The Chronicles of Early Melbourne/Volume 1/Chapter 27
CHAPTER XXVII.
REMARKABLE SUPREME COURT TRIALS.
SYNOPSIS:— Non-Abolition of Deathfor Forgery. —Alexr. Wilson, First Forger Transported for Life. —Thomas Leahy, the First White Murderer, Transported for Life. —D. C. Simson, Perjury, Acquitted. —D. C. Simson and Others, Fraud, Acquitted. —Sergeant O'Neill, First Breach of Promise, Damages £100. —S. G. Bolden, Murder of a Native, Not Guilty. —Murder by Aboriginals, Sentenced to Death. —Bushrangers Captured by Gentlemen Volunteers. — Williams, a Bushranger Killed, Gourlay and Fowler Disabled, Prisoners Condemned to be Executed. —Postscript: —Death of Notable Colonists. —The Murder of Mr. Codd, Figara Alkepurata, alias "Roger," Sentenced to Death. —First Criminal Libel, Marshall v. Arden. —The First Trial for Rape, John Taylor Transported por Life. —Murder of Mr. Francis at the Pyrenees, John Connolly Transportedfor Life. —First Civil Libel, Leadbetter v. Cavenagh. —False Imprisonment, Kerr v. St. John. —Murder of an Aboriginal Woman, Discharge of Prisoners. —False Imprisonment by a Judge, Ebden v. Willis. —Anthony H———n v. Cavenagh for Libel. —Conviction of a "Gentleman Rowdy," Mr. Henry Wheeler Imprisoned and Fined. —A Magisterial Horse-Whipping, M'Crae v. Foster. —"Jacky Jacky" Condemned for the Murder of an Aboriginal Boy. —"Jack the Sawyer" Condemned for Attempted Murder of fohn Buchannan. —Stephen v. McCombie, Libel. —Nigolobin Acquitted of Murder. —Patrick W———h, alias "Patricius Paddy" Acquitted of Fraud —William V. M'Vitie, Indicted for and Acquitted of Embezzlement.
Forgery.—26th April, 1841.
IN consequence of the non-adoption of the Imperial Act, 1st Vict., abolishing death as a punishment for forgery, this was the first capital felony tried in Port Phillip. The prisoner, Alexander Wilson, was indicted before Judge Willis and a jury of twelve, for having, on the 20th February, forged and uttered a cheque on the Union Bank at Melbourne. The prisoner went with a Mr. Lake to the Bank, and the latter filled a cheque, which the prisoner signed as a marksman for one Daniel Dudley, whom he personated. The cheque was paid, but it was afterwards ascertained to be a forgery. The prisoner was undefended, found "Guilty" of uttering, and sentence of death recorded, the Judge intimating that, in consequence of the state of the law, he should recommend a commutation of the sentence to transportation for life, and transported Wilson was eventually.
The First Wife Murderer.—15th May, 1841.
On the 16th November, 1840, Thomas Leahy killed his wife, Sarah, at Portland. They were lodgers at the house of A-horne, a Chinaman, and Leahy, returning home drunk, quarrelled with his partner, and, snatching up a bayonet, stabbed her with it in the right breast. She died in a quarter of an hour, after being attended by Dr. Byers. The Judge assigned Mr. Brewster as Counsel for the defence. The most material evidence for the Crown yvas the Chinaman, and this was the first time that a Celestial appeared in Court in the character of a witness. A difficulty arose as to how the oath was to be administered to A-horne, and after some confabulation on the subject, "John" solved the difficulty by declaring that the breaking of a saucer ordeal would be binding on his conscience, and "makee him speakee de tloot." The Judge ordered his tipstaff to hunt up one of the tea-drinking utensils, but the official, after much delay, returned yvith a soup-plate as a substitute. This led to a legal hitch, as there were grave doubts whether soup would be as binding on "John's" conscience as tea or coffee; and after a serious consultation between the Judge, the Crown Prosecutor, the prisoner's Counsel, and the Sheriff, "John" cut the Gordian knot by asserting solemnly that he would "speakee de tloot" on the plate. Judge Willis looked at him sternly, and requested to be informed in what manner the Chinaman believed the ceremony he was about to go through would bind him; and "John," without hesitation, let the Judge know that if he ("John") told a lie the devil would break up his body and soul as he smashed the soup-plate. The Judge was satisfied, the witness went into the box, dropped the soup-plate on the floor, and declared he would not fib. This was a clincher. The Judge bowed his acquiescence of what certainly cannot be called "irrefragable" logic and received the testimony. The defence set up was that the prisoner was so drunk at the time as to be utterly oblivious of what he did. In charging the jury the Judge put the case as one of murder or nothing; and as for manslaughter, any notion of that kind was to be discarded from their consideration. As to drunkenness, he thought it should be treated as an aggravation, instead of an excuse. The prisoner was found "Guilty," and the Judge, putting on the fatal black cap, (a custom now obsolete), passed sentence of death without hope of mercy. This announcement was received by the prisoner without any visible emotion. In the condemned cell, and heavily ironed, the unfortunate wretch was suffered to remain, as if swinging between life and death, for nearly three months; for, through the unaccountable indifference of the officials in Sydney, the warrant for execution was deferred from week to week; yet to this seeming inhumanity the culprit was indebted for his life, because the Judge, moved by the delay, strongly represented to the Executive that the extreme sentence ought not to be carried out, after all the acute agony the convict must have suffered. Strange to say, the Judge's missive for mercy, and the death warrant, passed each other on their diverse journeys. It was not until the 31st July that the fiat arrived, appointing the execution to take place on the 13th August, an interval which fortunately gave time for a reprieve to be received in response to the Judge's recommendation. The punishment was commuted to transportation for life.
Perjury.—17th July, 1841.
D. C. Simson was arraigned for perjury, arising out of an affidavit exhibited in Chambers on the 13th July, and was an ex-officio information filed by the Crown Prosecutor, by whom the prosecution was conducted, Mr. Barry appearing as Counsel for the defence. The traverser was a member of the firm of Messrs. Dutton, Darlot and Simson, settlers, who were indebted to Messrs. Willis and Co., and proceedings were taken to recover on a bill of exchange for £1000. A process of the Supreme Court issued, to which defendants did not appear, and judgment went by default. A summons was then obtained to set aside the judgment, in support of which the traverser made affidavit that he had never been served personally with any process, nor was any original shown to him. The affidavit was sworn before Mr. Gurner, the Deputy Registrar, and Mr. Robert Cadden (for many years afterwards Clerk to the District Court) clerk to the solicitor of Willis and Co., swore positively that he had served the traverser, in person, with a copy of the Court summons, exhibiting at the time the original, and leaving a duplicate copy for Darlot, one of the other partners. The defence was an inpugnment of Cadden's testimony, and a coloured servant, in traverser's employ, testified that it was to him Cadden delivered two law documents during Simson's absence, which he (the servant) handed to a Mr. Steinforlh, at the time staying at Simson's. The jury returned a verdict of "Not Guilty." In the next issue of the Port Phillip Gazette the Judge was roundly charged with gross partiality in his conduct of the case, whereupon the editor (Arden) was sent for, cautioned by the Judge to be more circumspect in future, and not to forget that there were such things as "attachments."
Conspiring to Defraud Creditors.—20th August, 1841.
D. C. Simson, J. M. Darlot, and H. N. Simson, were indicted for conspiring, by means of a mock sale, to defraud the creditors of W. H. Dutton, one of the partners of the firm of Dutton, Simson, and Darlot. The Crown Prosecutor and Mr. Barry being retained for the prosecution, and no other Barrister being available for the other side, by the permission of the Judge, Mr. F. L. Clay, an Attorney, appeared for the defence, and was complimented from the Bench. This case, from the social position of the defendants, excited no common interest, and the verdict was received with very mixed feelings. Several witnesses were called to prove the sale of certain property to H. N. Simson. Dutton, Darlot, and D. C. Simson were in partnership, and their transactions in stock and other valuables extensive. Simson and Darlot had dissolved with Dutton, and disposed of considerable property without the consent of two trustees, who ought to have been consulted. A bill in equity was filed to restrain the sale, but it miscarried through a technical error in the drawing, and the property was sold to H . N . Simson. On behalf of the defendants it was contended that the sale was bona-fide, and the jury acquitted them.
The First Breach of Promise.—17TH November, 1841.
In this case the defendant was a Sergeant O'Neil, a swell member of the police force, and the keeper of the lock-up at Melbourne. The plaintiff was a Miss O'Gorman, the sister-in-law of another limb of the constabulary. Damages were laid at £300, against which was pleaded the general issue, and a plea of special matter as to the loose and immoral character of the plaintiff. Counsel for plaintiff, Mr. Barry; for defendant, the Hon. Mr. Murray. The plaintiff resided with her sister, a Mrs. Morgan, a constable's wife; and the defendant was a lodger in the house of his comrade. Thus the parties were constantly brought together, and a mutual attachment was contracted. The question was in due time "popped," the gay and gallant sergeant was accepted, and the preliminaries of the marriage expedited. Father Geoghegan Roman Catholic pastor, was engaged to tie the nuptial knot. The services of a Miss Britton were secured for the interesting office of bridesmaid; and even a man-cook was got in to prepare the hymeneal repast. The day was named and came, the bride and her handmaiden were in readiness, and they came; the bridal feast was well under weigh; but the principal figure in the domestic drama did not appear, and an adjournment sine die was unavoidable. On being called to account for his backsliding, O'Neil had the unmanliness to declare that he could not think of marrying without a fortune, and would not take less than £50; and so to raise this sum Mrs. Morgan disposed of some cows and bedding. O'Neil again backed out unless the dower was increased to £100; and, being urged to be a man to his word, vowed "he would hang by the hair of his head first." His conduct was the more disgraceful as it was proved that by the promise of marriage the girl had been seduced. Evidence was given as to the defendant's means; he was reputedly worth about £400, and had been heard to declare "that through his watchhouse perquisites he sometimes cleared as much as £30 in a week." For the defence it was alleged that the plaintiff was of improper character, and that Morgan (who had some time previously retired from the police) had kept disreputable houses both in Little Bourke Street and Geelong. The summing up was favourable to the plaintiff, to whom the Assessors awarded £100 damages.
Murder of an Aborigine.—21ST December, 1841.
Sandford George Bolden, a gentleman, and personal friend of Judge Willis, who had been out on bail, surrendered to take his trial for having, on the 23rd of October, shot at, with intent to kill and murder, a certain aboriginal native known as Totkeire. The prosecution had been instituted at the request of Mr. G. A. Sievewright, the Assistant-Protector of Aborigines for the Port Fairy district, and was conducted by the Crown Prosecutor, Mr. Barry appearing for the defence. The theory sought to be established on behalf of the Crown was that the prisoner, a station-holder near Port Fairy, was out riding with his brother and two stockmen mustering cattle, when they met with the deceased, a black woman, and a black child. The prisoner charged the blackfellow and shot him in the stomach. Finding himself wounded, the blackfellow made for a waterhole and jumped in, whilst the prisoner, after giving instructions to his companions to secure the aborigine if he attempted to escape out of the water, went back to the homestead for some ammunition. As the prisoner was returning he fired a second time and killed him, and rolling from a log the body disappeared in the water. There was no positive evidence of the death; but the Assistant-Protector swore that the blackfellow was missing since the occurrence. The defence was that the aborigines in the neighbourhood of the station were both troublesome and thievish, and some short time previously had speared several of the prisoner's cattle. On the day in question, the aborigine alleged to have been killed, in company with a lubra and picannini, made his appearance on the station; and as the blackfellow was armed with a spear, a couple of clubs, and a shield, there was reason to apprehend mischief. The prisoner ordered them off, when the blackfellow both pointed a spear and aimed a blow at him, which was only averted by the prisoner quickly swerving round with his horse, and then it was that the first pistol was discharged. When prisoner fired the second shot it was averred that the blackfellow was in the act of assaulting a stockman. It was further submitted that there was no felonious shooting, and that it was customary to discharge firearms to frighten the natives; that there was no proof of the pistol having been loaded with ball; and if so, that the firing was in self-defence; and finally,that there was no proof to show that any death at all had ensued. After a charge so favourable to the prisoner as to amount to marked partiality, the jury returned a verdict of "Not Guilty," and the Judge expressed strong disapproval of the action of the Crown Prosecutor in filing an information in such a case, and so unnecessarily wasting the public time. The Crown Prosecutor curtly replied that in the performance of his official duties he should always exercise his own discretion, whereupon the Judge angrily retorted that he should take an early opportunity of representing the matter to the Executive Government. Mr. Bolden was released from custody, and warmly congratulated by a number of his friends in Court.
Murder of White Men by Blackfellows.—20th December, 1841.
On the 26th September a party of whalers were at a place on the Western Port Coast, then known as Lady Bay, which they left, and travelling through the bush until the 6th October, reached a coal-mining station at Cape Patterson, of which one William Watson had charge. The whalers possessed themselves of what they thought was an abandoned hut. Its being untenanted surprised them, and after a time two of them were sent as scouts to discover something of the people supposed to be attached to the station. Their names were Cooke and "Yankee" (as the second was called), and soon after their departure those who remained heard the report of two gun-shots. About an hour after, a William Watson (in the employ of Anderson and Massie), who had charge of the place returned, and was astonished to find his residence "jumped" by a lot of sailors. He had seen some black people prowling about the neighbourhood for a few days, and was fearful that something wrong had happened. A man named Patrick, also in the service of Anderson and Massie (who accompanied Watson), volunteered to try to solve the mystery, and after a brief absence he rushed back and reported that he had found the dead bodies of two white men only some three hundred yards off. The Yankee was shot as if a bullet had passed through his head. Cooke had a shot wound in his side, and his head was battered as if beaten with a cudgel of boxwood, portions of which as big as a man's fist were found close to him. The two bodies were buried in a sand-gully above high water-mark. Some days before this, intelligence had been received in Melbourne that armed blacks were committing depredations in the Western Port District, and Mr. F. A. Powlett, (a Commissioner of Crown Lands) started with a party of the Border Police and a few soldiers in quest of the marauders. On his route he heard of the white men's murder, and, following up a clue received from a native, swooped down upon a mia-mia containing two male and three female blacks, and took the five into custody. The men blacks took their capture quite coolly, and the women did as ladies generally do in any trouble great or otherwise, have a good cry, and with much unintelligible volubility cast all the blame upon the men. One of the prisoners known as "Bob," declared that the other, "Jack," had fired the first shot, and threatened to shoot him if he did not fire too; and one of the women, "Truganini," asserted that she had seen " Jack" brain one of the dead men. The prisoners were arraigned at the Criminal Sessions under the names of Robert Timmy Jimmy, alias " Small-boy," Jack Napoleon Tarraparrura, Lalla Rookh Truganini, Fanny Waterfordia, and Maria Matilda Natapolina. The male prisoners were natives of Van Diemen's Land, could read and write, and had some knowledge of the principles of religion and the existence of a Supreme Being.
Mr. G. A. Robinson, the Chief Protector of the Aborigines in Port Phillip, deposed that "Bob" and "Jack" had been attendants of his in Van Diemen's Land; he had found them to be always dutiful and trustworthy, and gave them a very good character.
Mr. Barry, Counsel for the prisoners at the opening of the case challenged the arraignment, on the ground that the prisoners, not being naturalized subjects, were entitled to be tried by a jury of half aliens, which the Sheriff had not summoned. After hearing arguments as to the Aboriginal right to a jury de medietate linguæ, the Judge overruled the objection but he should enter it upon his notes. Mr. Barry addressed the jury in a very effective manner, but the evidence he had to contend with was irresistible. He dwelt forcibly on the unreliability of circumstantial evidence, and the weakness of the prosecution against one of the men, who had acted under compulsion. The jury found the men "Guilty," and acquitted the women, but they recommended the former to mercy because of their good characters, and the peculiar circumstances of the case. What the "peculiar circumstances" were, the foreman did not specify. The men were remanded for sentence until the next day; and the women, after being discharged, were handed over to the care of the Protector of Aborigines. When brought up for judgment, Mr. Barry moved for a writ of error on behalf of "Bob" and "Jack"; but Judge Willis held that such a process would not lie; and His Honor, in a few observations of much feeling, sentenced the prisoners to be hanged, and held out no hopes that the jury's recommendation would have any effect. The prisoners listened to the Judge with apparently much emotion, and when he concluded, large beads of perspiration spotted their cheeks.
BUSHRANGERS CAPTURED BY GENTLEMEN VOLUNTEERS.—11TH MAY, 1842.
In the early part of 1842, there yvas a lodging-house in Little Flinders Street kept by a person named Seymour, yvho yvas not over particular as to the character of those yvho put up at his place. Money yvas their passport; and so long as they possessed this, little yvas cared about whence they came, or yvhere they went; and, as a consequence, his customers were often a very questionable lot—more black than yvhite sheep amongst them. There casually met at this doubtful rendezvous, four men, tyvo of w h o m yvere mere youths and the others in the prime of life. They yvere all able but unwilling to yvork ; preferring to wait for something to turn up, and not over particular as to what that something might be. Their names yvere John Williams, Charles Ellis, Daniel Jepps, and Martin Fogarty. Seymour had a son-in-layv named William C a m — a m a n of somewhat equivocal reputation; in fact, what is knoyvn in thieves' slang as a "fence"; a scoundrel yvho puts up others to commit crime, and shares in the profit without risking the danger. A bushranging expedition having been planned, C a m was to be a sort of adviser and receiver of the booty, and the others to take to the highyvay, or rather to the bush. All their arrangements being duly made, C a m and his co-" rangers " withdreyv to the country, and toyvards the close of April, the people of Melbourne yvere alarmed by the report of the perpetration of several daring robberies at and about Dandenong. At this time the settlers' residences were mostly little more than large log, paling, or slab huts, roofed with bark or thatch, and the sticking up of such premises yvas a comparatively easy task for armed men.
The gang provided themselves yvith horses, arms, and ammunition, by surprising the overseers on a couple of stations yvhere they found plenty of cash. O n e day, at the place'knoyvn as " N o Good Damper," near Dandenong, they came upon Captain Gwatkin, the well-known master of a colonial trader, and Mr. Frederick Pittman, a Melbourne merchant. The two gentlemen were taking an airing in a gig, yvhen they yvere ordered to pull up by the four robbers. They gave their names, vacated their vehicle, stripped off their clothes, according to orders, and the handsome takings of £ 6 3 is. 8d. were realised out of the skipper's vestments; but Pittman, had little or no money about him. T h e robbers, then unharnessing the horse, appropriated it ; and by an amusing perversion of fair play, gave Pittman, from w h o m they took hardly anything, afive-shilling-pieceof the captain's cash, but yvhen the skipper asked for a little of his own pocket-money, they ordered him " to shut up, or they'd blow his brains out," T h e same evening they called at a Mr. L a Mann's and at tyvo or three other places, yvhere they helped themselves to saddlery firearms, jeyvellery, and money; and, so far, their nefarious game commenced flourishingly. T h e same day intelligence of the outrages reached Melbourne; and in such times, it must be borne in mind, there yvere no such things as telegraph yvires, railways, or even passable roads ; and bush travelling in yve weather, even to persons well-mounted, yvas often a slow, difficult, and dangerous yvork. Mr. Powlett, the same Commissioner of Croyvn Lands yvho hunted out the Western Port black murderers, lost no time in getting a party together to commence pursuit. There was himself as leader, yvith Mr. John Barker (the present Clerk of the Legislative Council), Mr. Robert Jamieson (long since dead), Mr. William Wright, ("The Tulip," ex-Chief-Constable), Captain Dana, and three of his black mounted police, soon in the saddle, and scouring the country after the scoundrels. T h e gang, however, doubled back, and, retreating upon the C a m " receiving-house," refreshed themselves, afterwards crossing the Yarra at Anderson's Creek, and commenced operations in the Plenty country. Williams was the recognised leader of the gang, and possessed a good knowledge of the country. They were well-mounted, and armed yvith double-barrelled guns and pistols. O n the 28th April they " bailed u p " the several stations of Messrs. Sergeantson, Bond, Peat, Langor, Northcote, Bear, Fleming, Rider, and Captain Harrison, and secured a large booty, consisting of a considerable sum of money, gold and silver watches, gold chains and other jewellery. At nightfall they camped in the bush not far from the house of Mr. Bear, one of the places they had plundered. Next morning, before nine o'clock, they robbed the homesteads of Messrs. Wills, Sherwin, and Roland. They next proceeded to the station of Mr. Campbell Hunter, and leaving their horses at a fence a short distance off, rushed the house, or rather hut, where, at breakfast they surprised the following gentlemen :—The proprietor, Dr. Grimes, and Messrs. Smeathman, Rumbolt and Boswell. Williams stepped forward, and, with the politeness of a Frenchman, intimated to the astonished inmates " that they yvould have the goodness to m a k e yvay for their betters;" they then marched the ex-breakfasters outside, placed them standing backed up against a fence, yvhere Jepps kept guard, with a pistol at full cock and ready to shoot thefirstm a n yvho moved either tongue, foot, or finger. T h e others, re-entering, sat doyvn to the table and proceeded to execute hungry justice on the comestibles. Whilst the robbers are so enjoying themselves, I shall ask m y readers to accompany m e back to the Club House in Melbourne (noyv the Union Club Hotel, corner of Collins and Market Streets). About four o'clock on the afternoon of the day preceding the "breakfasting" event just recorded, the Superintendent of the Province, Mr. Latrobe, yvas at the Club House conversing yvith half-a-dozen members of the Club, when a m a n on horseback galloped excitedly up the street. This person was a mounted messenger, despatched from the Plenty with instructions to report the daring outrages at the Police Station, then situated at the south-western corner of the Market Square, n o w the Western Market. Knowing Mr. Latrobe, he pulled up as he passed, and communicated the startling intelligence to him. His Honor yvas m u c h concerned at the news, and, after recounting the circumstances to his friends, said:— " Look here, Foyvler! the fact is those fellows will never be taken unless some of you do it. W h y not get up a party amongst you squatters, and start at once in pursuit?" T h e person he addressed was Mr. Henry Foyvler; and others, if not all of those w h o aftenvards volunteered, yvere by. T h e suggestion took; yvas acted upon instanter; and when Mr. Latrobe said he yvould supply horses and firearms, the "gentlemen squatters " declared they could equip themselves, a«d set about doing so without loss of time. If they had not done this, there was no police officer in toyvn capable of commanding a mounted search party, and there is no telling to yvhat excess a long immunity might not have induced the bushrangers to go. An adjournment to the Club parlour took place, where a hasty " Council of W a r " yvas held, and the outcome yvas that five brave m e n volunteered to turn out yvithout delay, start in pursuit of the bushrangers, and either capture them dead or alive, o r — b e killed themselves. These amateur heroes yvere Messrs. Henry Fowler, Peter Snodgrass, Robert Chamberlain, Oliver Gourlay, and James Thompson. They took the precaution of getting themselves sworn in as special constables; and though Chamberlain was a retired Lieutenant of the 31st Regiment, who, from his trained military knowledge, might have been appointed Commandant, his professional claim was waived in favour of Foyvler, w h o yvas chosen leader in consequence of his superior bushcraft, and thorough knowledge of the " hunting ground " they were bound for. Booted and spurred, well-armed and well-mounted, they started on their perilous expedition, dashing over the green open upland past the Old Gaol, and thence along through the north-west corner of the Carlton Gardensthen a forest, down by the Travellers' Rest (which though afterwards metamorphosed into a college, was, in the age I a m writing of, a quaint old shake-down of a groggery, round which a main road curled)—and crossing the Merri Creek, tore away to Heidelberg. T h e information communicated in town was so vague that the pursuers did not well know what particular route they ought to take. Arriving at Heidelberg, and obtaining some further intelligence there they m a d e a detour, crossing through Carrington's station, entering the D i a m o n d Creek district, and skirting the picturesque amphitheatre of the Y a n Yan (since misnamed Y a n Yean) arrived about daybreak in the Plenty country. Here they ascertained that nine homesteads had been robbed on the previous day; and in prosecuting their inquiries they incurred considerable danger, for some of the people suspected them to be bushrangers. T h e settlers were in such a state of alarm that at the residence of a Mr. Beal, a pistol was presented at Snodgrass, w h o narrowly escaped a summary eviction from this world. At Mr. John Bear's station they were informed of much that had taken place on the preceding day, and a Mr. Sampson offered to put them on the trail. A s they proceeded particulars were obtained of the recent outrages, and, arriving within a quarter of a mile of Campbell Hunter's, some horses yvere seen near the homestead, which left little doubt that "the gang" yvere close at hand. It was at once decided that the party should gallop on to the place, and withoutfiringa shot, dismount, rush the bushrangers and take them alive. W e can n o w return to the bushrangers, yvho yvere left enjoying themselves at the breakfast they had "annexed." T h e table yvas deserted, and, making for the prisoners outside, they liberated them on parole, that they yvould not take any part in the coming fray, and ordered them to retire to the back of the hut. T h e state of affairs therefore yvas that, as the five pursuers yvere in the act of dismounting, they beheld the four robbers, about fifteen or tyventy yards off, yvith four double-barrelled guns levelled at them. T h e five m a d e a rush, and as they did so eight shots yvere fired at them, none taking effect. T h e bushrangers hurried back to the hut, yvhich three of them succeeded in entering and barricaded the door. T h e fourth robber (Williams) yvas cut off by Gourlay, and tried to reach an adjoining store, erected with thick slabs, and interstices between each. H e was pursued by Gourlay upon yvhom he turned and fired; but Gourlay knocked the weapon aside saving his o w n life ; he had a very narroyv shave, for the powder scorched his face. H e then fired at Williams, but missing fire, he struck the fellow on the head yvith the butt. B y this time they yvere both in the store, and as the robber was preparing to discharge another pistol, Gourlay knocked him down and threw himself upon him. After struggling for some time Williams again fired at Gourlay ; but the bullet striking a poyvderflaskat Gourlay's side, his life was again saved, though he called for assistance. Snodgrass hearing his friend's cry, at m u c h risk of his life (for he had to cross the front of the hut) flew to his succour, and lodged a bullet in Williams's head. In its transit it yvas nearly taking Gourlay instead, but only singed some of his hair. Life yvas, however, tough in Williams, for so far from dying he once more rallied, struggled to his feet, and again tackled Gourlay, w h o yvas about to be submitted to another pistol experiment, yvhen Chamberlain, making his appearance, gave Williams a ball in the side, and killed him as " dead as a door nail." All this time there yvas a brisk firing into and from the dyvelling, but without any fatal result. Chamberlain, after shooting Williams, yvas hedged in himself, for the balls from the other bushrangers came whistling into the store through the spaces between the slabs, and it is said that it yvas only to his very slender, though tall and lithe figure that he owed his escape. T h efirstchance that offered he sallied out, and yvas wounded in the left elbow. M r . Foyvler was placed hors de combat soon after the firing commenced. H e was shot in two places, a small slug lodging below his ear, and a ball through the hut window penetrated his cheek, and then, by some eccentric movement from within emerged by the side of the nose, not decapitating that useful appendage to the h u m a n face divine, but barking it. After he fell a great quantity of blood spurted out of the hole in his cheek, a clot of yvhich settled on and about the top of his nose, so that he and his companions really thought he was what is vulgarly termed a "nosey," and he good humouredly exclaimed, " Well, the villains have spoiled m y beauty at all events." T h e agreeable truth yvas only ascertained yvhen Dr. Sanford examined his wounds afterwards, and clearing away the coagulated gore, discovered that his patient and his nose yvere still in partnership. His sense of hearing yvas permanently m u c h impaired, probably by the ear-wound. It was also nearly eventuating in lock-jaw, and his articulation was affected by it ever after. Whilst Mr. Fowler lay yveltering in blood, Mr. Smeatman dreyv him beyond the range of further danger, and placed him under a large gum-tree some yards away. H e was afterwards carried further off by Captain Harrison (who yvith others of the bailed-up settlers, was present), and placed in a hut, out of harm's reach. Snodgrass had some hair-breadth escapes in the encounter, yvas three or four times shot through his clothes, and yvas once within an inch of shooting a friend of his (Hunter), mistaking him in the row and the smoke for one of the bushrangers. Gourlay was struck four times by balls, though little more than scratched by any of them. After Fowler was disabled, Chamberlain took charge of the party. T h e firing into the loosely constructed slab store, where Williams was killed, Gourlayfloored,and Chamberlain so cleverly dodged the bullets, was so brisk, that on examination after the battle yvas over, eighteen or twenty bullets were found embedded in the slabs inside. T h e day was n o w advancing, and curiosity, mixed with anxiety, induced several of the Melbournians to ride after the volunteers. R u m o u r directed their route, and the report of the firing brought some of the country folk, and two or three policemen to the scene of conflict. Amongst those w h o ventured so far out of town was a M r . John Eyvart, not only a very "horsey" character, but one ofthe best judges of horseflesh in the colony. From a hip-malformation of some kind, which gave him a queer, jerky, one-sided gait, he went by the alias of " Hopping Jack," and was as well knoyvn in the old times as Kirk's Bazaar, the still popular horse repository in Bourke Street. O n this day "Jack" was fated to appear in what must have been to him a very novel character, i.e. a diplomatist. Tyvo o'clock had arrived; there yvas a partial cessation of hostilities, and the party outside the beleagured hut n o w numbered about thirty. T h e robbers held out until they saw they had no chance of escape; and if they had done so m u c h longer, it yvas intended to procure a cart from Harrison's, and with a mattress on it, improvising a bullet-proof bulwark, under cover of which to storm the hut, rush the bushrangers, and overpower them. Councils of war were held, both outside and inside, and the three bushrangers were heard shouting as if for a parley. After some shouting in reply, " Hopping Jack" mounted a haystack near one ofthe hut windoyvs, carried on a loud patter with the fellows inside; and it yvas ascertained that they were desirous that "Jack" should visit them as a plenipotentiary, with w h o m they could treat about a surrender; and then arose the difficulty as to whether any one should venture into such a h u m a n tigers' den. It was suggested (and not unreasonably) that it might be a ruse to entrap some person to be detained as a hostage, and probably murdered in the event of a non-compliance with any d e m a n d of the robbers. "Hopping Jack," however, was not deficient in courage, and without giving time for further deliberation, "hopped" merrily into the hands of the Philistines. And he had no reason for repenting his rashness, for they respected the truce, and treated the envoy to a feed on the roast duck, red herrings, and brandy, which Campbell Hunter's hospitality had unwittingly supplied. T h e bushrangers then came to business, and agreed to capitulate, if the attacking party gave a yvritten undertaking of their desire that the bushrangers on their trial should be mercifully dealt with. After some communication with the outside, a Mr. Rider followed "Jack," and acted as the scribe by w h o m the proposed treaty yvas committed to paper, when it yvas signed by tyvo of the outside party, and the gang laid down their arms, Fogarty being thefirstto surrender. It is hardly necessary to say that the "bit o' writin'" fared the fate of m a n y more pretentious protocols executed by greater powers. It was more "honoured in the breach than the observance," and, in lawyers' parlance "it would not hold water." About 3 o'clock the capture was completed, and one of the rascals was in an advanced state of intoxication. They were forthwith handcuffed, and being searched, £ 2 6 in bank notes, a few sovereigns, and a quantity of silver were found upon them, besides which it was stated, they were so plentiful in cash that having run short of paper during the day, they actually used £ 1 notes as gun and pistol wadding. At the hottest period of the gold mania, rum-maddened lucky diggers over-laid h a m sandwiches with £ 5 notes, to add piquancy to a counter lunch; but such a thing as bank-note cartridge paper yvas a novelty unknown at the most layvless period of gold-fields highway robbery. A singular story is told of Jepps. O n their way to Hunter's in the morning, the "Rangers" met Mr. Charles Ryan (of the now well-known stock-selling house of R y a n and H a m m o n d ) , and stuck him up. In the property of which they eased him was a pocket-knife,fittedwith a corkscrew, and this constituted a portion of the spoil allotted to Jepps, the actual robber. During the fight it was in the bushranger's vest pocket, and a ball discharged at him struck the knife fair in the centre, splintering the handle, and breaking one of the blades. T h e force of the blow knocked the fellow over amongst his companions in the hut, and they, believing him to be dead, were about to submit, when he revived and prevented them. After his arrest he said to Mr. Ryan, " I wish I had not taken your knife; for had I not done so, I should have been shot like a man, but n o w I shall hang like a dog." T h e knife was subsequently restored to its lawful owner, and is preserved by him as a souvenir of an unpleasant incident and an eventful day. W h e n the gang were thoroughly secured, three ofthe "screwiest" horses that could be found were placed at their service to render escape impracticable, and thus mounted, and securely guarded, they were escorted to the station of Mr. Sergeantson, where they and their guard had quartersforthe night. Next day they were brought to Melbourne and lodged in gaol. It was Sunday, and as the calvacade rode by the church of St. Francis during the hour of prayer, the building was half emptied of its congregation through a desire to behold the passing sight. Mr. Fowler had been removed to the house of a friend on the Plenty, was promptly attended by Dr. Sanford, a Melbourne surgeon, and, thanks to a good constitution and skilful treatment, was soon able to be about. T h e body of Williams, the dead bushranger, was conveyed to Melbourne, and a coroner's inquisition found a verdict of justifiable homicide. A day or two after the arrest, Fogarty, the youngest of the gang, showed m u c h uneasiness at the position in which he was placed. H e m a d e certain overtures to the authorities, which left little doubt of his willingness to turn "approver" against his companions in wickedness, and the Crown had some notion of accepting him as Queen's evidence ; but it yvas found that the direct testimony in sustainment of a capital charge against the whole party was so conclusive, that it was resolved to bring the three to trial. Fogarty, however, m a d e some revelations of such a character as induced the police to pay a visit to the residence of the m a n C a m (before mentioned), the result of yvhich was the "springing of a plant" of watches, jewellery, pistols, and other property, subsequently identified as part of the plunder taken by the bushrangers from some of the persons robbed near Dandenong. C a m was apprehended, convicted as a receiver of stolen property, and transported for fourteen years. T h e bushrangers were brought before the Melbourne Police Court on the 4th of May, and fully committed. Their trial followed before Mr. Justice Willis on the n t h May. M r . Croke (the Crown Prosecutor) conducted the prosecution, and the Honorable M r . Murray appeared for the defence. T h e Judge delivered an address at once abstruse, learned and discursive. T h e exordium, however, bore a special reference to the issue exclusively before him, and is worth quoting:—"Gentlemen,— Y o u are especially convened this day for the trial of certain prisoners, w h o are supposed to have been some of those w h o recently united in the commission of m a n y daring robberies, and became alike the terror and disgrace of this happy land. For the speedy check to the layvless career of these wicked m e n w e are indebted, not to the ordinary police (though the activity and zeal of the Crown Commissioner merits entire approbation), but to the spirited conduct and undaunted courage of the colonists themselves. T h e names of the captors, gentlemen, and the details of their achievements, are already familiar to you ; they will live in the grateful m e m o r y of their contemporaries; and the future annals of this Province will 'Record their dreadful daring with applause.'"
The prisoners yvere indicted for shooting at and wounding Henry Fowler, with the intent to murder him, at West Loyvlands, in the District of Port Phillip, and colony of Neyv South Wales, on the 29th April. T h e information contained twenty-four counts, the first twelve varying the offence, charging Ellis with the shooting, and the others as aiders and abettors; the sixth count charged Jepps as principal, and the others yvith aiding and abetting; the seventh count charged Fogarty as the principal, and the others as aiders and abettors, etc. ; whilst the last twelve counts charged the prisoners yvith shooting at Fowler with intent to maim, disfigure, and disable; varying the offence between the prisoners as in thefirsttwelve. Mr. Fowler's appearance in Court, a wounded invalid, created a sensation, and he was most courteously and considerately treated by the Judge, w h o permitted him to give his evidence seated. H e , Snodgrass, Gourlay, Chamberlain, Thompson, Ewart, Rider, and others were produced, and their evidence could not be shaken by cross-examination. A s to defence, there yvas in fact none, though Counsel delivered a lengthy and eloquent address to the jury ; but it was simply a vox et preterea nihil. T h e jury retired for about an hour, and returned to Court with a verdict of "Guilty." His Honor directed the prisoners to be remanded to the 13th, as he yvished some time for consideration, and was desirous of affording M r . Murray an opportunity of moving an arrest of judgment, if he believed he had any grounds for doing so. H e informed the prisoners, though, that they yvould end their existence shortly after the passing of the sentence. O n the day indicated the Judge took his seat at 12 o'clock, and the prisoners were before him ayvaiting their doom. T h e n the Crown Prosecutor rose and prayed the judgment of the Court. In reply to a question from the Bench, the prisoners' Counsel expressed his regret that he had nothing to urge against it. His Honor then put on the black cap, and in brief and impressive language passed sentence of death upon the prisoners, earnestly imploring them " to make use of the short time that n o w remained for their existence in this world in seeking to m a k e their peace with the Deity they had offended." Jepps and Fogarty heard their fate with firmness, but Ellis pressed his forehead with his hand, and, "yvith compressed lips, evidently sought to stifle the effect produced by the sentence." T h e prisoners sent a message of grateful thanks to their Counsel, and were conveyed back to the gaol, the escort finding some difficulty in passing through the immense crowd congregated about. POSTSCRIPT.
Post-mortem would, perhaps, be a more appropriate heading for this note, for several notable and estimable old colonists have passed away in the brief interval elapsing since the commencement of the writing of the " C H R O N I C L E S O F E A R L Y M E L B O U R N E . " I was about thinking of making a start when Sir R e d m o n d Barry was carried off amidst universal regret. H e was the most remarkable personage in the annals of Port Phillip, for he threw in his lot yvith the destiny of the Province yvhen it was a weak, struggling settlement in 1839, and identified himself yvith every stage of its wonderful progression until he left it a bright and brilliant colony in 1880. H a d he lived I a m sure he yvould have enjoyed many of the queer old facts exhumed in the course of m y several narratives; and, if requisite, I should have confidently appealed to him as a testimony of their general accuracy, for no m a n amongst us would be more capable of expressing an opinion on such a subject. M r . W . F. A. Rucker has also m a d e his exit from the worldly stage, and to him I was m u c h indebted for the inspection of several old tracings and neyvspapers othenvise unattainable. H e yvas the second merchant or wholesale dealer in Melbourne, Batman being the first; and it was Mr. Rucker w h o started thefirstbanking agency here. H e was one of " T h e Tyvelve Apostles," a curious Mutual Assistance Co-partnery, of which I hope on an early day to furnish a full, true, and particular account. Next is the H o n . James Henty, one of the historic brothers w h o pioneered Portland ever so long ago. T h e n there is M r . John Murchieson, w h o died recently at K e w , an old resident of rare integrity and enterprise, who, amongst other feats, accomplished that of driving thefirsttandem overland from Sydney, when there yvas not only no railroad, but no road at all between the two capitals. Mr. Robert Hoddle (thefirstSurveyor-General, though not thefirstin charge), w h o came to Melbourne before it yvas even a township, with Governor Bourke, in 1837, has also gone under, after a long-lived and prosperous career ; and so has Mr. William Highett, thefirstmanager of the Union Bank, leaving hundreds of thousands of pounds behind him. Mr. T h o m a s Napier, thefirsttimber importer, has likewise passed to his account, and tyvo or three others of the very old identities are said to be in a precarious condition. Mr. Michael Croker has also departed this life, at Blackwood, in his 79th year. His obituary notice, announced that " he was deeply regretted by a large circle of friends." A n d I a m not surprised at it, for a more generous and kind-hearted m a n never existed amongst us. Arriving in Melbourne in 1839, he yvas in business in the town and city until after the gold discoveries, in 1851-2, when he betook himself to the diggings, and continued there since, having for m a n y years resided at Blackwood. There was hardly a m a n in the old times better liked ; and no one ever in vain asked the aid of Michael Croker in any movement for a good purpose. H e was one of the original members of the St. Patrick Society, and amongst the most prominent in the early national celebrations by yvhich the days of yore yvere distinguished. H e was an old and true friend of mine; and it is with sincere sorrow I publicly place a bunch of cypress on his freshly-covered grave. THE MURDER OF MR. CODD—19TH JULY, 1842.
There was no time, perhaps, in the colony yvhen the aborigines were more truculent and bloodthirsty than in the year embracing the last half of 1839 and thefirstof 1840. Outrages of a serious character were of almost daily occurrence in the interior, and there were impediments of a formidable nature to avert the retribution of the law. In April, 1840, a gentlemen n a m e d C o d d was murdered by the chief of one of the Western tribes, and the event caused a profound sensation, the deceased being held in general esteem. T h e coolness and daring of the deed brought apprehension to the scattered station-holders in the bush. Without inquiring whether the blacks or the whites were the original aggressors, any person fairly conversant with the early history of Port Phillip must admit that unprovoked atrocities were committed on both sides, for which terrible revenges were exacted. T h e instances in which offenders were brought to the bar of justice are few; and, though aboriginals have been convicted and hanged, there is no case in the criminal annals of Victoria of a European having been found guilty for taking the life of an aborigine. T h e scene of the murder I a m noyv writing of was the station of a Mr. Brock, at M o u n t Rouse, in the then District of Port Fairy. C o d d yvas, as yvas c o m m o n in those days, a " gentleman overseer;" and on the 19th April, 1840, yvith a couple of the station hands, was at yvork in the scrub, not far from the homestead. A m o b of blacks, some eighteen or twenty in number, were seen prowling about, but not m u c h heeded, yvhen suddenly the white m e n yvere rushed, and before they had time to defend themselves Codd and a m a n n a m e d Rooney yvere stricken down, the former fatally, and the other dangerously wounded. C o d d survived only five minutes, and Rooney recovered after a protracted illness. T h e blacks fled, but their leader, quite a model of the thoroughly developed and powerfully proportioned aboriginal, was easily identifiable, and a warrant was issuedforhis arrest. For more than tyvo years he contrived to elude capture, though parties of mounted-police seldom slacked rein in endeavouring to run him to earth. At length he was overhauled, secured, and sent to Melbourne for his trial. His tribal n a m e was Figara Alkepurata, though he usually yvent under the English appellative of " Roger." There yvas m u c h difficulty in obtaining the services of interpreters, but the Crown succeeded in procuring four persons, by whose united efforts he was brought to some dim comprehension of the process of trial by jury. This quartette consisted of Messrs. G. A. Sieveyvright (the Assistant Protector of Aborigines for the District), Hurst, Lacy and Smith. T h e prosecution yvas conducted by the Crowm Prosecutor, and the defence by Mr. Barry, yvho wras noyv regarded as standing Counsel for the aborigines. T h e facts above summarised yvere deposed to in m u c h detail, and satisfactory proof yvas given that the prisoner wras not only the leader of the attacking force, but that he had struck C o d d several times yvith a heavy native club. T h e prisoner in his oyvn yvay yvas not devoid of a certain shreyvdness and intelligence, and seemed to thoroughly understand (through the interpreters) all that passed. In defence, he declared himself innocent of the murder. H e put in a verbal alibi, i.e., that he yvas at the time of the committal of the offence away on the neighbouring station of a Captain Webster, yvith his brother, " Milk-and-Water," and three white men, employed sheep-washing. Whilst so engaged three blacks arrived, and told them of the murder of Codd, and he asked them why they did it, but got no ansyver. T h e jury returned a verdict of " Guilty," and after sentence of death yvas passed the prisoner, little conqerned, was removed to the gaol. Next day the Chief Protector of Aborigines m a d e him a visit, when the prisoner was very anxious to know by what m o d e he would be put out of the world— whether by being hanged, shot, or having his throat cut. O n being told that he yvould syving, he replied that he liked hanging least of all. THE FIRST CRIMINAL LIBEL CASE.—17TH AUGUST, 1842.
T. M. Marshall v. George Arden. The plaintiff yvas a Commission Agent, and the defendant the Editor and registered proprietor of the Port Phillip Gazette. Anterior to the passing of the Melbourne Corporation Act, there was much local agitation arising out of the proposed provisions of the measure, and meetings were held in the several Wards, into the proceedings of yvhich m u c h personal feeling and unwrorthy jealousies were introduced. A s a matter of course the newspapers took different sides, and Marshall having presumed to officiate as Chairman at a gathering in Bourke Ward, and to accept a vote of thanks for his services, the Gazette pitched into him in a style that yvould scarcely be sanctioned by the most relaxed canons of criticism. It yvas an intensely acrimonious attack, in yvhich personal abuse and innuendo yvere so bitterly mixed, that it was small wonder that the publisher should be brought over the coals for it. Not content yvith treating of Marshall's colonial career, it yvent back to his pre-emigration period, disinterring a former bankruptcy and some alleged questionable doings on the London Stock Exchange, and declared that he had quitted England for Belgium under circumstances the reverse of creditable. Marshall s u m m o n e d Arden to the Police Court, whence the case was sent on for trial; but beyond formally sanctioning the filing of a bill, the Croyvn Prosecutor had nothing further to do with the business. T h e case was tried at the Criminal Sessions in the usual manner, Mr. Barry appearing for the complainant, and Messrs. Murray and Williams for the defence. T h e indictment laid the offence as the publication, in the Gazette of 2nd July, " to the great infamy, injury, and scandal" of Marshall, etc. For the prosecution the complainant yvas called as a witness, and, whilst emphatically traversing various sections of the libel complained of, on cross-examination he acknowledged to having been insolvent, and arrestedfordebt in England, but had given bail there and had not left whilst under bail. H e declared he had never been outlawed. T h e jury found Arden "Guilty," and he yvas admitted to recognizances, to appear for judgment on the 15th September, yvhen Judge Willis sentenced him to a fine of £ 5 0 , to find tyvo years' good behaviour security, himself in £ 5 0 0 and tyvo bondsmen in £ 2 5 0 each, and to be imprisoned until the fine yvas paid, and the recognizances entered into. T h e Judge subsequently alloyved Arden to give bail for the fulfilment of the sentence within a few days, which was done accordingly. THE FIRST TRIAL FOR RAPE.—15TH OCTOBER, 1842.
John Taylor yvas indicted for the violation of Anne Handhaugh, at Geelong, on the 8th September. For the prosecution the Croyvn Prosecutor appeared, and Mr. Cunninghame, assigned by the Court, defended the prisoner. T h e prosecutrix was a married w o m a n , about 25 years of age, and in very delicate health. She lived at Ashby, near Geelong, and on the day named had occasion to go into Geelong to procure some medicine from Dr. Shaw for her sick servant. She had to travel a mile to and from, and was returning in the afternoon yvhen she met the prisoner on the road, yvho remarked that it yvas "a fine evening." She m a d e the usual reply, and he then uttered an insulting expression, at which she got alarmed, called out " Murder," and ran from him. H e overtook her, threw her doyvn, and maltreated her with a violence that rendered her insensible. Tyvo m e n and a w o m a n witnessed the outrage from some distance, and one of them (Sylvester Neyvton) pursued the prisoner and caught hold of him, but was quickly shaken off, and Taylor for the time escaped. That night he was apprehended by the police, and next day committed for trial from the Geelong Bench. Whilst giving her evidence the prosecutrix became so exhausted by extreme nervousness that stimulants had to be twice administered to her. Dr. Shayv and her husband were obliged to support her in Court, and when her examination was concluded she fainted, in which state she was removed to the Judge's room. T h e charge was most conclusively proved, and the jury found the prisoner "Guilty." H e yvas remanded for judgment until the 17th, yvhen sentence of death was passed, yvhich yvas afterwards commuted to transportation for life. MURDER AT THE PYRENEES.—17TH OCTOBER, 1842.
John Connolly, alias Maloney, was tried for the wilful murder of Mr. Francis, a settler at the Pyrenees, on the 17th September, and his defence was undertaken by M r . Cunninghame, assigned as Counsel for that purpose. From the opening statement of the Crown Prosecutor, it appeared that the prisoner yvas employed on the station of the deceased. They had had some dispute, during which Connolly snatched up a gun and presented it at Francis, but it did not go off. H e yvas then ordered to quit the place, which he did, but returned some hours after. Francis seeing the m a n coming back went towards him to prevent it. H e had a piece of rotten stick in his hand, and, meeting Connolly about 150 yards from the house, told him he yvould have nothing more to do with him. Connolly dared him to prevent his going back, and would force his way, when Francis struck him with the stick on the shoulder. Connolly then rushed on Francis, and the latter fell to the ground. This m u c h yvas seen by some m e n working a short distance off; but they saw no other weapon used than the rotten stick. Francis, w h o had on only his shirt and trousers, scrambled to his feet and hastened back to the house, telling the inmates that Connolly had stabbed him; he went to bed, and died next day. T h e murderer was at once seized by the m e n on the place; and when Francis heard the scuffling, and was told the cause, he sent word "that the prisoner yvas not to be ill-used." N o one had seen any stab given, nor was any weapon found on the prisoner or about the scene of the occurrence, and so far they did not know what to m a k e of it; but the mystery was made plain next day by the prisoner confessing that he had stabbed Francis with a knife formed out of a sheepshears, and immediately after dropped the weapon in a water-hole. It was elicited in evidence that the prisoner was sometimes yvhat is colonially termed a "shingle short," and, in consequence was known as Cranky John. T h e defence set up yvas insanity, but the prisoner was convicted after little deliberation by the jury. O n being asked if he had anything to say why sentence of death should not be passed on him, the unfortunate m a n replied that "he wished to get out of the country;" and whilst the Judge was passing sentence, the prisoner exclaimed with fervour, " O h ! thank G o d !" whereat the Judge sharply told him " that he had more reason to pray to God!" T h e prisoner then declared that " Francis had struck him and set the dogs upon him, and a m a n might as yvell be dead as torn by dogs." The Judge sentenced him to be hanged, but the punishment yvas afteryvards modified to transportation for life.
The First Civil Libel Case.—30th January, 1843.
Leadbetter v. Cavanagh.
The plaintiff was a Law Clerk, defendant the registered Proprietor of the Herald, and it yvas sought to recover damages for the publication of a very defamatory libel. Leadbetter owed Cavanagh money, and yvas rather long-yvinded in his payment. Leadbetter cleared out one day for Sydney, yvith the score unsatisfied, for which he was denounced in a Herald paragraph of a most abusive nature. By it the gentleman who had made himself scarce was held up to public scorn as " a bolter from the colony ;" and ticketed "as a most notorious scamp w h o hadfledto Sydney in the 'Earl of Durham.' " It was further declared "that a greater scamp never disgraced the Province;" and as a kind of "hue and cry " for the benefit of the Sydney people, the runaway was printed down as " of c o m m o n stature, peering eyes, a curl on the upper lip, ruddy complexion, and an extremely obtrusive manner." W h e n Leadbetter read the terrible tirade on himself, he returned to Melbourne and sought legal redress. Mr. Barry appeared for the plaintiff, Mr. Cunninghame for the defendant, and the jury awarded damages £ 2 0 .
False Imprisonment.—12th May, 1843.
Kerr v. St. John.
An action for false imprisonment, damages £1,000. Counsel for plaintiff, Mr. Williams; for defendant, Messrs. Croke and Barry. Plea—the general issue. There yvere no tyvo betterknoyvn m e n in their time than the litigants in this case. T h e plaintiff yvas Mr. William Kerr, the Editor of the Patriot, and an Alderman of Melbourne; the defendant Major F. B. St. John, the Police Magistrate. It has often occurred to m e that " the Major " used to copy the yveaknesses and eccentricities of the Superior Judge, though on the yvhole he was more good-natured, independent, and_fair-minded than Willis. O n the 8th August, 1842, there appeared in the Patriot a mosquito paragraph, reflecting upon a decision of the Major's, which stung him to such a pitch that he forthyvith issued a summons requiring Kerr to appear at the Police Court, and answer any questions that might be put to him. Kerr yvas in no wise loth to appear, and the moment the Major had him before him, he became bounceable, and Kerr waxed impudent. T h e consequence was that the Major committed the Editor-Alderman to prison for twenty-four hours for contempt, and to gaol he yvent in high good humour. The warrant of commitment was made out on a printed form in general use in the Court, and the yvords " with hard labour" were, by an inadvertence of the clerk, not erased; so that the detainer yvas bad, inasmuch as it imposed an addition to the durance, which was ultra vires in a punishment for contempt of Court. A n application was therefore made to the Supreme Court next morning to set aside the warrant, because of its faultiness, and the Judge quashed it accordingly. Kerr yvas thereupon enlarged, but not before he had put in the whole tyventy-four hours less twenty minutes. Kerr, yvho kneyv more law than the Major, seemed aware oftheflaw,for, whilst he was confined, he begged of the gaoler to put him to hard labour of any kind—he was not over-particular as to the quality of the yvork, provided he was kept doing something ; and yvas ready and willing to clean boots, brush a coat, or scrub a cell; in fact, he yvas ready to lend a hand to do anything. But the gaoler, possibly out of regard for Kerr's public position, yvas unwilling even to oblige him so far. T h e jury found for the plaintiff, damages £ 5 0 ; and on the announcement of the verdict, Judge Willis rubbed his hands gleefully, and exclaimed, " It yvas just the very sum I thought they would give." MURDER OF AN ABORIGINAL WOMAN.—31ST JULY, 1843.
This was the first trial of note that was held before Mr. Justice Jeffcott (the second Resident Judge). As the prisoners were white men, the issue was looked forward to with the utmost interest. After the jury panel was called, Richard Guiness Hill, Joseph Betts, and John Beswicke, were put to the bar charged with the murder of an aboriginal woman, named Coonea, at Muston's Creek, on the 23rd February, 1842. The prosecution was conducted by the Crown Prosecutor and Mr. Barry. The prisoners Hill and Betts were defended by Messrs. Williams and Stawell, whilst Messrs Cunninghame and Stayvell appeared for Beswicke. The indictment contained ten counts in yvhich the offence was varied in every form known to legal ingenuity, and the prisoners pleaded "Not Guilty."
On the 25th February, 1842, Mr. C. W. Sievewright, the Assistant Protector of Aborigines for the Western District, accompanied by a blackfellow, found the bodies of some native women on the station of Messrs. Smith and Osbrey, at Muston's Creek. He identified two of them, named Coonea or Connyer, and Naidgoncher. Coonea, he believed, had been shot dead, for she had received a gun shot in the abdomen, and had had her left arm smashed by another shot. He had been twenty-five years in the army, and was well acquainted with the appearance of shot wounds. The bullet had entered the right side of the woman and passed out at the left. He was well aware of the difference between a wound from a spear and a gun shot. Had seen deceased about a week before, and did not observe any male aborigines about on this day. He would not swear positively that the abdomen wound had not been caused by a barbed spear. Christopher McGuinness, a bush carpenter employed on the station, said that on the 23rd or 24th February, 1842, he saw the prisoner Betts ride rapidly up to the master's hut and talk to Hill. Betts then came over to the men's quarters, and asked one of the hands (Arabin) to lend him a gun to shoot some kangaroos, and Arabin loaded a gun with two bullets and passed it to him. Soon after witness saw Betts and some other men on horseback ride away from the master's hut, and he followed them. When about three-quarters of a mile off he heard two shotsfired,and stopped, expecting to see some kangaroos. He saw six men on horses, and the prisoners were some of them. One of the six, named Boursiquot rode after a blackfellow. Betts moved towards the bottom of a scrub, and, levelling his gun, fired into a clump of trees, and witness saw a blackfigure fall. The figure when falling uttered a loud shriek, and some other black figures rushed out of the scrub. Hill shouted, "Here they come," when three shots were fired,and there was terrible wailing from the scrub. Witness returned home, and at supper in the evening, Betts and Arabin talked about the blacks, and Betts said there were some lubras and children shot in the hollow. Hill was armed with a pair of pistols, and Beswicke with a short gun or rifle. The witness, on cross-examination, admitted that he was an expiree-convict, and had been arrested on suspicion of complicity in the murder.
The most important evidence was given by Mr. Thomas Osbrey, one of the owners of the Muston Creek Station. He stated that Hill was his manager and Betts the hut-keeper. On 23rd February three gentlemen named Smith, Whitehead, and Boursiquot, visited the place, and whilst they were in his hut, Betts looked in at the door, saying "there was a mob of blackfellows at hand." The whole of the party then jumped up and got their arms; but he paid no attention to what they talked about. They went away, and on their return he saw some blackfellows' weapons with them. He did not see Beswicke there that day, and he thought Beswicke could not have been there without him (Osbrey) seeing him. Afterwards saw the dead bodies of three black women and a child. George Arabin corroborated portions of the statement of McGuinness, and declared to having seen the three prisoners in the party of six who set forth, as he was given to understand, "kangarooing." McGuinness followed to obtain the skins. He only saw firearms with Betts, who said, in the evening, that he had fired twice, and hit a gum tree. Three days after the Black Protector called at the men's hut, informed them that three black women and a child had been murdered, and offered a reward of £50 for information concerning the outrage. In reply to prisoners' Counsel the witness acknowledged to his having been arrested on the charge, and that when examined before Sievewright, who was a J.P, he swore he knew nothing of the affair. The trial was adjourned until the next day, and the jury locked up in charge of a sheriffs officer at the Royal Hotel in Collins Street. On its resumption Messrs. Williams and Cunninghame addressed the jury on behalf of the accused. The defence relied on was that the witnesses (M'Guinness and Arabin) were unworthy of belief, being, according to Cunninghame, "wretches, steeped to the lips in crime, self-convicted perjurers seeking to earn the price of blood." The evidence of these two witnesses as given to the Court was compared with their depositions at the preliminary investigation, and the discrepancies indicated. An alibi was set up for Beswicke, who on the day of the alleged massacre was away on the station of a Mr. Brock, attending to his business. The whole charge was declared to have been trumped up by "conspirators banded together in perjury, linked together by the bond of mutual guilt, and joining together in a well-concocted story, to swear away innocent life, and earn a blood-stained reward." At this stage the prosecution was stopped by the jury intimating that they had agreed to a verdict of "Not Guilty." The Judge, in directing the discharge of the prisoners, remarked that it would have been an everlasting disgrace on the Government had this case not been investigated, and if the prisoners had been convicted he should have passed sentence of death upon them without the slightest hope of mercy.
It was reported that two other parties supposed to have been implicated had cleared out for England, and had there been a conviction, warrants would have been despatched for their apprehension.
False Imprisonment by a Judge—24th Novermber, 1843.
Ebden v. Willis.
An action for trespass by false imprisonment; damages laid at £5000. Declaration contained one count. Pleas, the general issue and justification—"For that defendant, as Resident Judge of Port Phillip, did in the lawful exercise of his authority imprison the plaintiff for constructive assault." Counsel for plaintiff, Messrs. Raymond and Barry; for defendant, Mr. Williams.
The suit arose out of the circumstances detailed in Chapter VII, pp. 76 (" Eccentricities of Judge Willis,") when Carrington, an Attorney, attempted to serve an order of the Supreme Court of Sydney on Judge Willis, in Bourke Street, and the Judge, when either struck or touched by the papers, gave Carrington into custody. The plaintiff (Ebden) as the friend of Carrington, was with him on the day of the occurrence, and the Judge put him along with his companion for having, as he conceived, committed a constructive assault. They were both detained in the lock-up for a short time, and then brought before the Police Court, where the charge against Ebden was withdrawn. After the plaintiff had proved the facts, Mr. Williams submitted the following non-suit points:— 1. That no action could lie against a Judge acting and exercising his functions within his proper jurisdiction. —2. That the plaintiff should have given notice of his action, so that if wrong were done, defendant might have an opportunity of tendering amends. —3. That the action should have been commenced within six months of the alleged trespass.
His Honor, Judge Jeffcott, having signified his intention of sending the case to the jury, a defence was raised on the merits in effect that Ebden had gone out of his way in backing up Carrington; and that the attempted personal service in the streets was a trick to produce a scene, and so humiliate the Judge. Before the occurrence in the street, the conduct of both Ebden and Carrington in the Supreme Court had been most offensive.
In summing up, the Judge commented on the want of courtesy in not communicating by letter with Judge Willis as to his accepting personal service. Improper feeling had been displayed on both sides, and there was no evidence that personal service of the legal process was necessary. If the jury were of opinion that the throwing of the order at the Judge was merely a service of it, they ought to consider that no assault had been committed. It was also a matter for consideration as to what power the Judge possessed to commit those persons to prison, for a Judge walks through the streets as any other private individual, and has no right to order into custody anyone who may be personally rude to him. If the parties went simply to serve an order, there was nothing offensive in it; and if some person had been deputed to accept service for the Judge, the degradation of the street scene would have been avoided. If they thought personal service was necessary, then the Judge brought the trouble on himself. It was for the jury to weigh all the facts submitted to them, and consider whether one or both of the parties (Carrington and Ebden) intended to commit an assault; and also how far the Judge was justified in sending them to prison, though this was rather a question of law. The jury after a short deliberation found for plaintiff, damages 42s. I am not aware of any subsequent steps having been taken to set aside this verdict. Ex-Judge Willis was at the time away in England, prosecuting his appeal before the Privy Council; and a Melbourne newspaper, some months after, stated that a writ of execution had issued, and £1200 worth of the defendant's property had been sold for considerably under that amount, by Sheriff's sale, to satisfy the verdict and costs.
Prosecution for Libel.—28th November, 1843.
During the Municipal Election agitation of 1843, a violently scurrilous article appeared in the Herald, denouncing the candidature of Mr. Anthony H———n for a seat in the Town Council, and alleging that "H———n's father was a convict assigned to his wife in Sydney, and that he had been convicted of an offence of frightful atrocity." The newspaper soon found out that it had made a great mistake, and had committed an act of the grossest injustice. A most unqualified apology was promptly published, and fifty copies of the paper containing the libel were destroyed. But this did not satisfy the H———ns, who took out a warrant against Mr. Clarke, the registered printer and publisher of the Herald. He was committed by the Police Court for trial, but upon Mr. George Cavenagh, the proprietor, offering to change places, Clarke was released and Cavenagh bound over to answer the charge at the Criminal Sessions. He was accordingly arraigned for the libel on a bill filed by the Crown Prosecutor, but conducted at the expense of the plaintiff, who was represented by Mr. Stawell; whilst Cavenagh was defended by Mr. Williams. Defendant pleaded "Guilty," and was admitted to bail, himself in £200, and two sureties in bonds of £100 each, to appear for judgment when called on.
Cavenagh, it appears, had been misled by one of the swarm of groundless rumours circulated during the high pressure heat so characteristic of the early Municipal Elections, and there could be no question of the manner in which H———n had been calumniated. Cavenagh very soon found this out, and made all the amends in his power. During the period that intervened between the publication of the libel, up to, and after the trial, various certificates, declarations, and letters appeared in the other Melbourne journals, establishing the good name and fame of the H———ns, and the falsehood of the libel, every iota of which Cavenagh had reprinted in the Herald. On the 16th December, he appeared to receive sentence; and Mr. Stawell, for plaintiff, prayed the judgment of the Court. Mr. Williams for defendant put in affidavits in mitigation, in which a dozen of the most respectable residents of Melbourne testified that for years they had heard and believed, up to trial, the report that Mr. H———n, senior, was as set forth in the libel. Contra affidavits were also filed, including one by a Mr. Thomas Jennings, expressive of his belief that the story about Hn had originated with H. N. Carrington, a well-known Attorney and a great mischief maker. Mr. Williams addressed the Court at much length. He made a very forcible appeal to His Honor for leniency under the circumstances. Mr. Stawell in reply submitted that the affidavits of the defendant simply aggravated the original offence. Judge Jeffcott took until the 18th to consider the affidavits, and on that day sentenced the defendant to a fine of £50, and three months' imprisonment, with further incarceration on non-payment of the fine. Mr. Williams applied for the remission of the imprisonment, which, if enforced, would ruin the defendant, who had a large family dependent on him, and the Judge intimated that he would have no objection if the prosecution consented. After a brief consultation, the consent was given, and the imprisonment cancelled. The fine was paid at once, and Cavenagh walked forth a free man. The Patriot, of which Cavenagh's enemy (Mr. Kerr) was editor, behaved throughout this matter with shameful indecency, and declared in its next issue that the prosecutor had never given any consent as to waiving the incarceration; but as the assertion was not confirmed by reliable testimony, few, if any, gave it credence.
Conviction of a "Gentleman Rowdy."-16th March, 1844.
On the night of the 3rd February, 1844, six or seven inebriated "swells," freighted with more grog than brains, sallied out of the Melbourne Club for a "bit of a spree," determined to do something sensational. What particular form their heroism was to assume was undetermined, and depended very much upon what Fortune might throw in their way. They were armed in manifold manner—two or three of them with broad palings, others with bludgeons, and one with a poker; whilst he who seemed to perform the functions of conductor, brandished aloft something very like a crowbar. After some slight skirmishing, undeserving of record in this veritable history, they arrived at what was then known as the River Townend, after a grocer who kept shop at the south-western corner of Collins and Elizabeth Streets. This was a sort of nasty ravine discharging into the Yarra, and the Corporation had recently had a wooden bridge thrown over the chasm, so as to enable a safe transit from the footway into the centre of Elizabeth Street, and this public convenience the hot-blooded "skylarkers" determined to destroy, not by siege, but by assault. To work then they went literally vi et armis, but had not progressed far in their intended wrecking, when some of the police, and a brace of night-watchmen appeared. They quietly begged of the gentlemen to drop their mischief, and go home in peace to bed, when one of them (a Mr. White) told off to do duty as a sapper by undermining one side of the bridge, roared out that "he'd like to know what the ———— the constables had to do with him?" A general engagement immediately commenced, and the first man down was an old constable named Corrie, who was capsized by a back-hander from White, who, either from the impetus of the blow, or the whisky-toddy he had been imbibing, tumbled on the top of the peace-preserver. White was soon himself again, and fell foul of a little podgy sergeant well-known as Swindell, whom he punched tremendously. Another of the "skylarkers" recognised as Mr. Peter S————s, was a sort of free-lance, hitting out right and left "for fun," and punishing both his friend and foe with great impartiality. The leader of the Mohawks (identified as a Mr. Henry Wheeler) played "poker" in a style which rather astonished the thick heads and shoulders of some of the police, three of whom tackled him on the bridge, but got paid off for their intrepidity; for one of them (Higgins) received "one for his nob," and the others were treated to contused arms. Higgings was a big "Sprig of Shillelah" well inured to Irish skirmishing, and he kept the bridge like a modern Horatius; but, unlike the latter, had no Tiber to jump into and swim away with a whole skin. Like Horatius, though, he held the bridge manfully against the "spifflicated" Etrurians, until levelled by the poker, and after the battle was over, was found soaking in blood, covering with his body the bridge which he refused to abandon. The police were at length reinforced by some of the townspeople, and singularly enough, it was a diminutive, half-cranky tailor, named Elliott, who disarmed Wheeler, by stealing behind and adroitly twitching the poker out of his hand. The poker was to Wheeler what his hair was to Samson; and having lost it, it was all up with him. White, Wheeler, and S————s were made prisoners of war, and marched off in triumph to the watch-house. The other night-birds escaped. The rioters were charged at the Police Court next morning, when the evidence against S————s was trifling, and he was therefore let off scot free. White was fined £5, but Wheeler's conduct was proved to be so outrageous that the magistrates declined to deal with him summarily, and he was therefore committed for trial, but admitted to bail. His trial came off at the Criminal Sessions on the 16th March, though during the interval strenuous exertions had been made to effect a compromise-but to no purpose. The traverser, who was defended by Mr. Raymond, was indicted for an assault upon Constable John Higgins in the discharge of his duty, and a second count charged a common assault. The jury convicted on the first count, and Judge Jeffcott in passing sentence administered a severe rebuke to persons ranking in society as gentlemen descending to acts that would disgrace the humblest man. The judgment of the Court was three months' imprisonment, a fine of £50, and to find two sureties of £100 each to keep the peace for twelve months, with further imprisonment until the pecuniary requirements were satisfied. The cash and bail-bonds were forthcoming, and after serving a month's incarceration the Executive remitted the remainder of the confinement in deference to an influentially signed memorial. It was understood that Higgins had been compensated by way of erie for the serious injuries he sustained. He remained for several years afterwards in the police force.
A Magisterial Horse-whipping.—17th April, 1844.
M'Crae v. Foster,
Tried before Judge Jeffcott and a special jury of twelve, was an action for assault and battery; damages, £2000. The assault was admitted and £10 paid into Court. Counsel for plaintiff, Messrs. Cunninghame and Williams; for defendant, Messrs. Barry and Stawell. The plaintiff was Dr. Farquhar M'Crae, and the defendant, Mr. J. F. L. Foster. They were both in the Commission of the Peace, and the event caused considerable interest in the upper stratum of society, to which the individuals belonged.
On the 1st December, 1843, M'Crae was riding through Queen Street, when he was rushed by Foster, whip in hand, who struck both man and horse, which led to the unhorsing of the rider. M'Crae recovering his feet followed Foster, who grasped his pursuer, held him firmly, and again gave him the whip several times over head and shoulders. The fracas arose out of a dispute about the purchase of a run from M'Crae by Foster, the latter of whom complained of having been unhandsomely treated by the former. Some correspondence ensued, in which M'Crae interrogated Foster as to the way in which he had spoken of him. This was not denied, and M'Crae again wrote to him on the subject, as well as with reference to a debt which he alleged Foster owed him. Foster sent M'Crae a challenge, which was declined, on the not unreasonable ground, that before a man offered to fight another he should first pay him what he owed him. M'Crae, however, proposed to refer the matters in dispute to a friendly arbitration; but Foster, whilst not denying the liability, rejected the mediation, and the street scene was the consequence. The correspondence was produced, and M'Crae's letters were certainly couched in language of studied and covert affront, as for instance wherein he declared "that no laws in the code of honour were more imperative than that no gentleman could be allowed to go out with another under dishonour." In further letters both parties asserted that each had so insulted the other as to place him outside the pale of fighting. The jury found for plaintiff, damages £250.
An Inter-se Black Murder.—15th May, 1844.
"Jacky Jacky," an aborigine, was indicted for the murder of an aboriginal boy named Tommy. A second count charged the offence of aiding and abetting in the same murder, and alleging its commission by another aborigine known as "Long Bill." The Crown Prosecutor appeared against, Mr. Barry for the prisoner, and the Rev. Mr. Tuckfield, (a Wesleyan Aboriginal Missionary) undertook the duty of interpreter. The prisoner pleaded "Not Guilty," and on its being explained to him that he had the right to challenge any of the jury, he replied "Very well," which Mr. Barry submitted was tantamount to challenging the whole.
The offence was averred to have been committed on the 22nd January, at Fyansford, near an out-station of Mr. Manifold. A Mr. Cosgrave and a servant named James were travelling with a dray, some cattle and a mule, the dray being driven by a blackfellow from Sydney, and the deceased was accompanying them. They were followed by a mob of twelve or fourteen aborigines (including the prisoner) who threatened to kill the boy, and Tommy, the better as he thought to provide for his own safety, jumped upon the mule, which so frightened the animal that it rushed in amongst the cattle. The blacks, dashing after the mule, pulled the boy off, threw him on the ground, and whilst he was down one of the savages, who was armed with a gun, fired at him. Spears were also cast, and several were found sticking in his dead body when it was recovered. The prisoner, who was one of what was known as the "Janga" tribe, was found "Guilty" of aiding and abetting, but recommended to mercy. The Judge passed sentence of death which was subsequently mitigated to transportation for life.
Highway Robbery and Attempted Murder.—17th May, 1844.
John Abbot was arraigned for having, on the 24th March, at the Honeysuckle Range, near Mount Rouse, robbed one John Buchannan, and afterwards discharged a pistol at, and wounded him. Mr. Raymond was assigned for the defence.
John Buchannan had been in the employ of the Messrs. Burchett for two years, and was paid his wages preparatory to leaving the station. On the day mentioned he set forth with William Holmes, a mate, intending to proceed to the station of Captain Webster. They reached a place called Honeysuckle Scrub, when the prisoner, and one Peter Stratton, dashed suddenly from the bush, and one of them sung out "Come on Buchannan, we want your cheque." Abbott and Stratton were in the men's hut at Burchett's when Buchannan was paid. As the two robbers approached, the prisoner cocked a pistol and presented it at Buchannan, who instantly handed him a cheque for £21 4s. 6d., which the prisoner passed to Stratton, who was armed with a carbine and pistol. The prisoner next ordered Buchannan and Holmes to go with him into the bush, as he intended to tie them up. They complied and. Stratton walked behind to keep guard. When about 40 yards off the road, the prisoner pinioned each of them so tightly that their elbows touched, and they were placed back to back. Their two dogs were next fastened to a tree, and prisoner and Stratton commenced firing at the men, as if at a target. Buchannan received five wounds about the breast, though none of them proved fatal. Holmes escaped with a trifling scratch. The robbers ran away, leaving Buchannan lying on the ground. Holmes having loosed his bonds, freed Buchannan, who with great difficulty and suffering much agony, was got back to the station by his companion, and intelligence of the atrocity was sent by mounted express to the police authorities at Geelong. It was believed that Buchannan would die of his wounds, but he recovered. The cashing of the stolen cheque at a bush public house afforded a clue which led to the arrest of the prisoner. Stratton disappeared and all traces of him were lost until the following year. Abbott was found "Guilty," and Judge Jeffcott, in pronouncing sentence of death, was so much affected that on concluding he shed tears, and the prisoner, on his return from the Court-house to the gaol, remarked to one of the turnkeys, "What a kind-hearted man that Judge is; he seemed so much affected in sentencing me, that I be blowed if he did not almost make me cry."
John Abbott went under the two aliases of Sullivan and Slater, and was nicknamed "Jack the Sawyer." He was born of Irish parents and as a sailor he knocked about the world for some years, until he arrived in Port Phillip. He was sent to prison for three months, after which he took to the bush, and nothing further was heard of him till this Mount Rouse affair. He was believed to be a desperado, so after his condemnation he was heavily ironed, and confined in the most secure portion of the gaol, and was constantly watched by a warder day and night. He declared that when he stood on the scaffold he would make such horrible revelations as would frighten all who should hear him. The public looked for his execution, but the miscreant dodged the hangman, as the Executive Council had commuted the capital punishment to transportation for life. The discovery of some technical flaw in the trial was said to be the cause of such mis-timed leniency, but the real reason will be found set forth in the chapter on "Executions." A reward was offered for the capture of Peter Stratton, and when in Melbourne he was arrested for drunkenness by Chief-Constable Sugden, who fancied he answered the description of the man so much wanted. Further inquiries established his identity, and he was convicted of the same offence as Abbott, on the 14th March, 1845. He was also sentenced to death, but for the same reason as interposed to save the neck of his companion in guilt, was relegated to the same period of penal servitude.
An Action for Libel.—2nd August, 1844.
Stephen v. M'Combie.
This was an action tried before Judge Jeffcott and two Assessors, to recover damages for the publication of "a false, scandalous, and malicious libel." Counsel for plaintiff, Messrs. Barry and Pohlman; for defendant, Mr. Williams.
The parties to this suit were well-known public characters for many years. The complainant was Mr. John Stephen, a member of the Town Council, an Advocate at the Police Court, and a free lance in newspaper circles. Defendant was Mr. Thomas M'Combie, a voluminous, if not popular writer, also one of the Civic body, and Editor and proprietor of the Port Phillip Gazette.
The plaintiff had ordered a coat from a tailor named M'Namara but did not pay for it. "Mac" was about the last man in Melbourne to be done out of his money; so he sued Stephen, got a verdict, and levied upon a boat supposed to belong to the defaulting debtor. Mr. James Warman, an attaché of the Stephen connection, claimed the boat as his property, and the execution was withdrawn. Some short time before this the boat had been placed in the hands of one Watson for repairs, and Watson, taking a fancy to it, was disposed to stick to the craft, when he was summoned before the Police Court for unlawful detention by Stephen, who deposed that the boat belonged to him. Stephen's affidavit was filed in the Court, and M'Namara's Solicitor applied for a copy with the intention of commencing ulterior proceedings against Stephen. This led to the affidavit being looked up, but look up or look down, or anywhere, no affidavit could be found, for it had either been abstracted, or vanished through some mysterious agency; whereupon a paragraph appeared in the Gazette in reference to the matter, in which insinuations were made the reverse of complimentary to Stephen. In fact, it was broadly hinted that he knew much more about the fate of the lost document than it would be agreeable for him to acknowledge; and this constituted the libel complained of.
In defence it was urged that the alleged libel was nothing more than a newspaper report, and fully warranted by the facts disclosed at the Police Court. Witnesses were also called as to the repute of the plaintiff, and the late Mr. J. T. Smith swore "that he did not know a more worthless character in the Province," but it must be stated that between Stephen and Smith there was always some feud at work, either Masonic, Civic, or otherwise. A verdict for £50 damages was returned.
A "Black" Murder.—14th March, 1845.
Nigolobin, alias "John Bull," an aboriginal native, was indicted for murdering Booby, another aborigine, by spearing him at Keilor on the 12th December, 1844. The prisoner belonged to the Mount Macedon, Booby to the Barrabool, tribe, and the latter was employed on the station of Mr. Leslie Foster. As he was returning home from Melbourne with a couple of white men, the dray in which they travelled, when beyond Flemington, was surrounded by some blackfellows, one of whom threw a spear which perforated the deceased's body, and he died within two days. The question turned upon the identity of the murderer, and one of the white men (named Fitzgerald) swore that he saw the prisoner, spear in hand, approach the dray and cast it. He heard the deceased cry out, and saw the spear sticking in him. On the other hand, Sergeant Bennett, of the Mounted Police, deposed to having arrested, for the same offence, a blackfellow of the Buninyong tribe, named Wundella, who afterwards escaped by cutting his handcuffs, and that Wundella had confessed to the killing of Booby, because the Barrabool blacks had wished him to do so. The jury believed the Sergeant, and the prisoner was acquitted.
A Merchant Tried for Fraud.—17th March, 1845.
In the olden time in Melbourne there was a merchant named W————h. Some called him Patrick and others Paddy, but he ignored such common prænomens, and whether he was in reality a "Pat" or a "Pad," he preferred the Latinised formula of "Patricius," and as such lived and traded during an ephemeral career amongst the very old colonists. He was of an enterprising and speculative disposition, for in an era favourable to an excess of over-trading upon a minimum of capital, he was ever to the fore.
His name figures prominently in most of the old dead and buried companies, the rockets that blazed up in our old commercial system, and generally ended as rockets usually do. If Melbourne had not "merchant princes" in those days, it most assuredly had merchants; but the trying times of 1842-3 swept the most of them out of existence. W————h, however, weathered the storm until the early part of 1845, when one morning trouble knocked at his counting-house door, and beckoned him to the Criminal Sessions, where a difficulty that could not be arranged by any civil jurisdiction required his personal attendance. Accordingly on St. Patrick's Day (above all others) "Patricius" William "Paddy" W————h was compelled to put in an appearance to an information charging him with "having, on the 20th January, falsely represented himself to Richard Grice as the owner of a certain quantity of wool, to wit, 3482 lbs., upon which he had obtained an advance of money, with intent to defraud the said Richard Grice," etc. The indictment was subdivided into ten counts, each varying the alleged offence, and the 5th presented it with an intent to defraud John Wright. The plea was "Not Guilty." The prosecution was conducted by the Crown Prosecutor, and the defence by Mr. Williams. The case was a lengthened and complicated one, and entangled in several side-issues with which it was sought to mix it up. Several witnesses were examined, and the jury returned a verdict of "Guilty" on the 5th count, with a recommendation to mercy. The prisoner was remanded until next day for sentence, and allowed bail. On his reappearance, Mr. Williams moved an arrest of judgment on a host of technical points, and after hearing long and learned arguments for and against, Judge Therry took time to consider his decision, the prisoner's bail being enlarged. Finally the Judge held some of the objections to be fatal, and the verdict was set aside, whereupon "Paddy W————h" clapped his hands, and rejoiced, for he had had a precious narrow escape. A Miscarriage of Justice.—21st May, 1845.
A truculent old blackfellow named Koort Koort Kirrup, who was supposed to have committed several daring robberies, and more than one murder, in the Western country, was committed for trial, and sent to Melbourne. There was great difficulty in driving into the grey head of this savage any notion of a trial and its consequences, and he was detained in gaol for some time before the authorities could see their way sufficiently to bring him before a jury. He was arraigned at the Criminal Sessions on the 14th March, but as there was no person capable of interpreting, Judge Therry remanded him. On the 21st May he was indicted for the wilful murder of William M'Kenzie, by striking him with a waddy at the Emu Creek on 5th May, 1842. In the dock the man seemed the incarnation of stupidity, and he looked around with as much unconcern as an old bullock, instead of one of the so-styled "Lords of Creation." A jury was sworn to try the issue of his mental capacity; but his only "capacity" was an enormous one for the absorption of Government rations. The jury came to the conclusion that a gum-tree log had as much comprehension of the goings-on in Court as the prisoner, and it was impossible, according to any recognized principle of jurisprudence, to go further. A man could not be tried, and, probably, hanged, unless he had some rational glimmerings of the functions of Judge and jury. The Judge, however, assumed the responsibility of detaining the prisoner in custody until the Executive decided what was to be done with him. He returned to gaol, where he continued for several weeks, and was then turned over to the charge of the Assistant Aboriginal Protector for the Western District. He died with his tribe in about a year after his release.
Embezzlement at the Treasury.—17th July, 1845.
William V. M'Vitie was indicted for embezzling, on the 25th April, £40, the property of Her Majesty; and there were four counts alternating the offence. The Crown Prosecutor conducted the prosecution, and Messrs. Williams and Stawell the defence.
The accused was Chief Clerk in the Sub-Treasury at Melbourne. On a certain day he received £33 13s., i.e. two license fees of £10 each, and two assessments of £6 16s. 6d. each. The amount was paid by a Mr. Turnbull with a £40 cheque, and he received the balance of £6 7s., in cash. The embezzlement of the whole constituted the charge. The evidence disclosed the facts that the mode of doing business at the Treasury was irregular and unsystematic, and that however fitted for the satisfactory performance of other duties the Sub-Treasurer (Captain Lonsdale) might be, he certainly was not at home in supervising the Provincial Exchequer. M'Vitie had been five years in the appointment, and there was never before the least ground for the slightest imputation on his integrity. The Judge's summing up was much in his favour, and the jury acquitted him. Public opinion seemed to discredit the notion of his guilt, the presumption being that the accused had got into trouble through some mistake; a theory justified by some persons owing to the following circumstance which subsequently transpired:— "At the period of the supposed fraud, the Treasurer's office was in a dilapidated building on Batman's Hill, and some years after, when they were moving away, a roll of bank notes[1] (between £30 and £40) was discovered crushed behind an old pigeon-hole; and this was probably the identical sum for which M'Vitie was deficient in his accounts, and which had doubtless got into its hiding place by accident."
- ↑ It is previously stated that the money paid by Mr. Turnbull consisted of a cheque of exactly £40—Ed.