Casebook 14 – Transcripts and Commentary

John Walpole Willis

Transcription of Book 14 (CRIM.)

[15 August, 1842 – 15 December, 1842]

Case List

• 1. Margaret Allen – 15 August 1842 – larceny– guilty – sentenced to 6 months imprisonment
• 2. George John Williams – 15 August 1842 – larceny – guilty – transportation for 7 years
• 3. Thomas Fisher – 15 August 1842 – horse stealing – guilty – transportation for 15 years
• 4. Mary Jackson – 15 August 1842 – stealing – acquitted
• 5. John Doyle – 16 August 1842 – [15 August 1842] – assault with intent – guilty – imprisoned for 2 years and to be kept at hard labour and at expiration to find a security for his good behaviour for 2 years, himself in sum of £100 with 2 bondsmen each in sum of £ 50 and imprisoned until such security be found
• 6. Elyiah Broad – 15 August 1842 – larceny from the person – acquitted
• 7. Stephen Clancy – 15 August 1842 – assault with intent to commit a rape – guilty common assault – imprisonment for 2 months one week in each month in solitary confinement and the rest at hard labour
• 8. Ann Kenny –- 16 August 1842 – larceny – guilty –sentenced to 6 months imprisonment
• 9. Benjamin Taylor – 16 August 1842 – larceny – guilty – transportation for 7 years –
• 10. Charles Peck – 16 August 1842 – larceny – guilty – sentenced to imprisonment for 2 years with hard labour
• 11. John Whitaker – 16 August 1842 – cattle stealing – acquitted
• 12. John Smith alias John Stanney – 16 August 1842 – stealing a pony – guilty – transportation for 15 Years
• 13. David Rees – 16 August 1842 – larceny as a servant – guilty but recommended to mercy – imprisonment for one month with hard labour
• 14. George Arden – 17 August 1842 – libel – sentence deferred to 15th Sept 1842 – Arden entered bond with securities to appear on that date. To pay a fine of £50 and find security for his good behaviour for two years himself in £500 and two sureties of £250 each – imprisoned till fine paid and security given
• 15. Edward Goble –15 September1842 – larceny– acquitted
• 16. Thomas Hennessy – 15 September1842 – larceny – guilty –transportation for 7 years
• 17. Henry Agnew –15 September1842 – perjury – guilty –transportation for 7 years.
• 18. William Andrews, Francis Smith –15 September1842 – larceny from the person – acquitted
• 19. John Young – 15 October 1842 – larceny – guilty – imprisonment for 3 months with hard labour
• 20. John Taylor – 15 October 1842 – rape – guilty – sentenced to death – commuted to transportation for life
• 21. John Conolly alias Malonney – 17 October 1842 – murder – guilty – sentenced to death – commuted to transportation for life
• 22. Geo Wellbank – 26 November 1842 – larceny– acquitted
• 23. John McNamara – 26 November 1842 – assault on bailiff – guilty – sentence postponed
• 24. Mary Baird – 26 November 1842 – larceny– acquitted
• 25. William Wilson – 26 November 1842 – larceny– guilty –transportation for 7 years
• 26. William MacDonald –15 December 1842 – burglary – guilty –transportation for 10 years
• 27. William Barrett –15 December 1842 – libel – acquitted
• 28. John Jones – 7 January 1843 – larceny – pleaded guilty –sentenced to 24 hours imprisonment
• 29. William Robinson –7 January 1843 – larceny– discharged
• 30. William Rafter – 7 January 1843 – cattle stealing – acquitted
• 31. Enoch Walkedine – 7 January 1843 – larceny. – guilty –transported for 7 years-
• 32. Henry Carr –7 January 1843 – assault – trial did not proceed as the parties reconciled
• 33. John McIntyre – 9 January 1843 – larceny – acquitted
• 34. James Hemmingsley – 7 January 1843 – manslaughter– acquitted
• 35. William Rafter –7 January 1843 – cattle stealing – guilty – transported 10 years
• 36. James McGuire, William Duncan, John Robinson –7 January 1843 – stealing in a dwelling house – Mcguire and Duncan guilty – both transported for 15 years – Robinson not guilty
• 37. Robert Kent –15 February 1843 – larceny– acquitted
• 38. John O’Donnell – 15 February 1843 – forgery – guilty – transported for life
• 39. Samuel Wilson – 15 February 1843 – wounding with intent to kill – guilty of grievous bodily harm – transported for life
• 40. William Risk – 15 February 1843 – proffering a bribe of Ten pounds to the Chief Constable with the view of obstructing the due administration of justice – acquitted
• 41. Terence O’Neill – 17 February 1843 – larceny – pleaded guilty –imprisoned for 2 months hard labour
• 42. William Bourke –17 February 1843 – larceny – pleaded guilty– imprisonment for 2 months with hard labour
• 43. Daniel Connell – 17 February 1843 – fraudulent insolvency – – acquitted
• 44. William Barry Smith – 17 February 1843 – embezzlement – charge withdrawn
• 45. John McNamara – 15 April 1843 [15 March 1843] larceny– acquitted
• 46. James Woods – 15 April 1843 [15 March 1843] – larceny – guilty –imprisonment for 14 days
• 47. John McNamara -15 April 1843 [15 March 1843] – larceny – – guilty – imprisonment for 2 years with hard labour
• 48. Emma Cox alias Clarke alias Smith – 15 April 1843 [15 March 1843] stealing from the person – acquitted
• 49. Charles Duncan – 15 April 1843 [15 March 1843] embezzlement – guilty –imprisonment for 6 months with hard labour
• 50. Thomas Williams –16 April 1843 [16 March 1843] larceny – pleaded guilty – imprisonment for 6 months
• 51. Henry Pendergess, Patrick Nesbitt, -16 April 1843 [16 March 1843] common assault; – each pleaded guilty –imprisonment for 1 month with hard labour.
• 52. James Hyland – 16 April 1843 [16 March 1843] assault – pleaded guilty – fine £6 and to be imprisoned until fine be paid
• 53. Warrie – 16 April 1843 [16 March 1843] sheep – not capable of understanding proceedings
• 54. Phoebe Watts – 7 April 1843 – forging an order – guilty, recommended to mercy –transported for life.
• 55. John Lloyd Smith – 7 April 1843 – forgery – – pleaded guilty –transported for life.
• 56. William Manuel alias Ferguson – 7 April 1843 – escaping from transportation.
• 57. John Robinson – aiding and abetting. – Ferguson pleaded guilty – Robinson – guilty – Both – sentence of death recorded
• 58. Michael Flannigan – 7 April 1843 – forgery – acquitted
• 59. George Galloway – 8 April
• 60. Joseph Simmons; 8 April 1843 – Charles Birch – stealing – 1843 – larceny – pleaded guilty – transported 7 years – acquitted
• 61. William Watts – 8 April 1843 – forgery – acquitted

 

 

1. Transcript of Trial of Margaret Allen for Larceny

Willis Note Book No 14, page 1

Crim Sessions

15 August 1842

Margaret Allen –Larceny

Jas Piper Sworn

I live in Little Collins Street. I recollect the 15th of July. I know the prisoner. I know Ann Jones. I was at her house 21 ^st July – I saw a shift it is mine – shift produced. EG no 3 mark I am sure it is mine. Prisoner came when Mrs Jones sent for her I asked the prisoner where she got the property she said she bought it of a woman that was going to Geelong. She said if its yours you can take it. When I told her I would give her in charge she said no dont its not worth your while

John Doyle Sworn

I am a constable watch housekeeper. On the 21 ^st July Piper gave prisoner in charge. He said that before that he had lost 2 shifts from a line – he produced that shift and said it was one of them. Prisoner said she had bought it for 2/6d from a woman who was going to Geelong.

Ann Jones – Sworn

I am a laundress I knew the prisoner. I know the shift produced – the prisoner brought it to me to wash. Mrs Piper claimed it as hers<

GUILTY

6 MONTHS Imprisonment

Commentary

Other material indicates that this prisoner was commonly known as ‘Big Margaret’ and was often mentioned in relation to the stealing and disposal of property. She is recorded as ‘Free’ in the CRB.

Willis said he would try to have her moved to the Female Factory as this was better for reformation than the gaol in Melbourne. (Port Phillip Gazette 17 August 1842)

2. Transcript of Trial of George John Williams for Larceny

Willis Note Book No 14 page 2

Aug 15 1842

George John Williams – Larceny

Chas Swindle Sworn

I am Sergeant of Police I recollect the 4 ^th of Aug – I was on duty on junction of Bourke Street and William Street. I saw the prisoner on that evening about – I am quite sure that prisoner is the man. I saw him and another stop and put a box down – I can’t say that is the box put down. A box was put down in a passage between the house and kitchens belonging to Heape and Grice. I went up to the prisoner he attempted to strike me with a stick. I closed in upon him we scuffled together he knocked me down twice I found a skeleton key on his person – three keys one a skeleton- describes other things found on him. I struggled with the prisoner close by the building among some mortar heaps

X

There was no one in company with me when I went up to collar you. You were five or six yards from the box when I first got to you – I made straight to you – from the time I first took hold of you to the time I saw the box produced in the custody of a constable was not more than ¾ of an hour. I charged you with suspicion

John Duggan sworn

Constable on duty in William St 4 ^th of this month. I saw the prisoner running off from Sgt Swindle. I saw prisoner and Sgt Swindle struggling. Prisoner got away from Swindle. I took the prisoner into custody – I brought him to the watchhouse

X

I know Swindle’s voice. I often heard Swindle call

John Heffernan Sworn

I am a constable I was on duty in the neighbourhood of Bourke Street on the 4 ^th of this month. I was near Heape & Grice’s I found a box there – I did not see the box I saw a box in the passage between the two buildings Box produced is the one – no doubt whatever about it.

Per jury

I heard a scuffle I heard some person hailed out I went to the building & found the box No body could get there before me

X exd

I was in charge of the box until I brought it to the watchhouse swears to the box. I am sure I saw you that night – I saw you prisoner first in the watchhouse – I did not see you strike the constable – I did not see you run away.

Charles Hale Rumbold Sworn

Swears to the box – canteen – my property

Duggan recalled

per juryman

I never lost sight of prisoner till I took him

GUILTY

7 years Tr

Commentary

‘ in a passage between the house and kitchens’ – dwellings were sometimes built so that the living areas and the facility areas were in different buildings; the space between them, which varied in width, was usually covered and was known as the ‘passage’ or ‘passageway’.

Williams is recorded in the CRB as FS.

Messr Heape and Grice were Merchants and General Commission agents in Little Flinders Street (see Kerr).

The prisoner ‘flippantly cross-examined witnesses’ but did not succeed in eliciting anything favourable to his case (Port Phillip Patriot, 18 August 1842).

3. Transcript of Trial of Thomas Fisher for horse stealing

Willis Note Book No 14 page 5

Augt 15 1842

Thos Fisher. Horse stealing

John Griffith Sworn

I recollect the 17 Dec 1841 I know the prisoner I bought a horse cart & harness from the prisoner at the bar on my presence in Queen Street – they were delivered there by the prisoner I never saw them at Mortimer’s till after they were taken from me. I paid £22.10 ^s for them I agreed to give 60 ^L I agreed to give 30 ^L in cash & a 3 mths bill for the rest. Prisoner said that he purchased the horse & cart from Mr Lilly at Portland Bay. He sold them as his own & said he was the owner – he said that he had purchased them from Mr Lilly

Thos Rogers Sworn

I know the prisoner I know last witness. I recollect Dec 1841. I know prisoner sold a horse & cart to last witness for 60 ^L Document my hand writing agreement for sale 60 ^L – 30 ^L cash. 30 ^L bill at 3 months part of the money paid saw part of the money paid – 7 ^L which I lent to Griffith

X

I made no bill out against you

Per juryman.

Prisoner said he had given 73 ^L for the horse & cart I don’t recollect to whom.

John Turner Sworn

I am a constable I know the prisoner by having seen him in the Police Office, I did not take him into custody. I took a horse from Griffith to Mr Fawkener’s stable Mr Lilly claimed the horse afterwards – Griffith delivered up the horse

Henry Mortimer Sworn

I know George Lilly I recollect Dec 1841 I recollect having seen Lilly in that month. he had previously resided at Portland Bay. I could not identify George Lilly’s hand writing. Document directions as to horse and cart. Horse and cart pursuant to this direction was delivered at my premises I believe by the prisoner. They were subsequently taken away & never brought back. I directed him to take them to McLoughlin and Cruickshanks

A McLaughlin Sworn

The prisoner never delivered horse and cart according to written directions. They were delivered by Mr Lilly in Dec

GUILTY – TRANS ^P 15 years

Commentary

A reading of the depositions and the evidence set out above indicates that the horse and cart were owned by George Lilly who was an Auctioneer and Commission Agent at Portland Bay. He had given Fisher written instructions to deliver the horse and cart to Henry Mortimer who was an innkeeper in Lonsdale St (Crown Inn). Mortimer instructed Fisher to take them to McLoughlin and Cruickshanks but he sold them to Griffiths.

‘ Mr Fawkener’s stable’ –probably Frederick Edward Falkiner, former Chief Constable, who had a hotel in Flinders Lane about this time.

On a fold of these depositions there are some notes, by James Croke, to the effect that it is larceny if a person, such as a servant, has custody, but not possession of the property, and then disposes of the property.

When Croke opened the case he referred to the law and then Willis confirmed the correctness of what was said by referring to Hawkins Pleas of the Crown and also told the jury the prisoner was to have the benefit of any doubt (Port Phillip Patriot, 18 August 1842).

Fisher is recorded in the CRB as FS.

4. Transcript of Trial of Mary Jackson for Larceny

Willis Note Book No 14 page 7

August 15 ^th 1842

Mary Jackson – Larceny

Maria Middleton – Sworn<

The prisoner was in my service 3 mths I have a lodger of the name of Foot. I lost a key. I saw the key in possession of prisoner She gave it to me I exd the prisoner’s

X

I leave Mr Foot altogether

Thos Vickers Foot – Sworn

Lodged at Mrs Middleton’s. Pocket handkerchief produced my property. I don’t know where it was found. I never was guilty with any familiarities with the prisoner never missed it.

Mrs Middleton – recalled

Any one could get to the pris ^rs box it was always open it was in the kitchen<

NOT GUILTY

Commentary

Maria Middleton had a boarding house in Lonsdale St (Kerr).

The depositions in this case reveal that the handkerchief alleged to have been stolen had the initials ‘T V F’ marked on it.

The word ‘familiarities’ had sexual implications.

Mrs Middleton’s evidence that ‘Any one could get to the pris ^rs box it was always open it was in the kitchen’ would probably have led Willis to comment to the jury that they should have a doubt about the prisoner’s guilt.

5. Transcript of Trial of John Doyle for assault with intent

Willis Note Book No 14 page 8

August 16 1842

John Doyle – Assault with intent

Eliz ^th Haydyn – Sworn

10 yrs old (understands the nature of an oath i.e. to common intent)

I saw the prisoner before I am sure he is the man. I saw him at the first Public

House going down from Bourke Street to Newtown. Prisoner asked me whether I would ride I said no thank you Sir then I said I was going to Flinders Lane I could not stop he said he would be back again before it was dark he said he would be back again in an hour and ½ come on he said where does your mother live. I said up towards New town. He said very well I am going up towards New town I have been into your mother it is all right. I never saw him in my life before he gave me something to drink he said it was nothing but port wine he put me on his dray. This was up beyond the jail. Dark red He hove the bottle up to my mouth I couldn’t stop him he threw it all over me after I drank he offered his purse with his money I’ll put in your pocket. When he saw any one coming he say to me lay down and covered me over with his coat & stopped my mouth. I knew what I was about then and afterwards fell asleep. I saw our house when the cart was going on – he went beyond our house after the cart got beyond New Town. I recollect nothing.

X exd.

I don’t know all my companions- I was not in any Public House that day. I have been in to see Mr Findlay. I have gone into where he was playing the fiddle to dance

Andrew Thompson – Sworn

I remember the 1st of this month having seen the prisoner in the bush between this and the Merrie Creek he was with a little girl some little boys and a dray near within 100 yds of last hut little girl she was lying on her back. He was lying over the child he gave his small clothes a pull up the childs clothes were up I lifted the child she held up her hands to me and said take me from him, take me from him. I took her up in my arms she seemed senseless.

I was carrying her away when the prisoner took hold of me and tried to keep me back he then catched me by the neck cloth and struck me on the head I got out of his grasp and ran out a pace. He chased me once or twice when he had hold of me he said if I made any more resistance he would take my life on the spot I kept carrying on two men were coming prisoner laid the child on the dray and went away. I got the men to come with me and came up to the prisoner we went with him to Melbourne where we gave him in charge. Child was perfectly senseless when I took her up and vomited a great deal. She was senseless and then there was a strong smell of spirits

X exd

I had not been drinking. I had no animosity against you

C Sullivan – Sworn

Constable – recollects 2 ^nd Aug having taken the prisoner in custody he was given in charge by Mr Thompson

GUILTY ON THE 1 ^st COUNT

Commentary

‘ Eliz ^th Haydyn – Sworn 10 yrs old (understands the nature of an oath i.e. to common intent)’ – the law required that, before a child could be sworn to give evidence, the trial judge had to test the child’s understanding of the oath. There was an established practice whereby someone, usually a clergyman, tutored the child on this issue before the trial. Willis’ note ‘to common intent’ means that he was satisfied she met the standard test.

In Doyle’s cross-examination of the girl he attempted to elicit that she did not understand the nature of the oath and sneeringly asked her if she could say her prayers. Willis then directed the child to repeat the Lord’s Prayer. ‘The little girl reverently knelt down on the chair on which she had been placed and repeated the prayer in a very distinct and proper manner’, Willis remarked that she had evidently profited by instructions she had received. In charging the jury, Willis commented that he had never heard more creditable evidence than that given by a child ( Port Phillip Patriot, 18 August 1842).

The reference by Thompson to Doyle’s ‘small clothes’ was a reference to the flap at the front of his trousers.

The CRB records the crime as Assault with intent to commit rape on the person of Elizabeth Hayden a child of from ten to twelve years of age. Doyle was a holding a Ticket of Leave and was sentenced to be imprisoned for 2 years and to be kept at hard labour and at expiration to find a security for his good behaviour for 2 years, himself in sum of 100 pounds with 2 bondsmen each in sum of 50 pounds and to be imprisoned until such security be found.

In sentencing Doyle, Willis said he regretted he could not impose transportation for life (Port Phillip Gazette, 17 August 1842; see Mullaly pp. 167, 465-8)

6. Transcript of Trial of Elijah Broad for Larceny from the person

Willis Note Book No 14 page 11

Aug 15 ^th 1842

Elijah Broad – Larceny from the person

Robt Horne Sworn

I am a constable on the 30 of last month I saw the prisoner. I apprehended him on information I received at the Punt & hove him to the watch house. He was charged with stealing a £1 note<

X ex ^d

Between 7 & 8 oclock that night I wont be particular as to the hours I was present when prisoner was searched 23 shillings in silver were found on him

Joseph Bossey Sworn

I recollect he got to the Irish Harp on Thursday the 9 ^th of this month. Prisoner was there I had a £ 1 note in my waistcoat pocket. That’s the man that took it out of my pocket – He put his arms around me – I felt his hand in my pocket. As soon as ever he went out I spoke Mrs Heaney I had lost a £ 1 note – I had in my hand before the prisoner saw me put it into my pocket

X exd

In the evening between 6 and 7 o’clock or thereabouts I was that far gone I could not tell

Ellen Heaney Sworn

I know prisoner, I keep the Irish Harp. I saw the prisoner about a fortnight ago and Bossey at my house I saw a £1 note in Bossey’s hand. Prisoner could also have seen it Bossey said he was robbed of a £1. He charged prisoner with the Robbery. Bossey was not very drunk . I say prisoner clasp

Bossey in his arms immediately after Bossey cried out that he had lost his note and then prisoner went away

X ex ^d –

You were about one minute in the house

Per juryman<

Bosseys master was in the house 3 or 4 minutes before he gave Bossey a £1 note in the yard and Bossey came into the house from the yard

Defence

never saw or touched the man<

NOT GUILTY

Commentary

The depositions give the prisoner’s name as ‘ Elyiah Broad’ and that name appears in other documents relating to other crimes (VPRS Series 30P Box 185 NCR 47).

At the committal proceedings Constable John Waller gave evidence that he had known Broad for 11-12 years in both Hobart Town and Launceston in company of felons. And that in Melbourne his associates were thieves also.

District Constable William Wright gave similar evidence and added ‘I should not consider my money safe if I was in a state of intoxication and the prisoner being near me’.

There is no material indicating that James Croke called these witnesses at the trial.

7. Transcript of Trial of Stephen Clancy for Assault with an intent to commit a rape

Willis Note Book No 14 page 13<

Augt 16 1842

Stephen Clancy. Assault with an intent to commit a rape

John Higgins Sworn

I am a constable on the 26 ^th of July I saw the prisoner in William’s St he came running down thro the street & a man running after him to stop him. I took him in charge – I observed the fall of his trousers down when he came up I took him to a house at the Cattle Market. There I saw a woman with a child she shipped up the child and showed me the state she was in. The childs parts appeared swollen & inflamed. The woman took me over to the place – Identifies the man who gave the prisoner in charge. Man says his name Joseph Irvine. I took the prisoner to the watch house.

Saml Gleeson Sworn

Watch House Keeper I saw the prisoner on the 26 ^th of last month he was given in charge of me. Afterwards I examined his linen it was stained – no way bloody – I made him take off his shirt which I kept ever since

Catherine Hulme Sworn

I saw the prisoner 26 ^th of July I was gathering wood in the bush I had one child in my arms and another by my side & I saw the man. He came running from the child and a third child I was about 40 yards from where this child was I called to the prisoner and said you villain what have you done I saw the child afterwards when I saw the child it was red and inflamed and the hair about its eyes it had clothes up and kept showing us what the man had done. Red and inflamed & the mans nature running down its thighs.

Phoebe IrvineSworn

This is my child. I saw the prisoner on 26 ^th July between 3 and 4 pm I was sitting sewing by the fire. The prisoner came to our house in about 5 or 6 minutes my child cried out in a most vehement manner. I ran out I found the child with her clothes up I saw that the child had been abused he had fully gratified his lust on the child. I swear he had enter her.

John Dixon M.D.Sworn<

I am of opinion that penetration could not have been affected without drawing blood

GUILTY COMMMON ASSAULT

2 MONTHS IMPRISONMENT

ONE WEEK IN EACH MONTH SOLITARY CONFINEMENT

Commentary

None of the material gives an age for this child and her young age may be deduced from the fact that no attempt was made at the committal or the trial to call her as a witness.

Phoebe Irvine’s evidence ‘This is my child’ indicates that the child was in the courtroom and the jury was entitled to assess that she was under the statutory age if that fact was obvious. ‘ the fall of his trousers’ refers to the flap at the front of his trousers. ‘ the mans nature’ was semen.

Doctor Charles John Langford had given evidence at the committal that ‘the parts of generation were red and very tender. Nearly the whole length of the child’s groin showed marks of fluid which to the best of my belief was semen.’ He was of the opinion that penetration had been attempted. There is no material indicating why he was not called at the trial or how Doctor Dixon became a witness.

Clancy is recorded as ‘Clancey’ in the depositions and the CRB; Clancey is recorded as ‘Free’ in the CRB and the conviction and sentence are recorded as ‘assaulting Joice Irving with intent to commit a rape and abusing her person, she being under ten years of age – guilty common assault – Free – imprisonment for 2 months one week in each month in solitary confinement and the rest at hard labour’

The depositions have a note that Clancey was aged 15 years (VPRS Series 30P Box 1 – 1-14-7).

8. Transcript of Trials of Ann Kenny for larceny

Willis Note Book No 14 page 15

Aug ^t 16 1842

Ann Kenny – Larceny

Chas Brodie Sworn

Chief Constable – on the 5 ^th of Aug ^t I went to the house of Catherine Mulhear in consequence of information I received and inquired if she had a gown of a particular description, gown produced. I know the pris ⁿ she was in the house of Catherine Mulhear who states in her presence that theprison ^r brought the gown to her to have it altered. I then charged the prisoner with stealing the gown and sent her to the watch house

T Toby Sw orn

I live in Little Collins This gown is mine I missed it on the 18th of June. I never saw the prisoner except at the Police Office

Catherine Mulhear Sworn

I recollect the 5 ^th of Aug. The prisoner was at my house on that day I had a dress to make for her. I first saw the gown 6 weeks ago. Big Margaret brought it to be altered for herself. After it was altered the pris ^r got it from – with the intention of bringing to Margar ^t better than 3 weeks ago. Prisoner went to the window and said Mr Brodie was going by and went away

NOT GUILTY

Willis Note Book No 14 page 16

Aug 16 ^th – Larceny

Aug 16

Ann Kenny – Larceny

Chas Brodie Sworn

On the 5 ^th Aug ^t I went to the house of Catherine Mulhear and found the towel and 5 gowns produced. They have been in my possession ever since Catherine Mulhear said pris ⁿ brought them there to be washed said this in the presence of the prisoner. Prisoner did not say these were hers – Prisoner seemed greatly surprised

Catherine Mulhear Sworn

I am a dressmaker not a washerwoman – to alter them – the pris ⁿ & Marg ^t came together with them. I was to alter the stained muslin for the pris ^r all the others were for the other woman.

X

Big Margar ^t said one of the dresses the stained muslin was to be altered for the prisr – the prisr said it was the stained muslin

Mary Dunbar strong>Sworn

I lost some property 4 or 5 weeks ago – I swear positively to the stained muslin the other gowns are mine also

6 Mos IMPRISONMENT

Commentary

There had to be separate trials for each offence as the law, then, did not allow for joint trial for separate even though similar crimes.

Kenny is recorded in the CRB as ‘Free’.

Willis expressed view that ‘Big Margaret’ was the thief. This case is connected to that of Allen (Willis Note Book No 14 page 1)–Willis said he would arrange for Kenny to be sent to the Female Factory if possible. ( Port Phillip Gazette, 17 August 1842)

9. Transcript of Trial of Benjamin Taylor for Larceny

Willis Note Book No 14 page 17<

Aug 16 ^th Benjamin Taylor – Larceny

Aug ^T 16 1842

Benjamin Taylor Larceny

Plea not guilty

Margaret Jamieson Sworn

I recollect the 26 ^th July last I purchased a sofa at a sale at the British Hotel and it delivered at my house put in and brought out afterwards to the verandah – describes sofa.

Dugald Stuart – Sworn

I know last wit ^{s –} about the 26 ^th July a sofa was taken from her house a sofa was placed in the verandah I saw it there – I missed it afterwards – about 20 min ^s afterw ^d s – I could identify the sofa describes marks. I do not know the pris ^r I have seen the sofa at the door just now – I saw the sofa in a house up above the “Farmers” Hotel a weather boarded house

Chas Swindle Sworn

I know the prisoner he lives in Little Collins St. He keeps a brothel. I went to his house and found in it the sofa. I saw the sofa outside the court today. Pris ^r at first denied the house was his and he afterw ^ds acknowledged he was the owner

X exd

I swear you said it was your house

Defence.

Pris ⁿ denies the house was his

GUILTY

7 YEARS TRANSPORTATION

Commentary

Taylor is recorded in the CRB as FS.

Swindle’s evidence – ‘He keeps a brothel’ – At this time the law allowed the prosecution to lead evidence of an accused’s bad character as part of the Crown case.

Swindle’s evidence – ‘I saw the sofa outside the court today’. Because the courtroom was small, it was common that large exhibits were kept outside the court – the jury would have seen the sofa.

10. Transcript of Trial of Charles Peck for Larceny

Aug ^T 16 1842

Charles Edw ^d Peck – Larceny

Chas SwindleSworn

On the 7 ^th Aug ^T I saw the prisoner at Taylor’s on searching Taylor’s house I searched a box owned by the prisoner in which I found shirt produced. Prisoner said it was his shirt after I showed him the name & I read the name myself I then gave him in custody Taylor was there at the house

X ex^d

At the time I went in 3 men and 3 women & only one more box

John Whalley Sworn

I live at Watson Hunters Bookkeeper – shirt produced is mine – marked by myself

my own hand writing. I never missed the shirt

X ex d

I employ a washer woman – I have not always checked my linen

Barry

All property possessions muddled together – a box

GUILTY

REMANDED

Commentary

Croke connected him to Benjamin Taylor, Ann Kenny and Margaret Allen; all were in the same house – the brothel to which Swindle referred. In his final address, Barry referred to the petty nature of the case and Peck’s good character. ( Port Phillip Gazette 17 August 1842)

After Barry’s final address, Croke addressed the jury; Willis commented that the Crown Prosecutor had the right of reply in all cases but that Croke did not often use it. (Port Phillip Patriot 18 August 1842)

Peck was ‘Remanded’ because an issue later arose whether Peck was ‘Free’ or ‘F S’ but Willis gave him the benefit of the doubt. ( Port Phillip Gazette 20 August 1842)

Peck is recorded in the CRB as ‘Free’ and he was sentenced, on 17 August, to imprisonment for 2 years with hard labour.

Peck was tried and convicted, before Justice Jeffcott on 15 January 1845, for forgery and was sentenced to be transported for life.

11. Transcript of Trial of John Whitaker for cattle stealing

Willis Note Book No 14 page 19

Aug ^T 16 1842

John Whitaker Cattle Stealing

Mr Croke

Length of time since the taking. ( Possession might have been recent but this possession was not discovered for a very long time afterwards)

Mr Wright Sworn

Ranger – I know the pris ⁿ he resides near Dandenong. On the 10 ^th of last month I was there on pris ^rs Run – I found a cow and calf property of Mr Power J.H.P. branded. The calf six weeks old – the prisoner did not say in my hearing that the cow belonged to him – other cattle on the run belonged to the prisoner. I drove this cow with other cattle from the prisoners Run to the pound because the prisoner had no licence for the Run and the cattle were not branded.

X exd

About 12 or 14 head of cattle there when I went up. The cow I found very convenient to pris ⁿ house about ½ a mile. I ordered the cattle to be driven in order to examine them – they were not driven in. I found this cow on the Run. It is very common for other people’s cattle to be on their neighbour’s run. Had she been on a neighbours run she might have returned of her own accord. – The Commissioner W.W. Dr Whitaker previously I was coming up to examine the cattle. – Prison ^rs cattle were not all branded. I asked the prisoner if the cow was his. He said it was a stray cow.

Joseph Shaw Sworn

I know the prisoner I am in his service I know his cattle I recollect a white cow with black spots I don’t know how she was branded I went into his service 4 months ago. A servant girl milked a black and white cow with black spots she had a calf 6 months old. I saw the cow at Mr Whitakers. I saw two men drive a cow that was at Whitakers

X

I was at Dandenong when Wright came up to look at the cattle – Whitakers cattle had been driven away and he left the others behind about a dozen – a black and white cow amongst them after Whitaker had left the station. I never heard Whitaker say the cow belonged to him. I frequently saw strange cattle among the herd. Whitaker told me the cow did not belong to him

R ex

I saw Wright drive the cow from Dandenong. A black and white spotted cow.

Quinton Dick Sworn

I know the prisoner I lived near him. I have his cattle I remember to have seen a white cow with black spots. I saw her yesterday near the Court House. I saw her at the British Hotel. I knew her to be in possession ab ^t 10 weeks –

He owned the cow as his own property all the time I was there he put a ???? the nose of a yearling steer which prisoner was the last year’s calf of this cow. She calved while I was there again I saw her yesterday month in the British Hotel Yard. I saw her yesterday. I don’t know that she had the yearling calf while in Whitakers possession.

X ex d

Three months ago since I saw Whitakers I saw the younger calf ab ^t 3 mon ^s ago. He said the cow was his I never asked him if any other cow was his. I am living in the bush. I have about 60 head – strange cattle sometimes ab ^t the run I never saw the yearling calf penned up – I have seen the other. Prisoner told me he bought the cow & paid five pounds for her – he did not say when – he said he bought her from Shaw’s Run. – his stockeeper he sometimes pointed out strange cattle on the run one or two of McAlpines. The cow was a very quiet one

J .H.Power Sworn

I live on the Merri Creek near the Yarra I lost the cow in question last Feb _y twelve months She was big in calf then – the white cow with peculiar black spots. I don’t think she c ^d have strayed. She had my brand J.H.P. I saw her the day before yesterday. She had the same brand. I p ^d 163;40 for the cow. I did not send across the water thinking it impossible for her to get there. Satisfied as to the identity of the cow

X ex ^d

Imported cow. I bought her from the Cap ^t of the Mellish . I saw the cow advertised and went to look for her. I am not aware that I had but I might have some of Mr Langhorne’s.

John Guest Sworn

Constable I know the prisoner I have seen him in the watch house. Pris ^r said if Wright wanted £10 or £15 he would have given it to him . Wright had been asking about a cow in calf. Prisoner said he was a poor man. Wright had known him a long time. The cow had strayed into his herd he never stole her

Defence

Ja ^s Griffith Sworn

I was in the employ of pris ⁿ about a month ago to move his cattle. I did so. I did not know his cattle I saw a white cow left behind

X ex ^d

His family remained behind after the cattle were driven away

NOT GUILTY

Commentary

In his opening address about the law James Croke must have referred to that aspect of the law which allows a jury to draw an inference of guilt if the prisoner was in ‘recent possession’ of the stolen property. Willis’ note in the brackets was probably a reminder to himself to direct the jury that the evidence in this case did not necessarily prove ‘recent possession’.

The witness Shaw was aged ‘about 10 years’; he was questioned as to his competence to be sworn – whether he knew his prayers and where wicked people went to. He was sworn. Erskine Murray for the prisoner commented about straying cattle. (Port Phillip Gazette, 17 August 1842)

Quick’s evidence about the cow ‘I saw her yesterday near the Court House’ indicates that the practice then was that stolen animals were tethered near to the court house for identification purposes.

12. Transcript of Trial of John Smith alias Stanney for Horse Stealing

Willis Note Book No 14, page 23

Aug^T 16 1842

John Smith alias Stanney – Horse Stealing

Plea Not Guilty

William Wright Sworn

I went to Dandenong about a week ago I know the prisoner. I saw him there at Dr McRaes’ station. I knew a chestnut pony belonging to Mr Roe. Roe went with me I saw the poney turned out with Dr McRaes’ horses – while changing my clothes the prisoner ran off – I found the pris ^nr afterwards at Mr Fosters’ station & apprehended him

X ex ^d

I said is it you Smith – he said yes – I believe you were in plant watching me off. I took the poney when I first went to Dandenong

John Roe Sworn

I know the prisoner I lost a pony ab ^t 3 months ago. I went with last witness to Dandenong. I saw my pony there – I asked the pris ^r about the pony. He said he had not seen him or not seen him today. Pris ^r said he had ridden the pony.

Francis Harris Sworn

I live at Dandenong. I know the prisoner. I know Scots. I saw prisoner there he offered to sell me a pony which he had purchased for 17£,10/-. The pony at the door , he asked me 20£ for him he said the pony was his own – a South American Grey.- I said I w ^D give him 20£ if he would show me a receipt & convince me it was his own. He named two persons O Williams & Lazarus each as the persons from whom he purchased the pony. I thought something was wrong and would have nothing to do with it

X exd

You were not sober

Michael Lyons Sworn

I live at Scotts. I remember seeing the prisoner there he had a pony there the one at the door. Pris ^r was at Scotts three times – twice mounted on the pony. He asked 18£ for him he said he bought it

GUILTY

TRANSP ^TN 15 YRS

Commentary

‘ in plant watching me off’ – ‘in plant’ was convict slang for ‘hiding’ (See Vaux)

The pony was on view outside the courthouse.

In 1842 William Scott had the No Good Damper Inn on the Dandenong line of road.

Smith was not sober at his trial and he apparently made comments about his sentence – the gaoler said people had brought spirits into the watchouse. Probably the spirits were taken into the watchouse by the wife of David Rees who was the prisoner in the next trial (Port Phillip Gazette, 17 August 1842).

Smith is recorded in the CRB as FS.

13. Transcript of Trial of David Rees for Larceny as a servant

Willis Note Book No 14 page 25

Aug ^ST 16 1842

David Rees Larceny as a servant

Pleads not guilty

Robert Ballantyne Sworn

I reside 15 miles from Town on the Sydney Road the prisoner was my servant I missed it after he left. I c^dnot say that he took the property when in my service. I swear to the books & a paper with parsley seed

Patrick Stapylton Sworn

Constable went to Ross house in search of stolen property. I found the books in one of the prisoner’s boxes there

George Ross Sworn

I know prisoner he left two small boxes in my charge. I know last witness he searched the boxes he found two books – Boxes were open.

GUILTY

RECOMMENDED MERCY

ONE MONTHS IMPRISON ^MT

Commentary

The CRB page 14(a) has an entry relating to No 14 David Reese ‘Free’ being convicted of larceny as a servant but as tried on 15 August – guilty but recommended to mercy –imprisonment for one month with hard labour.

Willis Note Book does not refer to the ‘hard labour’ but he had probably used those words in court.

Page 26 is blank.

14. Transcript of Trial of George Arden for criminal libel

Willis Note Book No 14 page 27

Aug 17 1842

The Queen v Arden – Libel

Mr Barry – Apology. Vindictive truth

Reads extract from Milton and Tomkin

James Gibbon Sworn

I am a settler. Proves the purchase of the paper in question.

Publication admitted.

Thos Mulcaster Sworn

I was never obliged to fly from Engl ^d to fly to Belgium. I have been on the Royal Exchange as a merchant. Never on the Stock Exchange – I never was driven from my accustomed haunts on the Exchange by deception and design, enemies or any other person or persons. If any one were to write of me that I was driven from my accustomed haunts well aware that these men in whose hands my personal liberty would not be worth a fraction it would not be true. I have read the passage & to the best of my belief it can allude to no one but myself

Reads libel proves innuendoes

X exd

I was in trade in London. Sometimes affairs went well – sometimes ill.

I was a bankrupt. I was arrested – I have given bail – I never left England when under bail. I never was under bail for more than a few months – I was never outlawed – I embarked from Plymouth – my brother ,Mr John Marshall had agents here – I had no letter of credit – I had a letter to the agent here I believe to Mr Thomas. I went to Belgium I have been in Flanders and in almost every country in Europe and I have been in one year eleven times in England. I never applied for my certificate. I lost £2500 in one year. I considered myself ill used & did not ask for my certificate. This is 18 or 19 years ago no application has been made to me by my creditors this 8 or 9 years (letter admitted read)

Mr Murray

Defence

Appeared for public denied. Appeared for Marshall – Publication cannot detract from character (but his friends may be expected to commit a breach of the peace J.W.W) Brothers exportation – amicable adjustment . General consensus – action . Press in the colonies – B urlesque report merchant politics in the estimation of the community .

Public meeting – verdict not beneficial to

GUILTY

FINED £50

PERSONAL RECOGNIZANCE £ 500 – £250 SURETIES FOR TWO YEARS

Commentary

The publication of a libel which is likely to cause a breach of the peace is a criminal offence.

Early in 1842 there was public discussion in Melbourne about the appropriate form of local government. Thomas Mulcaster Marshall, a commission agent, took a view which was opposed by Arden, the Proprietor of The Gazette . Marshall addressed a meeting of residents of the proposed Bourke Ward. In its report, on 22 July 1842, of that meeting The Gazette questioned Marshall’s bona fides and his suitability to be spokesman for the residents. The article referred to Marshall’s colonial career, his pre-immigration activities in London, his bankruptcy, questionable dealings on the London Stock Exchange and alleged that Marshall had fled from England to Belgium under highly suspicious circumstances. (Behan 232 –34) (Garryowen Vol 1 p357)

On 18 July 1842 Barry filed an Information against Arden; it was sanctioned by James Croke but was to be privately prosecuted by Thomas Mulcaster Marshall. ( Port Phillip Herald 19 July 1842)

Erskine Murray, defending Arden, sought a special jury but the prosecutor, Redmond Barry, opposed the application on the ground the application was not made in time. ( Port Phillip Patriot 18 August 1842)

Arden petitioned La Trobe to bail him so he could appeal to the Governor-in-Council to remit his sentence. Willis wrote to La Trobe that Erskine Murray had every opportunity to question the validity of the Indictment or moving for a new trial which he declined and that Arden had every indulgence already shown him. Willis stated there was no basis for commutation of the sentence. La Trobe sent the material to Croke who advised that La Trobe could not interfere as the matter was in Willis hands. (VPRS Series 19 Unit 36)

On 17 May 1849 La Trobe wrote to Arden that the Governor had rejected Arden’s request for compensation for the ‘illegal sentence’ of imprisonment imposed by Willis for libel in 1842. (VPRS 16 Unit 8 Page 192)

15. Transcript of Trial of Edward Goble for larceny

Willis Note Book No 14 page 30

Criminal Ct

Sept 15 1842

Edw. Goble – Larceny

Frederick Carman – Sworn

I am a constable I reside at Geelong I know prisoner saw him 17 ^th Aug ^T about 7 oclock in the evening with a large white bundle under his arm, coming from the back of J.W. Austin’s premises. I saw with a bundle and a piece of fat hanging out of it. Prisoner was Austin’s servant took out meat for customer. Took out fat also I believe. I went to the prisoner’s house demanded admittance he would not open the door at first. Went over to the watch house to get another constable. Looked through the key hole. Saw the back door I knocked at the door and prisoners wife admitted me. I could not find the bundle in the house. Prisoner was out. I found this bundle on the ground about two yards from the back door leaning against the weather boards. I took the fat over to the watch house and took the prisoner in custody in his master’s presence

X ex ^d

Not in prisoner’s yard. Outside the fence – quite open – can’t swear to the bundle

Jas. Austin Sworn

About 17 ^th Aug ^T I forget the day of the month. I keep a butchers shop. Prisoner my servant. 17 ^th of Aug ^T I was with Carman. I saw a bundle I believe that same I missed my fat I don’t believe I sold pris ^r fat on that day. I never agreed to give him any fat. I saw the bundle lying against the house. I cannot say it is my property.

X ex ^d

I never missed any fat – my brother has no interest whatever in the concern. The clerk principally manages the establishment. Pris ^r carries meat and fat about, if bought would be taken out at any time.

Edward Roche Sworn

Constable on the 17 ^th of August I went to prisoners house she gave admittance. Found fat two yards from door at the back of the house. Identifies the cloth

NOT GUILTY

Commentary

Erskine Murray defended Goble ( Port Phillip Gazette, 17 September 1842) .

After the acquittal of Goble on 15 September 1842 Willis commented on the expense of witnesses coming long distances and commented about necessity of having Quarter Sessions at Geelong or Magistrates having summary jurisdiction in petty Larceny. ( Port Phillip Patriot 19 September 1842)

16. Transcript of Trial of Thomas Hennessy for Larceny

Willis Note Book No 14 page 32

Sept 15 1842

Thos Hennessey – Larceny

JAS Lawton Sworn

On the 17 ^th Aug, I went to Richmond to the hotel where I saw the prisoner with the bundle I produce containing shirts and waistcoat I produce. He said he bought them of an Irishman

George Milligan Sworn

I live in Melbourne. I am an auctioneer. I never gave him a cheque, cheque produced paid to Mr Bell and passed to Mr Mathews. The shirts in the bundle the waistcoat on the prisoners person

Stewart Matthews Sworn – Settler

I have seen the prisoner at my hut. Proves cheque kept in a trunk locked – broken open. Shirts and waistcoat my property I missed them the day after the prisoner went away. Waistcoat was on prisoner and other things in bundle.

GUILTY

Commentary

Lawton was a constable.

At the committal proceedings, Matthews swore he was ‘ a settler at the Gardiner’s Creek’ and that the prisoner had come to his hut and had been given refreshments and allowed to stay overnight and was still in the hut when Matthews left early the next morning. (VPRS Series 30P Box 1 – 1-15-2)

Hennessy is recorded in the CRB as FS and as sentenced to transportation for 7 years

17. Transcript of Trial of Henry Agnew for perjury

Willis Note Book No 14 page 33

Sept 15 1842

Hy. Agnew – perjury

George Gordon Wise Swor n

(As in Quirk’s case) Agnews deposition there proves conviction

Mr McGuire – Sworn

Same as Quirks’ case. Def ^T at my house 24 ^th of April last. Sworn at the Police Court that he was with rum – false – swore same falsely at 22 ^nd month positive that he was served with wine only

Jas M Conelly Sworn

(evidence same as in Quirks case)

Dan ^L Pegg Sworn

same evidence as in Quirks case

Thos Pearson Sworn

Def ^T at McGuire’s on 24 ^th April. If Agnew swore it was rum he drank he would swear falsely. I heard him call for wine

Frances Eldridge Sworn

Evidence same as in former case

TR. 7 YRS

Commentary

Quirk is in Willis Note Book No 13 page 121, 16 July 1842; the references to the evidence being the same ‘as in Quirks case’ indicates that Willis must have had Note Book No 13 on the bench during this trial (see Commentary on Quirk’s case).

Agnew is recorded in the CRB as FS

18. Transcript of Trial of William Andrews and Francis Smith for Larceny from person

Willis Note Book No 14 page 34

Sept 15 1842

William Andrews & Francis Smith – Larceny from person

John Purvis Sworn

I live near the Grampians a labourer in the employ of Cap ^T Briggs I know prisoners. Smith came down in company with me on Monday 29 ^th Aug. from Stewarts Public House on the Buninyong road to Geelong. I stopped at a place called an eating house kept by Mr Uncles at Ashby Village When I came into there I had £96 consisting of notes, orders & cheques I had a watch – seals – 2 cheques drawn on Gilchrist & Alexander produced. I was to receive the money drawn by Cap ^T Briggs.

Watch produced mine I saw the watch taken from the prisoner at the bar Smith in the watch house. Andrews was not in my company at the eating house he was in my company subsequently. An offer was made to me not to appear here today by a person a mere stranger. The watch was taken from Smith by the constable. Points out the man O. Noland I charged Andrews with jostling me and taking my watch. The watch was ?????

Owen Nowlan Sworn

Watch house keeper formerly now a free man – knows prisoner. Knows watch saw it in possession of Smith in the watch house. On 3 ^rd Aug found it in FOB

X ^d

Pervis said at differ times in the course of the day that he had entrusted his

watch and property to one of the prisoners

NOT GUILTY

Commentary

Redmond Barry defended these prisoners and took some technical objections about the relevant law ( Port Phillip Herald, 16 September 1842).

At the committal proceedings the prisoner Smith stated he had the watch to take care of and that he was intoxicated and did not remember it when he was asked for it. The prisoner Andrews stated that Smith had the money and the watch in his possession two or three times to take care of ‘as he was the mate of the other man’. Defence witnesses were called at this committal and they swore to Purvis being drunk and to leaving documents around which were later found on the roadside. (VPRS Series 30P Box 186 NCR 50)

19. Transcript of Trial of John Young for larceny

Willis Note Book No 14 page 37

October 15 ^th 1842

John Young – Larceny

John Higgins Sworn

Constable knows prisoner saw him on 3 ^rd Sept in Bourke St. Slippers produced

found them concealed on prisoner. Swears they are same

X ^d

I don’t know if you had two shirts on

Samuel Carter Sworn

In the employment of the Hon. Mr. Murray. I swear the slippers in my hand are Dr Eskines

3 MONTHS IMPRISONMENT

HARD LABOUR

Commentary

I am not sure that Willis’ notes of Carter’s evidence make sense about the names – the barrister was the Hon James Erskine Murray.

Young is recorded in the CRB as FS.

20. Transcript of Trial of John Taylor for Rape

Willis Note Book No 14 page 38

Oct 15 ^th 1842

John Taylor – rape

Ann Hindhaugh Sworn

On the 8 ^th of Sept last I went to Dr Shaws at Corio for medicine for my servant. I was well then. I am sure the prisoner is the man he over took me behind Corio & Ashby Village. He said good morning when he came up to me and walked on a few steps – he then spoke to me in an insulting manner. I ran and called out murder. He overtook me and took hold of me threw me down and had connection with me against my will I am sure of this

X exd

I did not become insensible until I struggled til I could struggle no more. Penetration was effected before I became insensible.

Forster Shaw M.D. Sworn

I live at Corio, I am a physician. On the 8 ^th Sept last witness visited for medicine for her servant. She lives at Ashby Village I saw her on the 9 ^th at her own house. She was in a state of insensibility when I saw her. She recovered in a short time afterwards. I examined her person. There were marks of violence on each leg contusions, marks of fingers she told me what had happened. This was the morning afterward she told me distinctly that the person who she described accurately threw her down & had violated her person. The prisoner exactly answered the description so exactly that I pointed him out among other prisoners

X d

There were bruises no marks of extreme violence except the finger marks evidently as if the limbs had been grasped the marks were above the knee she complained of her head but I found no contusion. Last witness is of an exceedingly excitable & nervous temperament. I conceive from her temperament that she is incapable of resisting the slightest attack. I think her senses would be affected by such excitability. I think it possible that she might retain her senses sufficiently long to know what passed. For instance when her house was attacked she did not become insensible for some time afterwards. I saw the woman only ¼ of an hour before it occurred. I conceive in many cases of hysteria that the person may be to all appearance insensible but still to retain a partial sense of what is going on

Alice Unkles Sworn

I live at Ashby Village. On 8 ^th Sept I was at Geelong on that day. Ashby Village is a mile from Geelong. I saw two men on the road before me when returning home from Geelong. I know first witness I saw her on that day between Geelong Corio & Ashby Village. I saw her on the side of the road. She was lying down. I saw a man with her to the best of my opinion he was having connexion with her. I sang out to the men on the road before me to go and see whether it was a black or white woman. Before I came up the man that was with 1 ^st witness was gone. I came up and found 1 ^st wit ^s . The man ran away towards the beach. 1 ^st witness was standing when I came up. Shannon helped her up

X exd

I was 1000 yds off if not more when I first saw Mrs Hindhaugh Shannon was nearer. as soon as I saw the man run away I went up and found Mrs H standing on her feet. She called out to me and I came to her I heard her – I heard no screams before that. To the best of my belief it was a man having connexion with a woman when I came up Mrs H’s clothes were dirty, her bonnet & clothes were dirty I don’t think if I were only five yds off I could hear – she was a very weak woman

(Note in pencil put in later in Willlis’ writing. The remainder of this page and the following up to the verdict are crossed out with a pencil line through them.)

Sylvester Newton Sworn

I have no fixed place of residence. I never saw the prisoner to my knowledge till I saw him in the watch house at Corio. I know Mrs H I saw her on the 8 ^th of Sep ^T between Ashby Village & Corio. I did not see the pris ^r to my knowledge I was going up to Ashby Village between 4 & 5 oclock on the evening of the 8 ^th of Sep ^t with Mr Unkles who keeps a board & lodging house at Ashby Village. After we had passed Tims store ab ^t 30 yds their was a man in front of me of the name of Shannon. I believe I turned round to wait for Mrs Unkles and when she came close to me she said my god look at that man and woman against the road side. I saw a man & woman. The woman was Mrs Hindhaugh. The man ran away before I came up. I followed him. I overtook him. I cannot say the prisoner is the man. I never swore the prisoner was the man. I followed the man who got up from Mrs H. I seized him. I said you vagabond what have you been doing. I cant take upon me to swear the pris R was the man. I had known Mrs H nearly 18 months. I saw the man with a belt in his hands. I left the man on the ground I knocked him down before Mrs Unkles called me back. I saw the prisoner in the Watch. I cannot say the prisoner was the man I was engaged with.

Edward Addis Esq J.P.

The wit ^s in the box (Newton) was ex ^d by me in this matter. He was summoned. He did not obey the summons. A warrant of the police magistrate brought him from Melbourne to Geelong to give evidence

Continuation of Newton’s examination

Per jury man

I gave pris ^r biscuits this morning

Cornelius Sullivan Sworn Constable

I saw the witness (Newton) give the prisoner biscuits this morning. He likewise spoke to him & laughed at him. I watched him very closely. I heard witness speak to pris ^r but could not distinguish exactly what he said

X ^d

John Tucker Constable Sworn

I saw the witness hand cakes to the pris ^r _. He also spoke but I could not tell what he said.

Newton

I swear I did not speak to the prisoner Tucker. I swear the wit ^s was speaking to the prisoner for the space of two or three min ^s . I saw his lips move. Witness nodded his head at the observations of the pris ⁿ . The witness spoke to him also.

Defence whether the prosecutrix was in a position to identify the pris ^r & to say that penetration took place. If in doubt as to penetration or identity description

VERDICT GUILTY

Dr Shaw (recalled per juryman)

Gives Mrs Hindhaugh an excellent character

Commentary

Hindhaugh’s evidence that she ‘ran and called out murder’ was simply evidence that she followed the then standard practice of calling out ‘Murder’ when attacked.

Sylvester Newton had not long been released from prison and, in his evidence, was trying to avoid having to identify Taylor as the man he had seen shortly after Hindhaugh was attacked. James Croke then adopted the standard practice of adducing evidence to prove that Newton was ‘hostile’ to the prosecution case and so to be allowed to cross-examine him and discredit him. I take the passage ‘Newton I swear I did not speak to the prisoner’ in Tucker’s evidence to be a note by Willis of an interjection by Newton.

It is most unlikely that Dr Shaw was recalled by a juryman after the verdict to then give Mrs Hindhaugh an excellent character’. It is more likely that this occurred earlier in the trial and Willis had then forgotten to note it. The good character of the alleged victim was then relevant evidence in rape trials.

Because Taylor’s sentence had to be considered by the Governor -in-Council, Willis had to send his notes of the evidence to the Governor . I interpret the crossing out which commences before Newton’s evidence as being an indication to the clerk, who was copying the notes, that he need not copy the part of the notes that relate mainly to the material indicating that Newton was a ‘hostile’ witness.

Taylor is recorded in the CRB as ‘Free’; he was sentenced to death but, later, that sentence was commuted to transportation for life (see Mullaly pp 137, 214, 432-35).

21. Transcript of Trial of John Conolly alias Molonney for murder

Willis Note Book No 14 page 44

17 Oct 1842

John Conolly alias Molonney

Murder

not guilty

Thomas Green Sworn

I was shepherd to the late Mr Francis – he is dead – he lived at the Pyranees. I last saw him alive on the 17 ^th of last Sept. He died in consequence of a stab in the belly – I know the prisoner I saw him push Mr Frances about sundown on the 17 ^th of Sept. No person near the prisoner & Mr Francis could have been when Mr Francis was stabbed. I know that Mr Francis stabbed because I saw the wound. I saw it on the 17 ^th Sept in less than a minute after he was stabbed immediately after the prisoner pushed him. Prisoner was in F.’s employment. I know nothing of any quarrel F and the prisoner had on the morning on the 17 ^th of Sep ^t There was no one but the prisoner and Mr F together on the evening of the 17 ^th of Sep ^t . Mr F pushed the prisoner with his hands and told him to be off. He pushed the prisoner also with a stick not quite so thick as my wrist. The prisoner endeavoured to force his way up to the hut. The pris ^r was not then in the employ of Mr Francis. When Mr F showed me the wound he had his hand on his bowels. He opened his shirt bosom. I looked down & saw his entrails out in his shirt. Mr F. asked me to assist him up to the hut. His own house. As I was taking him up he said to me to go back & tell those men not to ill use the man. The men had caught him, the prisoner, at this time I went and told the men and Mr Francis went up to the hut by himself. When he first came to me Mr F. said “oh my god I am a dead man” Mr F. After he reached the hut came back again p ^t of the way – I believed what Mr F stated when he said he was a dead man. Mr F. struck the pris ^r with a stick very lightly 2 or 3 times he poked him very lightly –

X ex ^d

I was 100 yds off when Mr F came up to me wounded. F came down again part of the way after he had reached the hut. I was 150 or 200 yds off when Mr F. first pushed the pris ^r . The pris ^r went back a few yards & the struggle might have lasted a minute or two. I did not hear what passed between pris ^r & Mr F. The pris ^r was said to be cranky. I saw F strike the pris ^r two or three times with the stick over the shoulder directly after the pris ^r pushed Mr F.

Thos Wilson Sworn

I was in the employment of the late Mr Francis. I recollect the 17 ^th of Sept. I was then in his employ I know the pris ^r . He was also in Mr Francis’ employ He was so in the morning of the 17 ^th of Sept. He then left Mr F’s employment. Mr F. is dead he died on the 19 ^th of Sept I was present when Mr F. discharged the prisoner. I believe Mr F. did not pay his wages. I know he did not. He sent a note to Mr Petitt his partner 50 miles off. I saw the pris ^r go off on the road down the country – he returned to Mr F. ^s place in the evening ab ^t an hour before sundown. Prisoner might have been absent 3 or 4 hours. I heard F. tell him to go to Mr Petitt when F. dismissed him. On the pris ^r return I saw Mr F. walk down from the hut to meet pris ^r . I was 250 yards off. Mr F picked up a stick. He walked down and met the prisoner and hit him a time or two on the shoulder . I could not tell whether he hit him hard or not I did not hear the prisoner cry out. Pris ^r turned suddenly round after being hit and Mr F. turned round directly afterwards and tried to run. The pris ^r was following him reaching out at him & the pris ^r fell down. Mr F. then came up toward the hut holding his hand on the left side of his stomach. I met Mr F. He said “he has done for me Tom” I belief Mr F considered he was mortally wounded. I ran after the prisoner and overtook him. I did not find any weapon upon him. Pris ^r was searched. I saw no other person near Mr F. & the prisoner at the time Mr F. struck the pris ^r .

X exd

I ran about 200 yards after the pris ^r before I overtook him. I did not see him throw any thing away. He might have thrown a weapon away without me seeing it. I do not know that any weapon was found. There was no blood on the pris ^r when taken. I did not see any blood on Mr Francis. I knew the prisoner some months before I always called him (cranky John). I mean by cranky not exactly in his right senses. I thought so because a month before he broke a jar of sublimate – from the first I thought him cranky – pris ^r considered that no man ever got any wages in this country and would not believe that such was the case Mr F. was not a bad payer of his men. I never knew him, prisoner, to make use of wild expressions when handling any weapons. I think he knew right from wrong . He knew very well what he was doing. He was not always in his actions and doings guided by reason

R. ex ^d

Mr F gave the men a glass of grog in the evening. The prisoner was not one of those who partook of it – it was before he became a fighting man.

Per jury man

It was a note to Mr Petitt say ^g pris ^r was not in his right mind not a note for the balance of his wages

Simon Kelly Sworn

I was in the employ of the late Mr Francis. I last saw him alive on the 17 ^th of Sept. I know the prisoner. He also was in Mr F. ^s service I recollect the morning of Saturday the 17 ^th of Sep ^t I saw the pris ^r on that morning. I had a cut on the head. I asked the prisoner that morn to dress my head . He did not do so. I heard Mr F give him directions to do so. When Mr F. ordered prisoner to dress my head pris ^r rushed out of the hut. He rushed at him with this double barrelled piece. I was about 30 yds or less from the prisoner when he rushed out of the hut. He pointed the gun at Mr F. There were caps on the gun. It was cocked & the pris ^r drew the trigger. I don’t know whether the gun was loaded at that time. I & another took it away. The gun then was loaded with a heavy charge. It was about ½ an hour or ¾ after pris ^r pointed the gun at Mr F. that we took it away from him. One charge was drawn the other barrel discharged I heard it but did not see it discharged after it misfired when pointed by the pris ^r r . Mr F ran away. The cap went off pris ^r was between 20 & 30 yards from Mr F when he pointed and tried to fire the gun. When Mr F ran away pris ^f followed after him. Mr F ran down to the woolshed where the men were working. The pris ^r returned. I was then at my own hut door. I heard the pris ^r say that he would make him (Mr F) ? for he had cut his (pris ^r ) head. Mr F had struck pris ^r over the forehead for spilling the sublimate a fortnight before. After the gun was presented at Mr F the man was left at large. Mr F told the prisoner to leave his premises after presenting the gun. Pris ^r said he would not go till Mr Francis gave him a gun & money

I gave pris ^r a pair of boots that day out of the store by Mr F ^s order. The boots were to go in payment of his wages. Mr F gave the pris ^r some writings. I don’t know what they were. The pris ^r left the place between 12 & 1 o’clock he returned about the hour of sundown

We saw the prisoner coming about ¾ of a mile off. One of the men said John was coming againMr F went down to meet him 150 yds off. I was convenient to the hut door Mr F took up a bit of a stick on the road going down he spoke to the prisoner I don’t know what he said. Mr F gave pris ^r a push off with the stick on the shoulder & breast. Prisoner thought to rush up in spite of him up to the hut. Mr F then struck the prisoner with the stick about as thick as a double barrelled gun – the stick broke with the blow, the stick was rotten. The prisoner cried out when he was struck but I could not tell what he said. Immediately after the stick broke the prisoner turned round and rushed at Mr Francis. No other persons near Mr F and prisoner at the time I did not know what the pris ^r did to Mr Francis. The prisoner turned round quickly rushed up to Mr F and Mr F ran and prisoner followed after him & fell. Mr F got off from prisoner & came up to his own hut as far as he was able to run. He, Mr F ran a piece and clapped his hand upon his stomach. When Mr F came up to the hut I saw Mr F his shirt all wet and the bulk of his entrails out Mr F told one of the men to go back & tell the men not to ill use the prisoner. Mr F said “ he would never rise from the bed he was about to lie down in “. He did not go out afterwards I believe that when he said this he was apprehensive of death. I saw the pris ^r passing by Mr F’ hut window in charge of other men

Prisoner told me I asked pris ^r the day afterwards what did he stab Mr F with. He said it was a knife which he made of a shear blade. He admitted that he had stabbed Mr F. Pris ^r said he dropped the knife convenient to a water hole where the dogs followed him in stooping to get a stick, he dropped the knife

X exd

I knew pris ^r for about two months previous. Pris ^r I did not think was very sensible – not cranky pris ^r was rather distant at times strange in his manner always said he would not work but when he liked. The stick had a small fork on the end of it. It was a hurdle stick.

Robert Percival – Sworn

I was a bullock driver in the employ of Mr F at the Pyranese for 6 months. I know the prisoner. He was also in Mr Fs employment I recollect prisoner being discharged. I was at Mr F ^s station on the 17 ^th of Sept, I recollect the end of that day & the pris ^r returning to the station after Mr F was wounded. On the evening of the 17 ^th of Sep ^t pris ^r said ‘O Bob Bob he had done wrong he told me he had stabbed Mr Francis with a shear blade pris ^r told me he got it down at the wool shed

X exd

I have known pris ^r ever since he came to Mr Francis not altogether right We called him cranky John sometimes he talked sensibly sometimes not pris ^r used to call dec ^d a bloody rogue. Mr F as good a master as I wished to live with the prisoner had no reason to call him so

Rex ^d

Pris ^r was not like men I have seen who were mad

Johnathon Clarke M.D. Sworn

On Sunday the 18 ^th of Sept I was called upon to visit Mr Francis. I did not arrive till the evening of the 19 ^th . He was dead. I saw him dead. The injury he received in the abdomen from an incised wound caused his death. It was such a wound as immediately after its being received would send off the party apprehensive of death

X

Prisoner was under my care at Geelong. I do not consider the Pris ^r is of imbecilic mind – weak in intellect – persons of weak intellect are easily excited. I think he knew right from wrong I think he knew he was doing wrong when he committed the deed – people of weak mind are frequently impressed with erroneous notions

R exd

Prisoners weakness of mind does not amount to idiocy not greater weakness than a child from 8 to 10

Mr Henry Pettitt Sworn

I knew dece ^d I recollect Sunday 18 ^th of Sep ^t . I live 50 miles from dece ^d station. I came on Sunday the 18 ^th to his station. When I arrived dec ^d said “we have been a long time together but we must part now – he would never get outside that door again “ describes the wound he told me the pris ^r inflicted the wound – John Mollonney. He discussed with me the circ ^s . Dece ^d was perfectly sensible of a future state & that he was going to die he gave his statement after prayers were read

X

I said to the dece ^d pris ^r ought to be hanged. Mr F said I don’t think he ought I don’t think he was in his right mind He held out his finger so & said the pris ^r perfectly well knew what he was about for when he presented the gun at me in the morning. He, pris ^r , said ‘F broke my head the other day – pris ^r had a note he said, the note he could not read, he said the note was no order for money. It was only worth the paper it was written on, Pris ^r was staying with the dec ^d for his victuals, After the commission of the act he answered me quite rationally – pris ^r acknowledged to me that he stabbed Mr F with the shear blade

DEFENCE

Mr Cunninghame

1 ^st whether pris ^r stabbed deceased

2 ^nd “ the pris ^r was sane when the act was done

3 ^rd “ provocation

4 ^th “ malice pre pense

Presents a gun in sudden fit of hallucination

Thos Seals Sworn

I have known the pris ^r 3 years. I knew him 12 years ago – he was rather an idiot than in his proper mind – he did not remain with his friends he went to live with an innkeeper he never got any wages I think he was out in his mind rather – I never knew him do any thing out of the way – he did many foolish things – I knew him to be rather childish

X

I lived till the year 1832 at Mount Rath – he was a boy I knew him the moment I saw him

GUILTY OF MURDER

1 ^st & 3 ^rd COUNTS

Mr Cunninghame moved in arrest of judgement on the grounds of insanity. I overruled the objection

SENTENCE OF DEATH PASSED

J.W.W.

Commentary

The depositions in this case disclose that on the morning of 17 September there was some incident in which Conolly pointed his gun at John Cayle Francis (27 years old), who was an overseer on the W J T Clarke property at Woodlands in the Wimmera, and apparently pulled the trigger but it did not discharge. Francis took the gun off him and later discovered it was loaded. Conolly was sent off to the head station. Late that afternoon Francis was giving ‘grog’ to the shearers when a man was seen to be approaching and ‘ There were bets of tobacco as to whether he was “John”’.

After Francis had been stabbed and realized he would die he made it clear to the men looking for Conolly that he did not want them to do any harm to Conolly.

When asked to plead at the trial, Connolly said ‘he struck me first so I stabbed him’ – Willis directed that a plea of not guilty was to be entered. Erskine Murray defended Conolly.

The ‘ Johnathon Clarke M.D’ noted as a witness was Jonathon Clerke, the surgeon at Geelong. At the committal, Clerke had given evidence that when he saw the prisoner ‘I asked him what ship he came out in he said a ship called “kill all you can’”

Willis complimented Murray on able manner in which he had defended the prisoner and directed the Jury to consider whether the prisoner knew right from wrong when he struck the deceased – if he didn’t the jury must acquit and the judge would make the necessary orders. The Jury was also charged as to difference between murder and manslaughter.

The CRB gives this prisoner’s name as ‘John Connolly’; his status is given as ‘Free’. He was also known as ‘“Cranky” John Maloney’. The death sentence was later commuted to transportation for life (see Garryowen: Vol 1 p358-9; M Clarke: Big Clarke , p 84; Mullaly pp 230-33)

No notes on pages 55, 56

22. Transcript of Trial of Geo Wellbank for Larceny

Willis Note Book No 14 page 57

Nov 26 1842

Criminal sessions

George Wellbank – Larceny

Henry Coward Sworn M.D.

I recollect the 16 ^th of Aug ^t . I know prisoner he was at my house that day. He was there about an hour. I came to the house that very day there was a gun standing in the corner of the room. (identifies the gun as his property) a medicine chest was taken down & was standing in the room. I was engaged in adjusting the chest when pris ^R left the room. The pris ^r might have taken the gun without my seeing it.

X ^d

My wife and servant maid were in the kitchen when pris ^r went out . Pris ^r spoke to me when he went out said he would call again for medicine – you could not pass without my seeing you. I think it perfectly possible that you could not take that gun out of the room without me or my wife or servant woman seeing it.

It was three weeks or a month after pris ^r had been with me before I missed the gun. I had carpenters working at the time. I told the constable I had no suspicion – I saw the gun last on the morning of the 16 ^th Aug ^t . I can’t tell when I missed it. About a week or a fortnight before the gun was discovered I sent my servant up with my bill to the pris ^r . I have never been paid.

R exd

Pris ^r did not return on the 16 ^th of Aug ^t

Samuel Thistlewood Sworn

scourger – I live at Geelong I know the pris ^r he told me he had a gun to sell about 3 months ago. He told me with a deal of persuasion. He told me he stole it from Dr Coward he told me not to tell anyone else but he would be give me all I got over three pounds. I immediately informed Constable Carman – I then by Cs direction purchased the gun from pris ^r for a ring & a promisry note. The gun was in Melbanks house under the bed. Identifies the gun. When I purchased the gun pris ^r said I must not leave the house till dark. A soldier was there

X ^d

It was about two months ago after pris ^r told me he had stolen the gun that I told Carman. I went direct from pris ^s house with the gun to District Constable

Thomas Friend Sworn

Private in 80 ^th reg ^T I know the pris ^r . I was in his house on the 26 ^th of Oct between the hours of 7 & 8 in the evening. I knew Thistlewood I heard a conversation between the prisoner and Thistlewood. I heard them talking about a gun. I saw Thistlewood give pris ^R a ring and a promis ^ry note the note was for work and the ring.

X ex

I saw the pris ^r go out but I did not see him take anything with him. I did not see a gun in the house. I heard last witn ^s say that you could not force him pay as he was a pris ^r . You threatened to take him to the C. Constable & he then gave the promisary note.

Per jury

Thistlewood could not have taken the gun without my seeing it. Thistlewood did not return again. Thistlewood would not sign the note until he read it

Frederick Carmen Sworn

Constable at Geelong I know Thistlewood I know the prisoner on the 26 ^th Oct last. I received information concerning a double barreled gun on Wednesday the 27 ^th of Oc ^T . I apprehended the pris ^r he said he knew nothing about the gun – I went to pris ^r house and got the ring produced

John Antice Sworn

Assigned servant to George Knight

I had some conversation about 2 months ago with pris ^r he asked me if I could sell a double barrelled sporting gun for him he would give me all above £3 10/- for myself . Thistlewood was at Welbank’s house when I was on a Friday or Saturday. Pris ^r asked me I had got him a mark for that yet – he meant a purchaser for the gun

X ex ^d

Thistlewood was present when you asked me to get a customer for the gun

VERDICT: NOT GUILTY

Commentary

Wellbank (alias Counsins) was a transported convict and well known to Geelong Police.

A ‘mark’ was a gullible person. ( Oxford Dictionary of Slang )

23. Transcript of Trial of John McNamara for assault on bailiff

Willis Note Book No 14 page 59

Nov 26 ^th 1842

John McNamara – assault on bailiff of court of requests

Redmond Barry ESQ Sworn

Commissioner of Court of requests, proves some documents

Dennis Lyon – Sworn

On a certain occasion I was appointed a Special Bailiff to levy on defendants goods on the 28 ^th Oct . I made my levy defendant was in bed about 3 oclock in the day time. His wife called him out of bed. He said I had no business there. I showed my warrant. He said his effects were in charge of his landlord. There was no one else present. About 8 oçlock defendant assaulted me I told him he should go out. He got hold of my warrant. Said he had me he put it in his pocket he then assaulted me – struck me – endeavoured to put me out. He struck me with his (native) fist twice.

X’d.

I produced a writ of execution to you when I went in for £1.9.6

Thomas Glaster Sworn

I know last witness he was a special bailiff to execute a writ I handed it to him. I saw the signature of the commissioner and the seal of the court attached to it

X

the writ of execution £1.9.6

GUILTY OF COMMON ASSAULT

NOT CALLED UP FOR JUDGEMENT

MENTIONED HE PAID 40S TO PARTY

Commentary

‘ Redmond Barry ESQ’ as Barry had been admitted to practice as a barrister he was a ‘gentleman’ and entitled to the ‘esquire’ being noted after his name in official documents.

McNamara is recorded in the CRB as FS.

When McNamara was convicted, Redmond Barry said he would not press for judgment if the prisoner would pay the costs of the cause out of which the assault arose. ( Port Phillip Gazette 30 November 1842).

Probably the same John McNamara who was convicted of Larceny before Willis on 15 March 1843 and sentenced to imprisonment for 2 years with hard labour (see Willis Note Book No 14, p. 110)

24. Transcript of Trial of Mary Baird for Larceny

Willis Note Book No 14 page 61

26 Nov 1842

Mary Baird – Larceny

Patrick Stapleton Sworn

I am a constable. I know the prisoner. I recollect the 4 ^th of this month. I went to her house the 4 ^th of this month in consequence of information I received (articles produced found at the lodgings of the prisoner)

X

I believe the prisoner to be a married woman and her husband to be in the bush. The prisoner at the bar told me that either the day before she was apprehended or that day her husband went to the bush. The goods were not conceled prisoner was showing them to Mrs Bell. Mrs Bell was claiming them. Mrs Bell said it was stolen some time before. I believe there is a warrant out against the husband

Jane Bell Sworn

Wife of Mr Bell, Washington Hotel. Mr Baird was formerly the proprietor. Mr Baird and prisoner were married I was told when prisoner lived with me she was not married. I cant say I lost it when prisoner was a married woman. I missed some property about the 2 months since prisoner was then married she was living with me. We were living in the house before last transfer date.

We then became proprietors. Moses Baird was barman – in consequence of some information I received I went to look afore my property which I had lost

X ^d

Prisoner engaged by me at £20 a year. Mr Bell did give Baird leave to take a few things. But this was after the things were stolen

Increase R. Bell Sworn

I was landlord of the Washington Hotel on the 5 ^th of Nov. Transfer made last week Moses Baird’s licence was transferred to me. Prisoner was two months in my service. I was in possession of the Washington Arms before the licence was transferred from Baird. Prisoner was then a single woman. At the time the property was stolen prisoner was married to Moses Baird he was then in my service

NOT GUILTY

Commentary

She was also known as Mary Denehy (possibly her maiden name) . It was reported she was not guilty as ‘being under marital influence’. ( Port Phillip Gazette 30 November 1842). Marital coercion was then a defence at law.

Moses Baird had the Prince Albert hotel in Swanston St in early in 1842; Robinson Bell was the landlord in September 1842 by which time the name had been changed to the Washington Hotel.

25. Transcript of Trial of William Wilson for Larceny

Willis Note Book No 14, page 64

Nov 26 ^th (1842)

William Wilson Larceny

Mary Ann Quin – Sworn

I know the prisoner he lived at Kelly’s at the night of the fire. He entered Kelly’s on the morning after the fire (tureen produced and things in it & 5 things) He said he got these things for his trouble from the master at the fire I am sure about all these things to Kelly’s. Prisoner was a lodger not a servant

X ex ^D

He left the things in the kitchen there was no one in the kitchen. Some persons were in the house

A.H.Hart sworn

I lived in Collins St. My house was burnt. I know the pris ^r from having seen him at the Police Court. Identifies the stolen property found at Kelly’s house in Flinders S ^t _. I saw the things there, two articles not concealed, others in a bag. Tureen not in a bag. Articles were taken against my will.

X ex ^d

I cant say exactly all that was in the bag besides tureen knives and forks

John Waller Sworn

District Constable. I found these articles in Kelly’s house. Coffee and tea pot in a corner cupboard in an inner room – bag with articles

GUILTY

TR. 7. Yrs

Commentary

The fire was on Sunday 16 October 1842 in Collins St and commenced in Hart’s drapery store about 11 o’clock in the night; he lived on the premises. Other premises were also involved and plundered (see Garryowen Vol 1 page 205-07; See Cannon: OMT, p. 234).

Wilson is recorded as FS in the CRB

26. Transcript of Trial of William Macdonald for Burglary

Willis Note Book No 14, page 67

Criminal Sessions

15 ^th Dec 1842

M McDonald – Burglary

Thos Lawrence Sworn

I am police man – I know prisoner. I recollect Sunday 27 ^th Nov. I was in Flinders Lane that morning I saw the prisoner there at 3 oclock a.m. near the premises of Mrs Carr. I took him into custody on suspicion of robbery. I found property on his person. A pair of scissors dropped from his person. I searched him at the watch house & found a ring and a clasp (produced) & identified. After placing him in the watch house I found the rest of the property between Mrs Carrs house and the Yarra. The prisoner claimed the ring as his property. Describes the prisoner’s dress.

John Cory –Sworn

I recollect the 27 ^th of Nov about ½ past 2 o’çlock I heard Mr Carr cry out robbery . I started out of bed. I found a pair of boots about 10 or 12 yards from Mr Carr’s house. Prisoner claimed them

Catherine Carr Sworn

I live in Flinders Lane. I recollect Sunday 27 ^th of Nov I fastened up my house. About 2 or 3 oçlock in the night I heard a noise & got up. There was a light in the room. I saw a person outside with part of his body through the window. The fastening of the window was removed. Identifies clasp. Identifies certain articles which were in a box which was taken away. Can’t identify the prisoner

Sam Gleeson – sworn

Identifies part of the property as taken from prisoner which the last witness identified to be hers

X

I examined all your clothes

VERDICT: GUILTY

Commentary

‘ on suspicion of robbery’ – Lawrence was not using ‘robbery’ in a technical sense but rather as relating to some crime involving stealing. Mr Carr used ‘robbery’ in the same sense.

John Cory was probably Constable John Corry. Gleeson was a constable and was probably the watch house keeper

Macdonald is recorded in the CRB as ‘Free’. He was sentenced to transportation for 10 years.

On 6 ^th March 1843 Wintle reported to St John, who wrote to La Trobe, that James Mcguire, William Duncan, William McDonald and William Rafter, all under sentence of transportation, escaped on night of 4 ^th March by extracting bricks and cutting lining boards and were obviously assisted by the military sentry as he has absconded. (VPRS Series 19 Unit 42 – 2 files)

27. Transcript of Trial of William Barrett for libel

Willis Note Book No 14 page 69

Dec 15 ^th 1842

The Queen v Mr Barrett – Libel

John Highfield – Sworn

Clerk to Mr Thurlow on 12 ^th of Nov last. I was clerk in the Gazette Office paper. Mr S of alleged libel I saw it on Friday the 11 ^th of Nov last ? by a party representing M.S who was in the habit of bringing Mr Barretts advertisements. I could not swear to the party’s name. I have frequently seen the hand witing in some advertisements coming from Mr B’s office. This was brought for publication and charged to account of Mr Barrett. The advertisement in produced on paper appeared in consequence of the manuscript being brought. Defendant never objected to me that it was not his advertisement. The defendant was the Mr Barrett whose advertisement I had previously published.

X ^d

I am the person whose goods are advertised for sale for payment of debts. No authority produced from defendant to publish advertisement. I knew nothing about the writing

John Stapleton Sworn

Accountant – sales from dep ^t ? acknowledged to be his manuscript of libel delivered to me at the Gazette office as such. Proves newspaper produced at Gazette Office 12 ^th Nov 1842 contains libel in every one of the assertions relate to myself false. Denies specifically the assertions – states the reasons he believes Barrett the author 2 or 3 yrs ago ? 2 ^nd illegal charge on record

I have been applied to on behalf of self to with draw these proceedings

X

I was ? ? ?

When I left Sydney I went to V.D. Land I did not leave clandestinely – can’t swear to handwriting

Ryland John Howard Sworn

Printer of Times newspaper. Defendant authorised me to propose to last witness that he was willing to satisfy Mr Stephen as far as laid in his power about this letter that appeared in the gazette and that he had no personal ill will against the person Mr Stephen whatever. He said Mr Stephen could not prove either that defendant wrote or caused the letter to be written. I proposed to Barrett that he would retire that he should pay all expenses and deliver up the real author of the letter. also that if Barrett could find any sentence true Stephen would come under sureties for £50.

X

I went spontaneously to Barrett. He gave me no authority. At first it was only a proposition on my part & Barrett seemed to accede to it.

Mr Barry

NOT GUILTY

Commentary

This was a private prosecution.

Archibald Cunninghame prosecuted and in opening to the jury referred to the nature of criminal libel as likely to produce a breach of the peace. The case failed as the prosecution had not proved the defendant wrote the paper containing libel or took it to Port Phillip Gazette or that it was done with his authority. Redmond Barry defended. ( Port Phillip Gazette 17 December 1842)

28. John Jones for Larceny

Willis Note Book No 14 page 73

Criminal Session

Supreme Court

7 ^th jan 1843

Larceny – book

24 hrs imprist

Commentary

Jones pleaded guilty and is recorded in the CRB as ‘Free’ and that he was sentenced to 24 hours imprisonment.

The book stolen was a volume of the Penny Magazine. The short sentence was due to the time already spent in custody – since7 December 1842. ( Port Phillip Herald 10 January 1843)

At the committal held in Geelong on 12 December 1842 Constable Ambrose Draper swore that he saw the prisoner run from John Austin’s premises with a book under his arm – it was the book produced – green cover – the prisoner told him not to tell anyone he had seen him ‘for my neck is in the halter’. (VPRS Series 30P Box 2 – 1-17-1)

29. Transcript of Trial of William Robinson for Stealing bank notes

Willis Note Book No 14 page 74

Jan 7 1843

William Robinson – Stealing bank notes

Commentary

On 15 December 1842 the trial of Robertson had been adjourned on James Croke’s application on an affidavit of Chief Constable McKeever of Geelong that the principal witness had not been subpoenaed ( Port Phillip Gazette 17 December 1842).

The main witness, Alexander Donoldson, did not appear even though the subpoena had been served; he was said to be a constable with the Aboriginal Protectorate. His recognizance was estreated and, as the prisoner had been in custody since November, he was discharged ( Port Phillip Gazette 11 January 1843).

30. Transcript of Trial of William Rafter for Cattle stealing

Willis Note Book No 14, page 75

Jan 7 ^th 1843

Thomas Knapp –Sworn

�

I own cattle runs on the Yarra on the south side. I know the prisoner. I bought some cows of him on the 19 ^th of Sept last and had them delivered on the 11 ^th of October. Prisoner said when I bought the cattle that they were to come from Capt Bunbury’s station. I understood from the prisoner that he had bought them and paid for them. I paid £3-10 a head for each cow (receipt put in) 6 cows in all branded. Describes the brands one H.W.S. & G 4 on the near rump. The cow in question is branded H.W –J .B. on the rump the cows name was H.W.S.Flower. The prisoner gave me her name. She was one of those I bought from the prisoner

X

I was aware Capt B went to the cattle yard – you did not say positively that you got the cattle from Capt Bunbury’s station I understood from you that it was so. I endevoured to ascertain in consequence of suspicions I entertained if they Capt B’s cattle. I found the cow in question was supposted not Capt Bunbury’s. I am aware that there was a warrant out against you and that you did not go away

Capt R.H. Bunbury Sworn

I know the prisoner. He was once for 16 months in my employment as stockman – I have been in the habit of employing him since – as recently as June or July he was in my service. The last time I employed him was I think in Nov. I sent him up with a draft of cattle to the station I recollect seeing prisoner on 13 ^th of Oct in a house in Little Bourke St I called him into the street. Prisoner told me he bought down cattle I saw cattle in the town herd near the Caledonia. I did not identify any of the cattle as mine. I saw one cow which I knew I had sold it. I never sold the prisoner any cattle – I saw the cow “Flower in the police office yard last month and recognized her immediately – I never sold her to any one she was branded H.S.W. on the off ribs and some other brands J.B. on the near rump HSW the brand of the herd – name Flower

X

You came to me from Mr Wills with a 3 yrs good character – I always believed you to be a good character – I owe prisoner money for taking cattle to my station. The cow was on my run in the yards in June last the last time I saw her before I saw her as the police office. The last time you drove cattle down for me the cow was on the station

CASE

Defence

Edward Grisby – Sworn

Overseer to Capt Bunbury I do not know whether the cow Flower was brought down by you 7 months ago.

She was on the station early in October – there is an instance of a cow being sold in Melbourne and coming back to the station and found on the run afterwards – I don’t recollect the brands on Flower.

Capt Bunbury you were authorised to sell cattle for me – you sold me one or two working steers – I authorised you to sell cattle one or two fat ones on the road if you could meet with the purchaser when you were in my service and bringing down cattle

NOT GUILTY

Commentary

(see below after Rafter’s 2 ^nd Trial)

31. Transcript of Trial of Enoch Walkadine for Larceny

Willis Note Book No 14, page 78

Jan 7 1843

Enoch Walkendine – Larceny

John Williamson Sworn

Private 80 Regt – by trade a tailor employed as a tailor and by permission work as such. I know the prisoner I can save money by working as a tailor. I recollect the 13 Dec. I had 18 soveriegns or ½ 10/- in my box on the 13 ^th Dec. Six five pound note near my bed head – I missed this money by 8 o’clock the next morning 14 ^th . Prisoner did not sleep in the barrack. My wife took out part of the money on the morning of the 13 ^th . I dont know where the prisoner was that night – the prisoner was several times in and out. On the 14 ^th Dec in the morning my wife went to the box. I went to help her and found the hinges loose – I missed my bag with my money – the prisoner did not sleep in the barrack I never saw the prisoner go into the barrack room after I saw the money on the 13 until after it was lost.

Edward Henneken – Sergt 80 Regt Sworn

I recollect 16 ^th of last month. I know prisoner. On 16 ^th I was ordered and sent to arrest the prisoner. I did so. The prisoner was brought to me – I searched him I found in his cap a silk handkerchief – that the handkerchief a sovereign fell from it I took it to Capt Lewis who marked. I discovered a ring on prisoners finger which he refused to give up – he pulled it off and endeavoured to break it. The prisoner said he could account for the way he came by the money.

X

You were not sober when you endeavoured to break the ring

Capt Chas Lewis 80 ^th Regt

On 16 ^th Dec I went to Pattersons the watchmakers shop. I saw the prisoner there – he was not alone he was in company with a civilian my suspicion was excited – I saw Mr P. I returned to the barrack immediately – I desired last witness to take prisoner into custody and when there to search his person. I went into the guard room on hearing a call for help – I saw the prisoner using the utmost violence to prevent the Sgt getting possession of the ring and also to destroy the ring – it was only by overwhelming force we succeeded in getting possession of it. The prisoner sent for me twice – we were alone together. I said to the prisoner we have found a ring and a sov. in your possession. You may as well tell me what you know of them as the people are more anxious to recover the marriage lines than the money – he said the money was part of his share there were two others – he did not break open the box – the prisoner said he was at the door at the time the box was broken open

GUILTY

Commentary

The stolen money consisted of 18 sovereigns, 1 half sovereign, 10 shillings, six £5 Bank of Australasia notes and 1 £1 Bank of Australasia note.

Lewis’ evidence that ‘the people are more anxious to recover the marriage lines than the money’ is an indication of the importance of the Marriage Certificate at that time. My research reveals that, where the marriage was an issue, the courts and other authorities would only accept that people were married if the official documents could be produced.

Willis said that the confession to Lewis was sufficient to send case to jury ( Port Phillip Herald 10 January 1843)

The CRB records Walkadine as ‘Free’ and as a ‘p(rivate) soldier of the 81 ^st Regt’. This is a mistake as the 80 ^th Regt was the one stationed in Melbourne. He was transported for 7 years.

32. Transcript of Trial of Henry Carr for assault

Willis Note Book No 14 page 81

Jan 7 ^th 1843

Henry Carr – Assault

Commentary

The depositions disclose that on 10 December 1842, Carr, while sober, attacked his wife with his fists. She swore that he ‘threatened my life and says “he will be hanged for me”’. Doctor Arthur O’Mullane swore to the injuries as being ‘seven contusions on the left thigh caused by extreme violence’ and that ‘A fall could not have caused them.’ It would seem that the context of the assault was that Carr wanted to go to Corner Inlet but she refused to leave Melbourne (VPRS Series 30P Box 186 NCR 66).

The trial did not proceed as the parties reconciled at Willis suggestion – Carr was admonished and discharged (Port Phillip Gazette 11 January 1843).

Willis said a wife could give evidence against her husband in some cases including where the husband had been bound over to keep peace towards her. He enquired if that was the situation in this case and was told Carr had been bound over – Willis did not want the case to produce further problems between them. She said they had been married for 16 years and was willing to forgive him. Carr said he could produce evidence of sobriety for 7 years – Willis said it was an especially brutal assault if he was not drunk (Port Phillip Herald 10 January 1843).

33. Transcript of Trial of John McIntyre for Larceny

Willis Note Book No 14, page 82

9 ^th Jan 1843

John McIntyre – Larceny

Pleads not guilty

William Clayton – Sworn

I am steward of the ‘Aphrasia’. On 21 ^st Dec last the prisoner was on board – I saw him. I lost £20 8/- cheque – I can swear. Notes I cannot – I had the same quantity of silver in different coin as described in information. I intersepted the prisoner after he came on land endeavouring to shake or rob two fellow bush men – prisoner my purse and said he would like to shake me of it – the cheque was in the purse with the notes and silver. I laid down prisoner came over to me – and touching me several times seeming to impress his discourse on me – I heard the prisoner ask a sailor if he had picked up a purse. I asked the prisoner which purse he meant he said nothing. I put my hand to the side and found my purse gone – the purse was in pocket when I laid down on the locker – with reference to my purse the cook pointed to the prisoner.

George Chadwick – Sworn

Cook of Aphrasia recollect the 21 ^st Dec. Prisoner was on board – the steward went to the cabin and the prisoner came to me. This was in the afternoon Prisoner appeared groggy ran of to the water closet. I saw the prisoner go to the water closet and went out I went in and found some silver and some paper and notes. there was nobody I saw went in to the water closet after prisoner till I went

X

I saw no other person go into the privy

NOT GUILTY

Commentary

The Aphrasia was a steamer operating between Melbourne and Geelong.

34. Transcript of Trial of James Hemmigsley for Manslaughter

Willis Note Book No 14, page 84

9 ^th Jan

James Hemmingsley – Manslaughter

John Keating Sworn

On the 26 ^th of Dec I was at the Richmond. The prisoner was there I knew John O’Shea he was there I ??? prisoner strike O’Shea. There was a row in front of the verandah when prisoner was singing a song – a lot of people were hissing & shouting prisoner about 5 minutes. I saw the prisoner lying in the arms of a man wiping blood from prisoner. After O’Shea was knocked down almost immediately to the best of my opinion he did not strike at O’Shea afterwards saw O’Shea lying by the side of the road he said – had got a severe blow.

X by Cumm?

I saw a lot of people a very large crowd hissing and hooting at prisoner struck immediately after O’Shea was struck. The distance O’Shea was found was about 200 yards from the place

Per juryman

Hemmingsley had not the stick in his hand at the time he was singing

Mr Anderson Sworn

On the 26 ^th of last month I was at Richmond – O’Shea was there the prisoner was there. Prisoner was on the verandah three boys teasing him prisoner told them if they did not go away he would strike them. Shoved one of the boys and another struck the prisoner with a stick and the prisoner struck the next boy & took his stick with that 5 or 6 of them attacked him with sticks – I saw prisoner strike one of the boys with a stick & in drawing it back again he caught O’Shea with the stick

Per Jury

�

Stick about a yard & ½ before prisoner struck the blow which fell on them he was attacked violently by the boys with sticks. Prisoner went away and was followed by the boys who stopped him and then he used the stick

NOT GUILTY

Commentary

The name of this accused is given as ‘James Hemmigsley ’ in the depositions.

There had been some event, probably a hurley match, in the area which is now the Melbourne Cricket Ground on Boxing Day 1842. After the game the crowd moved towards the town. At that time James Hemmigsley was on the verandah of Palmer’s public house at the eastern end of Bourke St. He was singing and was interrupted by some of the crowd hissing and hooting in circumstances which would have given him the impression he was about to be physically attacked. During the incident he swung a stick and John O’Shea was struck. O’Shea walked away but collapsed and later died from his injury. The evidence in the depositions and at the trial indicates that Hemmigsley was using the stick to clear a way for himself and that it was a backward swing that struck O’Shea.

There are some notes on the depositions which indicate that a view was taken that this was a Murder but I am not surprised that James Croke decided to let a jury determine whether it was Manslaughter.

After the 2 witnesses had given evidence, Willis announced that he thought the blow was ‘accidental’ and he directed the jury to acquit Hemmigsley. (Port Phillip Gazette, 11 January 1843)

Three of those who were in the party attacking Hemmigsley were Patrick Cain, Maurice Feehan (Finn), Matthew Mcdonald. They had also been committed for trial and James Croke made an Information for Affray, Although not mentioned in this Note Book, they pleaded guilty on 9 January and were each fined 5 shillings. Redmond Barry appeared for them.(Port Phillip Gazette, 11 January 1843, see Mullaly pp. 735-7).

35. Transcript of Trial of William Rafter for Cattle stealing

Willis Note Book No 14, page 86

Jan 9 ^th 1843

William Rafter – Cattle stealing

Not guilty

Thomas Churnside Sworn

I reside on the Grampians on my own station 8 miles from Capt Bunbury’s adjoins I sent 3 cows to Capt B’s station in Sept the overseer of Capt B’s was ? in Capt B’s service after some horses. I lost the three cows I identified Capt B’s 10 (?) days after to have the cows brought back again and they were not to be found – I made inquiries but could hear nothing of them in consequence of information I received I made inquiries about prisoners journey and the cattle he had with him. I went to Mr Bayley’s station and traced my three cows to Melbourne I went to Knapp’s I went out with him to the Merri Creek and found two of the cows my property branded inverted M.C.. and another ? cow branded J.W. on the hear hip ???? I am sure these are two of the cows I sent to Capt B’s and that they are mine and that I never gave any one authority to dispose of them.

X

I accused you at Bunningyong of stealing a cow

Thos Knapp

I live in Melbourne I know the prisoner. I purchased 6 head of cattle I purchased one cow afterwards claimed by last witness a strawberry cow branded W I took the last witness to Darebin Creek where the cows were running and he claimed this cow. He claimed another also a polly heifer I understood the brand to be W.C. The cow is ? outside here now

X

Mr Santele swore that the strawberry cow was his last witness asked me to whom another cow and calf belonged

Edward ? Frigley sworn

I am overseer to Capt B’s at the Grampians. I recollect 3 cows of Churnside’s on our run I recollect the prisoner I recollect a strawberry cow branded W prisoner was at our place 2 ^nd October I inspected the cattle 3 or 4 days after I saw them afterwards yesterday there was a polly cow the strawberry cow was Mr Churnside’s cow one of the three that were on our station

X

Churnside told me on Saturday to look at the cattle I never looked for cattle before I ? these

Mr Longbottom Sworn

I am in the employment of Capt B I know the prisoner I met the prisoner with the cattle at Bunningyong with two cows belonging to Capt B several others I could not swear to this was the 8 ^th of Oct.

X

You bought a bullock and two heifers from Mr Kirk’s overseer I don’t know of whom you bought the cows about two years ago.

Defence

Edward Sawtell Sworn

In Nov last I swore that the strawberry cow now claimed by Mr Churnside was mine explains the ? Superintendant in his absence to Mr Churnside who bought two cows

George Kaze (?) sworn

Mr Churnside called at my station he rode

GUILTY

TRAN 10 YEARS

Commentary

The spelling of ‘Churnside’ in these notes probably reflects the pronunciation of that name. It is clear from the depositions that the witness was Thomas Chirnside of the Grampians.

Rafter is recorded in the CRB as ‘Free’. In Robinson’s journal Rafter is referred to as ‘Bill the Native’ (Thursday 13 April 1843).

In Willis papers, in RHSV Box 55, there is a letter from Horatio Spencer Wills giving William Rafter a good character and suggesting that his behaviour has the ‘appearance of insanity and strange hallucinations’.

On 6 ^th March 1843 Wintle reported to St John who wrote to La Trobe that James Mcguire, William Duncan, William McDonald and William Rafter, all under sentence of transportation, escaped on night of 4 ^th March by extracting bricks and cutting lining boards and were obviously assisted by military sentry as he has absconded (VPRS Series 19 Unit 42 – 2 files)

36. Transcript of Trial of James McGuire, William Duncan and John Robinson for Stealing in dwelling house

Willis Note Book No 14, page 89

Jan 9 ^th 1843

Jas McGuire, Mr Duncan, ? Mr Robinson

Stealing in dwelling house

Aiding & abetting

? pleads not guilty

Andrew Stewart Sworn

I live ? Bunningyong. I know the prisoners I saw them all in my house on the 8 ^th of Dec about 8 o’clock in the evening or a little after I was in bed. McGuire pushed my room door open first he had two pistols a pistol in each hand I looked up & he said “if you make the least resistance I will give you the contents of these I cant swear to Robinson Duncan was at the door of my room with a gun Mrs Stuart my wife was undressed going to bed and said to Mr McGuire “For the Lords sake don’t kill him” meaning me at the same time Duncan pushed and took a gun from the bed foot & at the time had her hands on Mr McGuire’s breast, with that he immediately fell down, he said if she did not keep her hands off he would give her the contents of one of these meaning the pistol – I was frightened Mr McGuire said some thing and said take her away Duncan took my wife away from me Mr McGuire with & the veil came from his face so that I could see his features Duncan had no veil on his face a third man had on a white veil. Mc Guire called me over to him and threatened me he said he wanted my money he desired me to walk out and he followed me into the tap room I found there another man with a gun and the women crying a man said to me ???? settle with the men make it right they said they wanted our money I said I would do that provided they would molest no one Duncan said we wont take it all we will return again and give you some. Mc Guire went with me to the ?? room. I produced the cash box and they took the money but not bills or checks the veil came off McGuires face again after they got the money they walked out and asked for a bottle of brandy 12 sovereigns in a purse cant swear to them or the notes I got notes from Geelong Bank on the Monday before

X

There were 3 ? men in the tap room at the time I went to bed at 8 oclock. I keep a public house I had £ 148 of gold and notes I keep two servant girls and a man I get the cheques by discounting them I gave information of the robbery immediately afterwards I informed Southerland I went down to the police office next day and said what had happened and that I had seen three men

I arrested no one on the steamer but McGuire He was the first man arrested I did not swear to these three men I fixed on the prisoners because I knew Mc Guire. One was a stout man with dark hair abour 5’6” or 8” Mc Guire was the first man I saw I saw him and spoke ? Identity of Mc Guire before I saw the others. Duncan was down in the engine room I identified him as soon as he came up, I cant swear to the amount of the silver I swear that the £148 of gold and notes was taken away I was sufficiently collected to swear to Mc Guire and Duncan

Mary Brown Sworn

I live in Melbourne . on the 8 ^th of Dec I lived at Mr Stuart’s I know the prisoners. I saw them once before the robbery I saw McGuire Duncan and Robinson who stood at the tap room door with a gun. A white cloth over his face very thin – his nose through the cloth – I saw them before they came into the house about 8 o’clock – I saw them in the house by candle light. I entered the house on foot came after me- McGuire came in and the middle man – the man at the door Robinson ordered us all to sit down in the tap room. When he took his eyes off me I made my escape – the middle man had a brace of pistols on my bosom when I sais my master should not come out of the bed room. I went out a second time that’s the way I knew Robinson.

X

I was ? I left Mr Stuart’s three week ago. No offer of money for giving evidence Stuart was at home when the men were there before the robbery a month before – I swear I can identify them.

James Gardiner Sworn

�

Live at Mr Sutherlands I know Robinson I saw Robinson at our place the 8 ^th Dec I can’ swear a to the other two – there were two men with Robinson

X

Swears positively to Robinsons saw him about sunset – about 7 o’clock – they asked me for lodgings. I directed them to the Public house

George Egeston – Sworn

On the 8 ^th of Dec last about 1½ from Geelong they passed me about 5 o’clock on the morning of the 9 ^th of Dec one of them had a gun – one had a bottle – I took a drink of it brandy the prisoner said they wanted to Ashby. I saw two of the prisoners handcuffed coming out of the steamer – I saw them as the Police Office Robinson was sitting on a truss of hay in the steamer when taken.

Patrick Mc Ivor– Sworn

I apprehended the three prisoners on board the steamer on the morning of the 9 ^th Dec about 10 oclock – I searched them and found on McGuire £15 – 1 pound notes – two sovereigns and two half sovereigns – upon John Robinsons a £1 note – 11s in silver and 3 half pence – on William Duncan £1-16s 1d there were also two small parcels tied up in a handkerchief three pistols one charged – powder flash – caps – a bullet mould – I did not go down into the engine room – I found £5 and a cert. of freedom on Robinson

X

The prisoners did not own the parcel with the pistols they have not been claimed since – I arrest Duncan in the forecabin I arrested Robinson on the deck after he came up from the engine room. None of the money which I took was identified.

William SmithSworn

I recollect seeing the prisoners on board the Aphrasia on the 9 ^th December I found a note behind the almanach on the bulkhead Duncan and Robinson were in the engine room with me – – 3 soverains 6 p and a coin in the engine room concealed under the deck. A bundle was found on board but I know nothing about it.

X

Cant swear as to the identity of the money or coin

VERDICT

JAMES McGUIRE GUILTY

WILLIAM DUNCAN GUILTY

JOHN ROBINSON NOT GUILTY

These points on the trial were reserved without prejudice therefore urged not cured by verdict. Arrest of judgement.

1. 1. Mr Williams
2. Dwelling house not proved to be the dwelling house of Stuart in as much as it was said to be a public house
3. Money not identified
4. Information stated the pistols loaded and no proof
5. Mr Barry – Duncan charged as accessory but proved to be a principal

Mr Barry refers to the case of The King v Tattersals cited in I. Russell on Crimes p 22

Mr Croke contra refers to I. East P.C. 348-350. The King v ??

Commentary

Andrew Stewart was an innkeeper on the Buniyong Road, District of Geelong; it is not clear why Willis sometimes wrote the name as ‘ Stuart’.

The Aphrasia was the steamer which operated between Geelong and Melbourne.

The word now spelt as ‘cheque’ was often written as ‘check’ in the 1840s. Willis used both spellings – see John O’Donnell (below) where Willis uses both ‘cheque’ and ‘check’.

Because the Information made at the trial has not survived it is difficult, fully, to understand the points taken by Edward Eyre Williams and Redmond Barry ‘in arrest of judgment’. Any premises in which people lived and slept were a ‘ dwelling house’. It could be that the point was that it had not been strictly proved that Stewart was the licensed innkeeper.

Willis must have decided against the points raised by Williams and Barry; on 11 January, he sentenced McGuire and Duncan to be transported for 15 years. Both are recorded as ‘Free’ in the CRB.

On 6 ^th March 1843 Wintle reported to St John who wrote to La Trobe that James Mcguire, William Duncan, William McDonald and William Rafter, all under sentence of transportation, escaped on night of 4 ^th March by extracting bricks and cutting lining boards and were obviously assisted by military sentry as he has absconded (VPRS Series 19 Unit 42 – 2 files)

37. Transcript of Trial of Robert Kent for Larceny

Willis Note Book No 14, page 96

Feb 15 1843

The Queen v Robt Kent – Larceny

John Turner Sworn

I am a constable on the 31 Jan I saw the prisoner in Queen St I took him into custody on suspicion of felony. Brot him to the watch house Prisoner told me he had got himself into a pretty mess

X

I swear I never said anything to him I told him to come with me to the watch house

William Cordner-Henley – Sworn

I live in Elizabeth St Am an auctioneer I know the prisoner he was in the habit of visiting my auction rooms – it was taken out of my auction rooms about 5 or 6 weeks ago. This was taken in the day time I saw the pistol in the morning of one day and in the evening it was missing. That pistol (one produced) is mine, is the one I missed, is the one I found at Fultons

X

I had a brace of pistols of the same kind. I can swear to one distinctly (swears to this pistol) pistols are my own were not in the shop – not exposed for sale – were in my office hand writing admitted note read – I first missed this pistol 5 or 6 weeks ago. The man was frequently in my shop – I sold the pistol once but there was nothing paid for it and I kept it as my own – I cant swear that the prisoner took it I saw the prisoner in Fulton’s shop about a week or ten days after I missed. The prisoner was in the same habit of going to my office 4 or 5 after missed the pistol as before.

James Fulton– Sworn

I am a gun smith I know the prisoner I keep a gun smith’s shop in Collins St about 13 ^th of January the prisoner porposed to sell me a pistol. I believe this pistol to be it – I purchased it from the prisoner about Sat 21 ^st for 10s – very inferior article.

X

Pris represented himself to being in great distress – suffers from extreme want

NOT GUILTY

Commentary

Although Willis had no note of it, the Port Phillip Herald of 17 February 1843 reported that the jury foreman questioned Henley about his ‘intimacy’ with Kent and whether he gave him articles to dispose of and whether a visitor could have given Kent the pistol. The report continues that the answers were ‘direct and satisfactory’ but no detail is given.

At the committal proceedings, Fulton gave evidence that he thought Kent ‘was a medical man’.

It is interesting that in 1847 a Robert Kent, recorded in the CRB as an ‘Exile from Pentonville prison’ was convicted of Uttering a forged cheque and sentenced to be imprisoned for 2 years. The Port Phillip Patriot of 24 February 1847 reported that Kent was ‘better known as Dr Kent’. The first Exiles arrived in the Port Phillip District in 1844.

38. Transcript of Trial of John O’Donnell for Forgery

Willis Note Book No 14, page 98

Feb 15 ^th 1843

John O’Donnell – Forgery

George Rowe Sworn

I live in Collins St Druggist on the 13 ^th of last month the prisoner came to my shop for medicine which I gave him. He tended me the cheque produced in payment I have him the medicine and 6s. He returned the next day a few minutes before the banks were open and I asked for the balance I gave him 16/- more – I then sent my boy to the bank who brought back the cheque with the words ‘no acct’. At first when he gave me the cheque I said it was not indorsed he said it was payable to himself and indorsed it.

Henry Moor Sworn

Agent for Staughton Name Simon Staughton at the foot of the check not his hand writing

James Lorton – Sworn

I know the prisoner I am a constable. The prisoner is John O’Donnell I knew him in the 51 ^st Regt

GUILTY

TR. FOR LIFE

Commentary

According to the depositions in this case, O’Donnell used the name ‘John Gray’ at Rowe’s shop.

Henry Moor was a Solicitor in Melbourne.

James Lorton was Constable James Lawton. The effect of his evidence was that ‘John Gray’ was really John O’Donnell. At the committal , Constable Lawton swore he had known the prisoner for 17 years as a private with him in the 51 ^st Regt and he always went by the name John O’Donnell and ‘also goes by that name in the town of Melbourne’.

O’Donnell, in an unsworn statement, said was a case of mistaken identity ( Port Phillip Gazette 18 February 1842)

In a separate committal about this time, O’Donnell had been committed for trial on a charge of forging another cheque which he used at Isaac Lazarus Lincoln’s drapery shop (VPRS Series 30P Box 2 – 1-18-2)

O’Donnell is recorded as FS in the CRB.

39. Transcript of Trial of Samuel Wilson for wounding

Willis Note Book No 14 page 99

Feb 15 1843

Saml Wilson – cutting with intent to kill

Michael Kearnes Sworn

I was a constable I recollect the 6 ^th Jan I was called on duty to the barrack that evening between 7 and 8 – by a corporal. I went there and took the prisr into custody and brought him to the Watch House – the prisoner was charged with a violent assault I brot the prisoner to the Watch House.

X

Between 7 and 8 – you were under the influence of liquor

W.B.Wilmot. MD. (sworn crossed out)

I was called to the barrack on the 6 ^th Jan last a medical man to see a female – I went and found a female with a severe blow or would across the bridge of the nose – cut by a sharp instrument I found her in a hut in the barracks – I know from subsequent information that the woman’s name was Wilson. The wound might have proved dangerous to life. I saw an axe with blood on the edge in the hut where the patient lay she had been bleeding profusely – saw she could not have done it herself- there must have been very considerable force I was apprehensive that her life was in danger. She states a wound had been given by whom she did not know the immediate effect of which was a state of insensibility – the blow must have been a very strong one from the fractured bones

X

I saw another woman in the house and seemed quite alive to the friendly office she was performing. The other woman could not have done it

X

I could not say that the mark on the axe was human blood – when I gave up the charge of the wounded woman to Dr Cussens I considered her life was in danger.

Elizabeth Wilson Sworn

I am the wife of the prisoner I recollect the 6 ^th Jan I was in my own hut there was only the prisoner there and myself – he standing with his back against the fire. There was an axe in the room – the one produced is very like it – the handle is ours the axe itself belongs to Government. I was ironing a pair of trowsers when I was beginning to iron Mary Harrison came in – she left before I received the blow. The prisoner stood with his hands behind him the axe was kept in the corner near the fireplace. – we had a few words the day before and in the morning likewise but not in the evening. We had no words from 11 oclock till 4. I received a blow I took a glass of rum and water about 3 oclock

Mary Harrison – Sworn

Wife of Corporal Harrison I know the prisoner and his wife I live opposite about 12 yards between us I recollect Friday the 6 ^th Jan I was in the prisoners house in the afternoon between 4 and 5 the prisoner was not there – the wife was ironing. Between the hours of 6 and 7 I saw the prisoner and his wife in the hut I was standing at my door and his window was open (all panes of glass in the window). I saw him raise an axe and heard a crash of some delf on the chimney piece where he was standing.

In a few moments after ha called me, a few moments after I went in prisoner was leaning on a box against the window and a soldier of the name of James Wright was lifting the prisoners wife off the ground – the prisoner said I have done for her now and I may as well do for myself

I saw the woman she was lying on the ground with a cut on the bridge of the nose – very deep – lying insensible on the ground – she did not seem tipsy

X

Your hut is opposite to mine – I can see out of mu hut into yours I did not see where your wife was standing when the occurrence took place

Per jury

I saw from my door thro the window the prisoner distinctly poise the axe I did not see the blow given – I have seen her Elizabeth Wilson strike her husband – throwing the quart at him – prisoner seemed very sorry for what had occurred

James Wright Sworn

I am a private in the 80 ^th Regt On the 6 ^th of Jan last I was passing the front of the prisoners house I heard a smash of crockery ware I went to Mrs Harrisons door and asked her what was the matter – she said she did not know. The prisoner shouted out for Mrs Harrison I went across and saw the prisoner standing up in the house and the woman lying between the table and the cupboard apparently dead she had no sense at all – there was a cut on the bridge of her nose – I did not see an axe in the house I spoke to the prisoner and said he had done a nice job and he said he had done it and he might as well do for himself

I did not know what he meant – I thought he had killed her – half killed her. No one but Wilson and his wife present in the house – no one could come out without my seeing it

X

I saw nothing about this nothing of the blow or any thing.

George McGuire – Sworn

Private 80 ^th Regt I recollect the 6 ^th of last month on that evening I saw the prisoners wife in the arms of Wright insensible . The prisoner said I have done for her I may as well do for myself now

A very quarrelsome couple they quarrelled iin the morning the wife was unusually quiet that day the prisoner seemed very sorry after the matter was over – I don’t know how the accident ocured

Sergt Edward Hendrickson 80 ^th Regt

I saw the prisoner and his wife on the evening of the 6th Jan. She was lying on the bed wounded. I sent for a medical man – Identifies the axe it was lying between the fire place and the window there was blood on it.

X

I did not go into the house before this occurred I did not see a sheeps head there that day. Prisoner and his wife have had a quarrel before

Mr Barry

Nothing to show there was not a previous quarrel (to extenuate he must show there was) quarrel no evidence of a previous one

VERDICT

GUIILTY ON THE 2 ^ND COUNT

GRIEVIUOS BODILY HARM –TRANS FOR LIFE.

Commentary

The Information would have contained a count of ‘cutting with intent to kill’ as the first charge and also contained other counts alleging the usual alternatives; causing grievous bodily harm was a standard second count in such Information s.

This explains why the verdict was recorded as it was by Willis.

Both ‘barrack’ and ‘barracks’ were commonly used at this time to describe the living quarters of soldiers.

The spelling of ‘trousers’ as ‘trowsers’ was common at this time.

It is difficult to understand why Willis would have recorded Dr ‘Wilmot’ as being ‘Sworn’ and then crossed it out. My research indicates that Wilmot was always ‘sworn’ rather than ‘affirmed’.

Willis directed the jury about the strict proof needed for intent to murder. ( Port Phillip Gazette 18 February 1843)

Willis told the jury that in a case like this the wife was competent to give evidence against the husband. ( Port Phillip Herald 17 February 1843)

After conviction Wilson said he had had wretched life as his wife was always drinking with her companions. ( Port Phillip Patriot 16 February 1843)

Wilson was sent to VDL. (VPRS Series 19 Unit 43, file 43/538 )

40. Transcript of Trial of William Risk for Bribery

Willis Note Book No 14, page 104

15 Feb 1843

William Risk – Bribery to obstruct (course of justice)

Plea – not guilty

Chas Brodie – sworn

Warrant produced knows defendant – I had a bailiff in charge of defendants property under this warrant – Deft said “well Mr Brodie you have seized on my property and offered me £10 to refrain. He repeated the offer – I would rather give £10 – to go to jail

X

I gave the warrant to Patrick Stapleton

Re Xd

I had not the warrant in my possession at the time

Patrick Stapylton

received the warrant- executed

NOT GUILTY

Commentary

Risk had been fined £30 in some summary proceeding, possibly related to sly-grogging, and a warrant had been issued to collect the fine by distraining on Risk’s property. Brodie, the Chief Constable had set the distraining process in motion when Risk offered him the £10.

Patrick Stapleton was a Constable.

Risk was acquitted on the basis that the relevant warrant was not in the Chief Constable’s possession when the money was offered.(Port Phillip Gazette 18 February 1843; Port Phillip Patriot 16 February 1843)

41. Transcript of Trial of Terence O’Neill for Larceny

Willis Note Book No 14, page 105

17 ^th Feb 1843

Terrence O’Neill – Embezzlement (crossed out) Larceny

Pleads guilty – two months imprisonment, hard labour

Commentary

O’Neill had been committed for trial on a charge of Embezzlement and that was noted on the depositions. Willis may have written ‘Embezzlement’ before the Information charging Larceny was read to the prisoner. Legally, Larceny was the correct charge.

O’Neill is recorded in the CRB as FS. He had been employed by Thomas Norris, residing at Coorenaring, who was ‘manager of the Glenelg sheep establishment’. He was sent to Portland with some sheep and given the gun ‘for protection’. Norris was then obliged to discharge O’Neill for ‘misconduct’ and it was discovered that he had already sold the gun to David Edgar who kept the Bush Inn at Fitzroy River. There is a reference in the depositions to the gun being a ‘rifle gun’. (VPRS Series 30P Box 2 – 1-18-5)

42. Transcript of Trial of William Bourke for Larceny

Willis Note Book No 14, page 106

Commentary

Bourke, who is recorded in the CRB as ‘Free’, pleaded guilty and was imprisoned for 2 months with hard labour.

At the committal proceedings, Lillias Cummings, of the Bristol Hotel, swore that she saw the prisoner coming out of her cellar with a bundle (produced) on his back. She stopped him and asked what he had; she opened the bundle which had clothes in it. As she was looking at the bundle he walked away. The items came from a box in the cellar of the Bristol Hotel. The property belonged to a deceased man named McFadden and had been left in her keeping.

William Bourke was described as ‘a man of colour’ in the depositions and the newspapers but no further detail is given. (VPRS Series 30P Box 2 – 1-18-6; Port Phillip Gazette 18 February 1843; Port Phillip Patriot 20 February 1843)

43. Transcript of Trial of Daniel Connell for Fraudulent insolvency

Willis Note Book No 14 page 107

17 ^th Feb 1843

Daniel Connell – Fraudulent Insolvency

Plea – not guilty

A Campbell Sworn

Clerk to CommR Court of Insolvency. Proves sequestration – examination proved

John Connell – Sworn

I am the son of the Deft –I had no cows on the 3 ^rd of Oct last – I did not buy any cows at that time never bought any from my father I don’t know whether my brother Daniel Connell had cows or neither they were my fathers I never got money from my mother to buy cows. Did not bring money from V.D. Land

Daniel Connell – aged 17 knew nothing of an oath – had never been in a place of worship had not said his prayers for a year

G.W.Cole – sworn

I know the defet I recollect having seen in his possession a bill £40 some time after the third of Nov

G.O.Wintle – sworn

I received notice from Mr Gurner served copy of it on Deft

H.F.Gurner – sworn

Supoenas being ? Thomas Mulkeny

Cornelius Sullivan – Sworn

Bill no sufficient evidence of non production

Chas Arnold – Sworn

I spoke to the defendant about a bill due by the insolvent to Capt Colt – he said Capt Cole had better not sue him or he would leave the place or make away with his property

X

I did not know that he had any property to make away with

Commentary

When a person became insolvent he was examined about his financial affairs in the Court of Insolvency (a division of the Supreme Court). It would seem from the surviving documents and from the examination of Daniel Connell and other witnesses that one issue arose about the ownership of some cows and another about a money order or Bill for some £48 made out in favour of Connell. Captain George Ward Cole swore that Connell owed him about £22 on 10 October 1842 and refused to place a Bill for £48 ‘in my hands as security’. A man named Mulkenny was involved in the transaction concerning that Bill.

Henry Gurner, the Crown Solicitor, attempted to instigate procedures to have the Bill produced at Daniel Connell’s trial and to have Mulkenny subpoenaed to attend the trial to give evidence. (VPRS Series 30P Box 186 NCR 72)

Redmond Barry was retained for Connell but was appearing in a case in the Police Office so Willis allowed John William Thurlow, the Solicitor, to appear as counsel (Port Phillip Gazette, 18 February 1843).

The Port Phillip Herald 21 February 1843 reported that on the trial of Daniel Connell for fraudulent insolvency, Croke called the accused’s son as a prosecution witness. The witness was said to be 17 years of age.

Croke – How old are you?

Witness – I don’t know

Willis – Do you know who made the world?

Witness – I have heard it was God

Willis – What church, chapel, or place of worship do you attend?

Witness – I was never in a place of worship that I know of.

Willis – Do you ever say your prayers?

Witness – No

The witness was ordered to stand down and Willis said that the youth exhibited a deplorable state of heathenism

Connell was acquittal due to the non production of the Bill and the absence of a witness (presumably Mulkenny) (Port Phillip Gazette, 18 February 1843; see Forde p. 70; Mullaly pp. 171-72, 721-24)

44. Transcript of Trial of William Barry Smith for Embezzlement

Willis Note Book No 14, ppage 109

Feb 17 1843

William Barry Smith – Embezzlement

Commentary

Smith was on bail and the trial was postponed to the next Sittings to give him an opportunity to examine his books with view to enabling him, if possible, to explain his accounts to the satisfaction of the prosecutors, – the Manton brothers. ( Port Phillip Patriot, 20 February 1843)

At the March Sittings a material witness was absent and John Augustus Manton, having looked at books, ‘declined to proceed against him’ so James Croke withdrew the charge. ( Port Phillip Patriot, 16 March 1843)

45. Transcript of Trial of John McNamara for Larceny

Willis Note Book No 14 page 110

15 ^th April 1843 (actually 15 ^th March 1843)

John McNamara – Larceny

Cornelius Sullivan – sworn

I am a constable I know the prisr I saw him on 11 ^th March about 1 o’clock in Elizabeth St at an auctioneers Johnathan Skinner came up to me and showed me a plane and a saw which he said was his property stolen the Wedy previous he identifies the plane as his brother in laws property said the saw was his property it was exposed for sale by the auctioneer Green – Elizabeth St

X

I took that man on suspicion – my suspicion rests on an entry in the auctioneer’s book (let the book be produced)

Johnathan Skinner – Sworn

I am a carpenter I was employed at Mr Webbs stable in Collins St saw produced is my property swears positively from marks I put on – I lost the saw on Wednesday I saw the saw on Saty following at green’s auctioneer’s I saw the prisoner at the auctioneer’s I swear it was him he claimed the articles produced as his tools – the saw

Per Jur

Does not know whether the saw had been put up for sale

X

I said I did not suspect the prisoner I suspected another man who had been on me premises. this man (prisr) was working in the neighbourhood of my premises. The man I suspected in jail. I bought the saw from Richardson the iron monger.

Solomon Coleman – Sworn

I know the prisoner I was at the auction in Elizabeth St last Saturday – the prisoner. I was there from the beginning The prisoner bought a saw I cant swear whether the one produced was it prisoner offered it to me first and then bought it in he asked me 9/- for it – he said he anted a few shillings he asked me to lend him a shilling to get a ball he said the tools were his own

X

I cannot identify the saw

Mr Polman – Defence

James Gleeson – Sworn

I know the prisoner I saw him last in the watch house Mr Skinner told me he did not suspect the prisoner. He identified the saw saw produced the same

NOT GUILTY

Commentary

Willis has noted the wrong date; the trial was on 15 March 1843

Mr Polman – Defence’ – presumably defence counsel was Robert Williams Pohlman (see below for other trial of John McNamara, also on 15 March 1843).

46. Transcript of Trial of James Woods for Larceny

Willis Note Book No 14, page 112

April 15th (March)

James Woods – Larceny

Maurie O’Connor Sworn

I am a constable – I know the prisoner I saw him in Collins St on the 2 ^nd March I took him in custody he was charged with stealing a saw – produced saw was the one prisr was charged with stealing

X

prisoner was drunk – very drunk

Chris Smith Sworn

I live in Collins Lane I was in the employ of Crossley at that time – I saw the prisoner take the saw from Crossley’s shop – I pursued him and took the saw from him

X

He could walk – I am sure prisr is the man

Henry Crossley Sworn

I know the prisoner –saw him on the 2 ^nd March identifies the saw

�

X

I did not know the prisoner before

GUILTY

14 DAYS IMPRISONMENT

Commentary

Willis date wrong and trial on 15 ^th March 1843.

James Woods is recorded as ‘Free’ in the CRB.

47. Transcript of Trial of John McNamara for Larceny

Willis Note Book No 14, page 110

April 15th 1843 (March)

John McNamara – Larceny

Cornelius Sullivan Sworn

I am a constable I know the prisoner on 11 ^th March I took him into custody charged with stealing a plane (produced) he said it was his own property he said – necessity compelled him to have it there for sale – I know he is a carpenter

X

I marked the plane

Joseph Weller Sworn

I am carpenter in Lonsdale St near the Crown Inn Identifies the plane I lost it last Wed morning between the hours of 8 and 9 when I lost it I was working at Mr webs mark on the plane recently put on

X

I never saw the prisoner before I saw him at the police office the door was left open where my tools

William Martin – Sworn

I live at Mr Green’s auctioneers I saw the prisoner at an auction on Saty last. Prisoner put on the table the plane for sale – I similar to the plane produced – I made and entry in the book – book produced – prisr gave his name as McNamara

X

no other plane for sale that day I saw the constable take it off the table

Solomon Coleman – Sworn

I saw prisoner at Green’s auction on Saty last – I saw a plane similar to the one produced at green’s auction prisoner offered a saw and plane to me for 9/-

GUILTY

2 YRS IMPRISONMENT AND HARD LABOUR

Commentary

Willis has noted the wrong date and the trial was on 15 March 1843

McNamara is recorded in the CRB as FS.

Probably the same John McNamara charged with assault on bailiff (see above)

On 19 July 1843 Mary MacNamara, wife of John, petitioned for his release on grounds of hardship to children and herself then pregnant – a previous petition had been rejected in June 1843 (VPRS Series 19 Unit 53)

On 23 December 1843 the Colonial Secretary wrote to La Trobe that the Governor had remitted the residue of sentence of John McNamara (VPRS Series 19 Unit 54)

48. Transcript of Trial of Emma Cox alias Clarke alias Smith for stealing from the person

Willis Note Book No 14, page 115

15 ^th April 1843, (March)

Emma Cox alias Clarke alias Smith – stealing from the person

Edward Stanley – Sworn

I am a constable I recollect the 8 ^th of this month I saw her near the Golden Fleece I took her into custody for robbing Mr Clayton of £5-14/- She lives near Bourke St

X

about 1/ 2 past 6 in the evening I went immediately on being called upon to arrest the prisoner I went alone first and them I called another Constable Thomas Lawrence. I went to the prisoner’s door Mr Clayton was in a house opposite the prisoner’s she went on there while the man was out I did not see Mrs Clayton go in or come out of that house – Mrs Clayton said 5 £1 notes and 14/- in silver Mr Clayton was sober she was crying

Thomas Lawrence – Sworn

I am a constable on the 8 ^th of this month about 7 in the evening I took the prisoner into custody Mary Clayton gave prisoner in charge. When I took prisoner Mary Clayton was in a a house opposite Mary Clayton was sober then prisoner was in her own house when I took her in charge – Mary Clayton came over and gave her in my charge for robbing her of 5 £1 notes notes and 14/- in silver

X

I know Mary Clayton the neighbourhood she lives in is peaceable I went into the prisoners house to apprehend her – in another room there was a young woman – Mary Clayton said she had no charge against the young woman – the prisoner was the woman

Mary Clayton – Sworn

I recollect the 8 ^th of this month I knew the prisoner I was at hr house on that day between 6 and 7 I had £5-14/- about me 5 £1 notes and 14/- in silver it was underneath my arm in a childs sock I took a glass of something that turned my head it tasted to me like brandy and shrub prisr took a glass of gin I took a couple glasses og gin Mr Halfpenny’s house I discharged my stomach she drew the sock from under my arm she held my head she tore my gown – I screamed a neigboure came to the door prisoner said my child fell and that was the reason I screeched I asked prisoner on my knees to give me my money she said she had not got it I then asked for half there was another woman of the name of Francis in the house she could not have taken it – no person but Emma Cox could have taken it the moment when I screeched out I could not go to the door my head was so bad – a neighboure went for a constable

X

after being at Halfpenny’s I was afraid to go home – I had only drank a gall wine – my eyes were so swollen that I could hardly see the bed room door

NOT GUILTY

Commentary

The prisoner was committed for trial as ‘ Emma Smith (Alias Cox, Clarke)’ (VPRS Series 30P Box 186 – NCR 75).

Willis has noted the wrong date and the trial was on 15 March 1843

‘ took her into custody for robbing Mr Clayton of £5-14/-‘ – there is a note on the fold of these depositions ‘Is Mrs Clayton married’. Probably she was and accordingly any money she had was legally the property of her husband and the Information would have alleged that fact.

Redmond Barry made an ‘able defence’ discrediting the principal witness. ( Port Phillip Patriot 16 March 1843)

49. Transcript of Trial of Charles Duncan for embezzlement

Willis Note Book No 14 page 117

15 ^th April 1843 (March)

Charles Duncan – Embezzlement

Elects to proceed on first count as servant

2 ^nd count larceny as a servant

3 ^rd count common larceny

P Stapleton Sworn –

I know the prisr I took him into custody on Saturday by virtue of a warrant from police magistrate.

Frederick James Houghton – sworn

I know the prisoner he was in my employment – a baker – he carried out bread, delivered bills and received the money I had a customer of the name of Quinn I have prisr to receive money from her I gave him a bill to procure payment – prisoner deied having received the money 8/8d he said he had not got the money and made various excuses I never received Mrs Quinns bill

X

Ann Quinn sworn

I know the prisoner he served the house with bread I paid prisr on account of Hordon more than five shillings on Tues 7 ^th inst

Fred J Haughton – recalled

GUILTY

6 months

Commentary

Willis has noted the wrong date and the trial was on 15 March 1843. In 1843 ‘Tues 7 ^th inst’ was in March.

The Information charged both Embezzlement and Larceny – Willis said James Croke had to elect on which count he would proceed. Croke argued he didn’t have to elect as a matter of law and cited authority (which is not given in this newspaper report). Willis insisted on election so Croke elected Embezzlement ( Port Phillip Herald 21 March 1843)

Croke cited R v Johnstone in the argument about election between counts. ( Port Phillip Patriot 16 March 1843)

50. Transcript of Trial of Thomas Williams for Larceny

Willis Note Book No 14, page 118

Thomas Williams – Larceny

PLEADS GUILTY

April 16 1843 (March 16)

6 MONTHS IMPRISONMENT

Commentary

Willis has noted the wrong date and the trial was on 16 March 1843.

Williams had stolen clothing, cutlery and blankets from the Royal Highlander in Queen Street.

Williams is recorded as ‘Free’ in the CRB.

51. Transcript of Henry Pendergast and Patrick Nesbitt for Assault

Willis Note Book No 14 page 119

April 16

Patrick Nesbitt – Patrick Prendergress – Assault

Patrick Nesbritt – pleads guilty

Prendergress pleads guilty

Defendants not the originators of the affray

ONE MONTH IN PRISON

52. Transcript of James Hyland for Assault

April 16

James Hyland – Assault

pleads guilty

Commentary

Willis has noted the wrong date and the proceedings in both cases were on 16 March 1843

It is not clear who these men were charged with assaulting. The depositions relate to incidents which occurred in or near George Vinge’s Golden Fleece in Bourke St on two nights in March 1843.

At the committal proceedings, George Vinge swore that on Wednesday night (1 March 1843) about 8 o’clock the three prisoners came into his tap room saying they were Irishmen and what had the English to say about them. A cripple was standing on a form to get out of their way when Nesbitt knocked him down with his fist and then he and Prendergast jumped on him. A general row then took place; there were more than 40 people in the room at the time.

On the Thursday night (2 March 1843) Hyland and Prendergast came again into the long room which was again full of people and another row was commenced in which Hyland and Prendergast aided and assisted; the latter had a brick bat in his hand and he and Hyland tore down the window frame. Nesbitt was not there. Prendergast violently assaulted a man on the ground kicking him. Men named Henry Rankin, Isaac Hoare and Lewis were injured. On the Thursday night Rankin heard ‘Hurrah for Tipperary’ and other cries during the time of the disturbance.

Prendergast and Nesbitt appear to have been jointly presented and pleaded guilty; both were sentenced to imprisonment for 1 month with hard labour. Hyland also pleaded guilty and was fined £6 and to be imprisoned until the fine be paid.

Barry referred to incident as an ‘election squabble’. (Port Phillip Herald 21 March 1843)

There were elections for the Melbourne Corporation about this time.

All three prisoners are recorded as ‘Free’ in the CRB.

53. Transcript of Trial of Warree for Stealing sheep

Willis Note Book No 14, page 120

April 16 Warree- Aboriginal – stealg sheep

Not at present of sufft

Capacity to understand the nature of the Proceedgs

Commentary

Willis has noted the wrong date and the proceedings were on 16 March 1843.

The name of this Aborigine is given as Warree, Warry or Warrie in various documents.

‘Capacity to understand the nature of the proceedgs’ – this is the way Willis recorded that the issue of whether Warree was fit to be tried was determined by a jury as was customary in most cases involving Aborigines.

On 16 March 1843 Le Soeuff, the Assistant Protector, was not present to act as interpreter having been bitten on arm by a dog but the jury found Warree unfit to be tried as he could not understand proceedings; he was remanded (Port Phillip Gazette 18 March 1843)

On 20 March 1843 Croke wrote a letter (no addressee) seeking an interpreter for this case.

On 30 March 1843 Croke wrote a letter (to La Soueffe) seeking an interpreter for this case (VPRS Series 21 Unit 1).

On 6 April 1843 Willis wrote to La Trobe enclosing a long letter of 4 April 1843 from Le Soueff about this case; Le Soueff complained that he had a letter from Robinson instructing him to attend trial on 6 April but that he was too ill to attend and complaining about being both Magistrate and interpreter. (VPRS Series 19 Unit 44)

On 7 April Warry was discharged into custody of Thomas, the Assistant Protector, as it was impossible to instruct him about the nature of a trial. (Port Phillip Gazette 8 April 1843)

He refused to stay with Thomas at Yarra Bend (Clark: A Bend in the Yarra p. 45) but see Curr (below)

E M Curr refers to this case in a Recollections of Squatting in Victoria Ch XVIII pp 190ff. It is probably an exaggerated account. Curr makes it clear that, prior to being taken to Melbourne, it had been suggested to Warry that he would be hung in the presence of the Governor (see also Curr pp 204-06).

54. Transcript of Trial of Phoebe Watts for Forgery

Willis Note Book No 14, page 122

Criminal Sessions

April 7 1843

Phoebe Watts – Forgery

J.G.Leslie Forster Esq sworn

Order produced by prisr. I saw her their for the first time Mr Evans was with her for the first time. Mr Evans with her one of the two I think the woman presented it to me she said that Evans had made advances of it. I first looked at the signature I said this is right if you will follow me into the house I will pay you Evans followed me. The order is not the hand writing of my overseer Cox

Mr Evans Sworn

I am a publican I live in Collins Lane. I know the prisoner she resided in my house latter end of Nov or beginning of December. The prisr gave it to my wife my wife to me prisr gave it to me to give to Mr Forster I advanced money (?) for the order produced as well as on other (?) orders

? Evans Sworn

I know the prisr in Decr last prisoner lodged with us I can not swear to the orders but I swear that I gave three orders prisr gave me to my husband.

Evans recalled

I swear he recalled the order produced from his wife

XXd

You ? me ? went every day to seek Mr Forster

Mr Cox Sworn

I am overseer to Messrs Forster proved the order to be a forgery

Per Jur

Prisr was ? with Messrs Forster when I was for a few months at the station (case)

Prisr puts in written defence

GUILTY TR FOR LIFE

RECOMMENDED TO MERCY

Commentary

Late in 1842, Phoebe Watt commenced to stay at William Evans’ Builder’s Arms Inn in Collins Lane and told Anne Evans of ‘her husband being in gaol’. A short time later, William Watt (Watts) arrived and within a few days Phoebe bought an order for £27 on Foster signed by William Cox and obtained cash for it.

The ‘written defence’ was read to the court by some court officer. She said she was married for 3 years and lived in the bush and that her husband knew nothing of the order. (Port Phillip Herald 11 April 1843)

Watt is recorded in the CRB as ‘Free’.

In April 1843 Phoebe Watt was sent to VDL (VPRS Series 19 Unit 45)

On 8 June 1843 the Colonial Secretary of VDL wrote to La Trobe that she had arrived safely (VPRS Series 19 Unit 46; see William Watts, below)

55. Transcript of Trial of John Lloyd Smith for Forgery

Willis Note Book No 14 page 124

April 7 ^th

John Lloyd Smith – Forgery

Pleads guilty

TR FOR LIFE

Commentary

At the committal proceedings, the draper, Isaac Lazarus Lincoln, swore that he cashed an order for £22-10 on the Sydney Bank of New South Wales purporting to be drawn by G Hill in favour of John L Smith and endorsed by the latter. It was returned as a forgery. He also cashed an order for £8 on the Union Bank purporting to be drawn by J L Smith (the prisoner). It was returned ‘no funds’. 9 VPRS Series 30P Box 2 1-20-2)

Smith is recorded in the CRB as FS.

Willis said he knew of the prisoner in Sydney where he had been in trouble. In a written plea, the prisoner said he had a wife and 5 children and had been in the Colony for 12 years and been of good conduct. He sought mercy. Port Phillip Herald 11 April 1843)

On 20 May 1843 the Colonial Secretary wrote to La Trobe that the Governor would not remit the sentence of John Lloyd Smith (VPRS Series 19 Unit 45).

56. Transcript of Trial of William (John) Manuel alias Ferguson for escaping from transportation

57. Transcript of Trial of John Robinson for aiding and abetting

Willis Note Book No 14 page 125

April7 1843

John Manuel – escaping from transportation

Pleads guilty

John Robinson pleads not guilty

PARDONED Mr Barry objects

DEATH recorded against Manuel

Mr Barry objects that before the prisoner Robinson was in charge of the jury the Crown Prosecutor had prayed the judgement of the court and that the sentence of death was recorded on Manuel wherefore the original sentence was not in force and the INDt could not be used against the prisoner Robinson

Mr Croke- Local Act of 3 & 4 William No 3 Sect 35 – 1832 indent

H.H. Kinton proves record of conviction

George Lovel Sworn

? Inspector of water police I found Manuel on board Jemmima in Hobson’s Bay – near the jetty at Williams Town not being satisfied with Manuel’s answers I asked for his certificate of freedom he gave me a paper that might have been so but illegible in questioning Manuel Robinson said “O he is alright I can produce 3 o 4 people on Melbourne to show he is a free man “. I brought Manuel to town and offered Robinson a passage to prove whether Manuel was free or not

X

I first asked Manuel if he were free he said he was – produced the paper which was illegible – I did not threaten this man – Robinson came voluntarily forward to state Manuel was all right – both the names of Manuel on the ships papers. Manuel as William Ferguson

Charles Brodie sworn

On the 21 March I was at the racecourse I went to Melbourne and was shown two men taken up on suspicion of being runaways. Prisoner was one Manuel calling himself Ferguson the other I said prisonr was free having examined his certificate- he was let go Manuel was brought into the office he said he was William Ferguson a free man – Manuel said Robinson cold prove he was free. Robison said he had known Manuel was free these two years and there were two or three persons in town could prove the same. I told Robinson from the fact of his saying Manuel was free I should keep him until I was satisfied

X

Samuel said he had been in this colony free two years from V.D.Land

Robt H Bunbury Esq sworn

Superintendent of Water Police I examined Ferguson – prisoner came in to the office while Ferguson was there – Robinson stated he had known Ferguson to be free for two years and could bring 3 or 4 persons in Melb who knew him to be a free man.

William Henry James sworn

I command the Jemmima 21 ^st March last I know the prisoner he took a passage for himself and afterwards for another man named Ferguson it was for Ferguson who was at the bar of this court this morning

X

three in company agreed to give £15-5s each – Manuel one – they had not the money – Robinson said he would pay down £5 he did so – I got the money from prisoner a second £5 from Robinson for Manuel

CASE

Mr Barry objects that the conviction is not proved in as much as rhe record as not complete in consequence of being merely composed of the mins of the proceedings of the criminal court and could not entered as a permanent rule of the court.

Rev v Bellamy

1, Ryan < Moody 121 < Jones v Randall Cowper 17 ?

I overruled the objection stating that the record produced was not a minute of the court but the only record of the court and similar to the records of conviction in the Supreme Court of N.S.W.

Mr Barry further objected that the record was not authenticated by the proper office of the court

VERDICT

GUILTY

MR IN ARREST OF JUDGEMENT

CONVICTION OF MANUL NOT PROVED – NOT SUFFICIENT THOUGH HE PLEADED GUILTY – OVERRULED

Objects to a vehement in information of order of transportation from ?? is not possibly proved as the former sentence has been annulled and the proper conviction not proved

Accessary. Whether sentence is to be 7 & 8 Co 4 C.20 or under 4 & 5 William 4 C 77 amended by 5 GEO 4 Ch 84 S. 22. I think as the act Wm relates to an escape from transportation it affect this colony as much as if expressly named – sentence reserved

J.W.W.

Commentary

Manuel is recorded in the CRB as ‘Bond’ and Robinson as FS.

The sentence of ‘DEATH recorded’ rather than ‘passed’ was permissible by legislation. It was to allow the trial judge formally to indicate to the relevant authorities than the prisoner should not be executed

The judges in Sydney decided these men were erroneously convicted and they were then pardoned (VPRS Series 19 Unit 44) – La Trobe informed Willis of this decision by a letter of 15 ^th May 1843 (VPRS 16 Unit 3 Page 509)

The ground of the decision in Sydney was that Manuel had not escaped from transportation – which was a felony – because he was still in NSW. He was an absconder which was a misdemeanour. Further the note of Manual’s conviction on the Information was not a “record” and could not be used, nor could the “indent” which was not original. (Willis documents in RHSV Box 55; see Mullaly pp. 686-8)

58. Transcript of Trial of Michael Flannigan for forgery

Willis Note Book No 14 page 129

April 7 1843

Michael Flannigan – Forgery

Plea not guilty

ACQUITTED

Commentary

At the committal proceedings, Lewis Davis swore that the prisoner purchased goods from him, in Geelong on two occasions and produced a cheque on the Union Bank of Australia for four pounds twelve shillings and six pence drawn by a Wm H Caldwell. He sent it to Levy, his agent in Melbourne, and it was returned marked ‘no account’.

In April, Croke lead no evidence but the prisoner was remanded on other charges and bailed (Port Phillip Patriot 10 April 1843). The surviving material does not provide any indication as to why James Croke abandoned the case nor whether Flannigan was ever charged again.

59. Transcript of Trial of George Galloway for Larceny

Willis Note Book No 14 page 130

April 8 1843

George Galloway – Larceny

Pleads guilty

TR. 7 YEARS

Commentary

Galloway, who is recorded in the CRB as FS, was sent to Melbourne by Henry Leslie Prentice with a dray and was then discharged from service. He stole property from the dray – blankets, stock whip, dog chain.

60. Transcript of Trial of Joseph Simmons; Charles Birch for Larceny

Willis Note Book No 14 page 131

April 8 1843

Joseph Simmons, Charles Birch – Larceny

George P.A.Greaves Sworn

I live at the River Exe I know the prisoner. Identifies the property

X

The prisoners were in my house the evening before I missed the property – there were other bullock drivers in the house also. The other bullock drivers were close to the house. I searched the bags close to the house without finding my property. I went in another direction and overtook the prisoners and found my property on their dray – there were men women and children besides the prisoners at the dray – the property was partially concealed not in the habit of borrowing yokes without leave – at the time the prisoners had bullocks of their own

James Wood Sworn

I am the bullock driver for last witness – identifies property. I saw the property on Thursday night at Mr Greves house and missed them the following Saturday. I saw the prisoners at Mr Gs about 6 or 7 on Thursday. I found the property on prisoners dray partially concealed. I found the property in possession of the prisoners on the dray. They desired me to look on the bullocks knecks and I said I would look on the dray. I looked also for a book and a jacket which we lost

X

they said if the property was Mr Greaves he must take it away

B Mullins sworn

I knew the prisoners I saw them at the EX I saw the men go away at 6 o’clock in the evening I think

X

I heard the men say the bowes (?) were at the left side of the bridge.

Case

NOT GUILTY

Commentary

The ‘River Exe’ was also known as the Werribee River.

61.Transcript of Trial of William Watts for Forgery

Willis Note Book No 14 page 133

April 8 1843

Wm Watts – Forgery

Plea not guilty

William Evans – sworn

I keep the public house in Collins Lane. The prisoner was in my house latter end of Dec or beginning of Decr I got the orders from my wife – she acted for me during my absences. I advanced £40 on them (£15-10-5) I presented it to Mr Foster – he said it was a forgery

Ann Evans sworn

I gave the orders I got from Wm Watt to my husband. Prisoner was only present at the time I gave the £15order to my husband. I gave Wm Watts £5 in the presence of the prisoner when I received that order

NOT GUILTY

Commentary

See Phoebe Watt (above)

When Watts was acquitted Wintle, the gaoler, said he was illegally at large; Watts denied this and the matter was referred to the Police Office. (Port Phillip Herald 11 April 1843)

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