that Evening – I never saw any but the Pris’rs at the Bar, they stopp’d besides us three or four days from a Wednesday till Saturday when they destroyed my place – Oct’r 2nd they destroyed my place – they had Dogs – What they had, had the appearance of Guns – The dece’d said to be cook was a Sydney Native – was ly’g on his back near the beach Shot thro’ the side – a hole right thro’ perforated the body & came out at the back – it appeared to be a Gun Shot Wound, & his head was dreafully cut with Clubs or Sticks – the Back p’t of the Head was the Worst the features were not disfigured at all – Yankee appeared to have been shot right thro one Ear & out of the other & his head also dreadfully cut at the back with Sticks – I saw the Sticks produced, on the beach ly’g close by the side of the heads of the dece’d – The bodies were buried betw’n 50 or 60 yards above high Water Mark in a Gulley of Sand. The Sand was elevated ab’t 40 feet from the level of the Sea – Robins was with me – I saw 4 Blacks when we were burying the Bodies – I co’d not distinguish them – I am sure they were Blacks wh’r Men or Women I co’d not tell – I saw some Dogs – One Dog a Stock Dog with a Short tail – I saw that Dog different times before with the Natives – On a Friday Even’g the 1st of Oct’r – This Dog belong’d to a Station several miles off – 60 Miles – I am sure that this Dog I saw with the Natives when we were interr’g the bodies was the Dog I saw with them on the 1st of Oct’r –

X’ex’d

I swear I never saw any other Blacks. The Country open for Miles – low scrub 6 or 8 Inches high – I did not know any of these Whalers – I never saw any triangular Weapon with these Natives – The Wound on Cook might have been inflicted with such a Weapon – I sho’d think the wound in Yankees Ears co’d not – Yankee was not cold but he was completely dead – lifeless – I cannot Identify these people as being present on the occasion In dress & appearance the people I saw were the same as the Pris’rs – I first saw the Whalers at the Upper Stat’n – ab’t 3 to 400 yds from where the Bodies were found

Wm. Johnson Sworn

I belong to the Border Police – Corp’l – I recollect the 17 of last Month – I was at Western Port on that day – on the way from Massey & Anderson’s Station – I went in search of some Natives under the Command of Mr Powlett – Nine Police commanded by Mr Powlett & 8 Soldiers command’d by Lt Rawson 28th Reg’t – besides 10 or 12 Settlers’ Men on the 20th of Nov’r I saw the Pris’rs – the 5 – I only know the Names of the Men and one of the Lubras Truganini – Lallah Rook – The Men ans’d to the Names of Bob & Jack, (points them out) – I apprehend’d Bob – The Lubras were not apprehend’d in my presence Jack gave himself up to me afterwards – I found one of them in the Scrub, Bob, When they were apprehend’d they were Naked – nothing but Shirts on – I found Arms where they had been sleep’g – We found them apparently Sleep’g – 2 double Barrell’d Guns. One Single Gun & a brace of Pistols – The first question put to the Male Pris’rs after they were taken was Where they had buried the Whalers? They first proposed to take us to the place where the Whalers were buried, & Mr Powlett then said Where are they buried? The Pris’rs were all together at a Mia Mia The Men were Handcuffed – The two Men & Truganini took us to the place – We saw a rise in the sand – & they said that was where the Whalers were lying We open’d the Graves & found the bodies of two White Men – We did not search for the Wounds – One had no Waistcoat on – The two black Men Bob & Jack said they had Shot the Whalers – Mr Powlett asked them wh’t made them do so. Bob said he thought it was Mr Watson – Truganini said one of the Men had beaten the brains out of one of the Men that was Shot – They all spoke English The Grave was 30 or 40 yds from the Water Edge & on a place like a Table of Sand drifted from the high Water Mark

X’ex’d

No person accompanied me who had been at the Station before – Truganini stated that she was on the high Bank when they were committ’g the Depredations – Truganini said she was frighten’d at seeing the Men Struggling & hid herself – Only the Police with us – No one there who co’d swear to the Bodies – The Pris’rs never varied in their Confession or gave any other Statem’ts relative to the alleged Murder – Bob said Jack fired the first Shot & threatened to shoot him Bob also if he did not fire at the Whalers – Truganini said the other Women were with her at the time the Whalers were Shot –

F A Powlett Esq’re Sworn

Commiss’r of Crown Lands, recollects 20th of Nov’r last – I was at Western Port at that day – by Order of H H the Superind’t for the purpose of Apprehend’g some Natives who were out in the Bush with Arms – On the first occasions I acted as a Magistrate & on my General Instructions & on the second occasion from communications I had with H H the Superintend’t & the Chief Prot’r of Aborigines – I had my border Police – some Mounted Police who by my general Instruct’ns I co’d employ when necessary & 8 Soldiers of the 28th Reg’t under my direction as a Magistrate commanded by Ensign Rawson. I had stated that from the nature of the Country the larger the force the better & H H the Superintend’t said that if requisite I might call in some of the Military – On the Morn’g of the 28th of Nov’r I captured the Pris’rs with the whole of this force between 5 & 6 oclock – The two Men & three Women – After the Pris’rs were captured they appeared perfecfly cool – asked for breakfast – smoked their Pipes Bob seemed terrified slightly for a few Min’s – Truganini said (Mr Tho’s was also present & 6 or 7 Natives) when I asked her Where the Whalers were buried – the Men who had been killed on the beach some time previous – she pointed to the spot She conducted me to the place Pris’rs Bob & Jack accompanied us ab’t 6 miles from where they were taken – They were a little in Advance the Men handcuffed. Truganini pointed out the grave – The grave was opened & I can distinctly state there was one body I think there were two but cannot swear – very Offensive not all uncovered – I turned round to the Pris’rs af’r Truganini said they had done it I turned round to the Men & said Wh’t co’d make you do it? The Men seemed to accuse each other of fir’g the first Shot they also said they took them for the Miners – I saw some Sticks about the place– I looked at the Sticks very particularly I did not observe any Stains on the Sticks I saw some on other Sticks Truganini said one of the Men was not killed but the death was completed by knocking him ab’t with Sticks. Only Truganina with me –

X’ex’d

I will not take upon myself to state the sexes of the individuals interred, or by what meansd they came to their death – Truganina said the Women cried – expressed their regret – The grave was ab’t 4 or 5 yards up a Sandy bank with a higher Bank above it – & fully 200 yds from a Hut near there –

per Cur

G. A. Robinson Esq’re Sworn

Chief Protector of Aborigines

I know the Pris’rs have know them ab’t 8 or 9 Yrs – they accompanied me from V D L’d to Flinders Island – & thence here – I have seen the Rep’t of the Leg. Council Committee on Aborigines – I was ex’d the Rep’t is correct – The Pris’rs were my attend’ts dur’g the whole of my Journeys in V D L’d I endeavoured to civilize them – they have a basic a knowledge of the existence of Sup. Being & know right from Wrong. They have a plurality of Wives – The Women are in great subjection to the Men they live with – ample Reseves have been set apart for the Aborigines of this District I think if it were practicable it wo’d be beneficial to confine the Natives & the Settlers to the Limits assigned to each by Gov’t if practicable – Any plan for the settlem’t of the Natives wo’d be considerably aided by the concurrence of the respectable Settlers – I had permission to remove the Pris’rs to this District – I stated in a letter addressed (to) the (G’mt?) before the Committee of Leg. Council that I wished the V.D.L. aborigines to be taken from Flinders Island & settled in some fixed abode in this District – If that had been done this occurrence I think wo’d not have taken place–

per Mr Barry

I know that Rob’t undertook with my concurrence a journey to Adelaide in the Service of Mr Alfred Langhorne – his Services were consid’d of the highest order & his Character excellent –

Rob’t has been in my Service betw’n 12 & 13 Yrs Was quite a lad when I obtained him – He accomp’d me on my first journey to Port Davy – On Acc’t of his youth I sent him back at that period – In all my subsequent Journeys he was with me – conducted himself entirely to my satisfaction – His conduct was always respectable & I never knew (him) guilty of any dishonest Act & he was always remarkably industriou s – He was a Native of the N’th East Quarter of V.D.L’d Cape Portland – Jack I obtained at Cape Grim at the N’th West Extremity of V D’s Land – He had associated with the Sealers before I obtained him – he was with me up to my last Expedit’n up to Sept’r last – And his Conduct also has been most satisfactory – Truganini had associated with White persons before I obtained her She is a Native of Brunee Island – & she also has accompanied me in all my Journeys She is the Wife of Worade? not of either of the Pris’rs – I am indebted to that Woman for the preservat’n of my life on one occasion at Arthur’s River – She swam & took me across – I have never found these persons wanting in humanity. The other two Women were emancipated from the Sealers in Bass’s Straits (Fanny & Maria) & lived with me till Sept’r last – The Women are not allowed by the Men to act accord’g to their own Will – They are in entire subjection to the Men, in absolute thraldom –

Mr Barry

Peculiar situation

however domesticated by transient domestication – Circumstantial Evidence –

Circumstantial Evid’ce – Circum’l confession – Kilpatrick – stay’g to take Tea before going to inter the bodies – presumption of an Affray – 4 Sticks Presumpt’n in Civil & Crim’l cases

Women – More success plan of operat’n with regard to Aborigines –

R’t Guilty
Jack Guilty
Women Not Guilty

Recommend’d for Mercy )
on Acc’t of general Good Character )
& the peculiar Circ’s under which )
they are placed –––––––––––––––––––––––––– )

Mr Croke wished the women to be discharged
Sentence of Death passed on the Men Dec’r 22’d

Commentary

These prisoners were Aborigines from VDL who had accompanied George Augustus Robinson to the Port Phillip District when he was appointed as Protector of Aborigines in 1839. Questions had been raised as to whether they were ‘one family’ and about their activies out of Melbourne when they were not accompanying Robinson on his official travels (VPRS 16 Unit 1, p. 54).

In October 1841 La Trobe was informed that some Aborigines had killed some whalers in the Western Port area and an investigation commenced.

On Wednesday 15 December 1841, Willis delivered a speech to the jury panel to be impartial in trials involving Aborigines; this was panel from which the jury was picked for this trial (Port Phillip Gazette, 18 December 1841).

Prior to the trial James Croke had enquired of Robinson as to the names of these Aborigines and those listed by Willis in his Case Book are presumably taken from the Information made by Croke.

Lalla Rookh was the title of a poem, written in 1817, by the Irish poet Thomas Moore (1779–1852).

James Croke prosecuted and the prisoners were defended by Redmond Barry who challenged the jury panel as being inappropriate when foreigners such as natives of VDL were being tried. He was claiming that they were entitled to a jury de medietate linguae – a jury which was one half aliens (from the country or continent from which the accused came) and the other half local citizens. Willis rejected this application.

In his final address Barry referred to the law relating to ‘Circumstancial evidence’ – juries has to be cautious in using such evidence and to the ‘Presumption in civil and criminal cases about women’ – women could rely on the defence of marital coercion in criminal cases and on duress in both civil and criminal cases.

After their acquittal the women were released into Robinson’s custody to be returned to VDL.

As was usual in cases of a conviction for murder the matter was referred to the Governor for consideration of the Executive council as to whether the sentence of death should be carried out or the sentence commuted. In this case the decision was to carry out the sentence and the two convicted men were executed in public on 20 January 1842.

There are documents relating to this trial in the RHSV Manuscripts Collection, Box 55 (see Mullaly pp. 253–59)

38. Transcript of Trial of Michael Lawler for Assault

Willis Note Book No 12 Page 122

Dec’r 22’d. 1841

Mich’l Lawler – Assault

John Flynn Sworn

Border Policeman under Mr Powlett’s Command at M’t Macedon Stat’n – On the 9th of Dec’r the Pris’r went out after some Cattle he returned in the Even’g in Liquor – he came over to Mrs Hawkins the Serg’t Major’s Wife & began to abuse her – he came into the Barrack Room & I told him he ought to be ashamed of himself of the way he went on with Mrs Hawkins he got very Angry Challenged me to fight – I said I wo’d have nothing to do with it – When I got to the Door Lawler struck me with his hand I turned round & threw him against the door When he got up he took up two Stones one in each hand, he threw the one he held in right hand hit me on the head & knocked me down – he threw the other Stone & hit me on the Shoulder when I was down – He kicked me when I was down –

X’d

You were in liquor – I did not knock you down before you struck me – I knock’d you down ab’t ½ p’t five – I was senseless after I received the blow from the Kick

Defence

Cha’s Oliver Sworn

On the Even’g of the 9th of Dec’r I bro’t you out to bring some Horses in – you did seem to be in liquor – He seemed very Violent –

Guilty of Common Ass’t
2 yrs Impris’t

Commentary

Lawler was recorded in the CRB as ‘Bond’ – this indicates he was probably an assigned servant at the time of this assault.

39. Transcript of Trial of John McEvoy for Embezzlement and Larceny

Willis Note Book No 12 Page 123

Dec’r 22’d

John McEvoy – Embezzlem’t & Larceny

John Sutherland Sworn

I am a Builder I recollect ab’t the 29th of Nov’r – I purchased a halter for a Horse at Mr Robinsons the Saddlers’ Shop – I saw the Pris’r there – I p’d 2/6d for the halter – p’d it to the Pris’r at the Bar – I am quite sure that is the man –

X

I had been in the habit of going to that Shop but had not been there for six weeks or two months previous – I wo’d not have know the Pris’r to have been Mr Robinson’s Man if I had met him in the Street – others in the Shop when I bought the Halter – one purchasing goods – The Reporter of the Herald –

Rob’t Robinson Sworn

In Nov’r I kept a Saddlers Shop in Bourke Street – I know the Pris’r he was at that time in my Employment – He was my foreman He had authority to receive & pay

Mo’y – I met last Wit’s at the door – I recollect a person of the name of Jones com’g the day after – on Thursday the 25th of Nov’r – I think the Man Jones came – he came in with half a ? & asked for a Receipt which I gave him – Tho’s Nicholl was in my Employm’t

X

I am positive I did not send Jones myself Pris’r has been 8 or 9 months in my Employm’t had the highest opin’n of him before this event – I bo’t betw’n 40 & 50 pounds Worth of goods from Pris’r I let my Shop to a person I did not know – I gave a tin Slate to Pris’r to put down wh’t he received & goods deliv’d to Customers – a good deal of ready Mo’y going over my Counter – Possible the Pris’r might have forgotten – Pris’r denied that Sutherland had bo’t the halter – Tho’s Nicholl the other Man in the Shop said he had – On Thursday the 25th – Pris’r had not given me Notice of quitt’g my Employm’t – He did not do so till afterw’ds – On the Monday week after I inquired further & charged the Pris’r with it – I have not – Before I had made this further inquiry I stated my Wish to take the pris’r into my Employm’t again – It was on Saturday on the 27th I did so –

Tho’s Nicholl Sworn

I was in the Employm’t of Mr Robinson Pris’r was also. I recollect seeing Sutherland in the Shop last Month he purchased a halter – I did not see him pay for it. Pris’r took down the halter & Sutherl’d took it away – It might be an hour or it might be less – Master asked if Sutherl’d had got a halter Pris’r said No. I said I saw Sutherl’d take away the Halter & I said at the same time that he might not have observed it as there were other Men in the Shop–

Andrew Rutherford Sworn

Known Pris’r 7 or 8 Months. I have a high opin’n of him – Worked three months in the same Shop –
Not Guilty

Commentary

One can now only wonder whether this John McEvoy was identical with the John McEvoy convicted in November 1844 on a charge of Larceny as a Servant and sentenced to be transported for 14 years. The 1844 case involved the stealing of goods from the saddler’s shop where he was then employed.

The remainder of page 125 is blank.

40. Transcript of Plea of Vesey Duffey

Willis Note Book No 12 Page126

Dec’r 22nd 1841

Vesey Duffey – Larceny
Pleads Guilty
Says it was from Distress – 2 yrs Impris’t –

Commentary

Her status is recorded in the CRB as ‘Free’.

No detail is known about this case but the Port Phillip Gazette of 22 December 1841 reports that Willis said he would enquire as to her character and if it was as she said and she had no objection in going to the Female Factory he would recommend commutation of the sentence.

The remainder of page 126 is blank.

41. Transcript of Trial of Peter Cardwell for Larceny

Willis Note Book No 12, page 127

Dec’r 22nd 1841

Peter Cordwell – Larceny –
Pleads Not Guilty

Anne Mildenhall –

I live in Little Collins Street – my husb’d is a Wheelwright – he is now in Launceston I recollect the 7th of this present Month – I bro’t two Boxes with me – A Skirt of a Gown – Identifies it I lost other Property Identifies it. I saw the Pris’r at the Police Office ab’t this Matter – I stay at my Sisters Elleanor Pethfers in Melbourne

X’ex’d

When I came to Town I came from Mr Jennings Stat’n on a Dray – The Box on the front p’t of the dray on the top of a Load of Wool – The dray went to Tho’s & Luscoe’s Stores – Dray left in the Street all night the Box on it –

Martha Turpin

I live in Eliz’th Street – a Dress Maker – I know the Pris’r I recollect seeing Pris’r at my House last Wednesday Week – in the morn’g. he came to get a dress made – the dress produced is it Stays – I was not to make it till he bro’t the person in Evening – He did not come in the Ev’g. He came two days after There were two other persons in the Shop Susan Turpin & Sarah Townsend – Pris’r was in Custody of the Constables when he came the last time I then asked if he were the person who bro’t the dress & he said he was –

X’ex’d

The things were partly made up – Pris’r said when he first came that he wo’d bring the Young Woman in the Even’g at 8 oclock – I was not to interfere with the Goods until the Party came – Pris’r never denied bring’g the Goods to me when he came with the Constables –

Susan Turpin Sworn

Fred’k Carman Sworn

Constable – I recollect the 9th of Dec’r – I went to a Stable belong’g to Mr. Sellers Pris’r’s Master to search a Stable & loft I searched & found a fustian Shooting Coat & in the Pocket I found a Handkerchief & Collar (Identified by Mildenhall) I found nothing else – Two Carters lived in the loft – Pris’r one of them Loft was in the y’d Mr Sellers Prosecutrix & P. Wood accompanied me – He was in Charge at that time – I searched two beds

John Seller

I recollect 11th of this Month I live at the Corner of Eliz’th & Flinders Streets I know the Pris’r – I accompanied last Wit’s to my Stable Pris’r slept in a loft as above Cant swear I saw Pris’r wear te Coat – I saw him wear one like it. Wood was in my Employ last Saturday Week – Constable hand’d Handkerchief & Prosecutrix Burned them in my presence – I have not seen Wood since –

Patrick Stapleton – Sworn

Recollect 11th of this Month – on Thuirsday before I went with Prosecutrix to Miss Turpin’s who produced these Articles – I stopped off & on two or three days – two Men went by & in consequence of Information I reeceived I took up Pris’r

X’d

When I told the Pris’r I was a Constable he struck me three times –

Defence

Wood Thief – bo’t Articles from Wood – Even’g Sales
Guilty –
7 yrs Transport’n

Commentary

The prisoner was recorded in the CRB as ‘FS’.

Daniel Jennings station was at Campaspie Plains (Billis).

Willis has no note that John Sellerwas sworn.

Book 12 ends with this case on page 129. Judge Willis left several pages unused.

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