Spotlight: COUNTY OF BOURKE POLICE COURT (26/08/1853)

Sydney Morning Herald (NSW : 1842 – 1954), Friday 26 August 1853, page 6


Thursday, August 25th.

(Before C. Payne, N. A Fenwick, R. A. Balsirnie, A.F.A. Greeves, William Thomas, and Charles Vaughan, Esqrs., J.P.’s.)

THE PRIVATE ESCORT ROBBERY — EXAMINATION OF THE PRISONERS. — It being generally understood that the examination of witnesses would be today proceeded with in this long-pending and highly-interesting case, the Court was densely crowded, and very many could not be accommodated with even standing room. About eleven o’clock the following prisoners (handcuffed) were placed at the bar, viz,. George Elston, George Melville, George Wilson, William Atkins, Edward McEvoy, and Robert Harding.

Agnes Atkins, the wife of the male prisoner of that name, charged as an accessory, was allowed a chair on the floor of the Court. Mr. Read appeared for the prisoners.

Mr. Read complained to the Court that his clients were placed at the bar in shackles, which was a breach of the constitutional law of England. The accused should be allowed to come up free in mind and in body, and he hoped the bench would not permit such a violation of what was the privilege of every man previous to conviction. He also com-plained of being prevented from communi-cating with his clients, as otherwise he could not undertake to do justice to their defence.

The bench declined to make any order with reference to the first portion of Mr. Read’s remarks, but allowed him to hold communication with the prisoners. The Inspector of police conducted the prosecution.

Mr. James Ashley sworn. From information I received, I proceeded, accompanied by detectives Murray and Simcock, on the 11th of August on board the barque Collooney, then lying in Hobson’s Bay, and from further information I there received, I made a search in one of the cabins, where I found a leather trunk, which I opened. It contained two parcels of sovereigns, viz., one was a small leathern bag, containing £403 10s in gold; the other was a sort of reticule, containing 720 sovereigns. Amongst other things in the trunk, I found several papers and receipts, bearing the name of George Melville. I took possession of the property, and left the vessel. On the 12th August, with the same officers and a man named George Francis, I went to the house of a man named John Harris, hay and corn dealer, in Little Bourke-street, where I saw the prisoner, William Atkins, who was immediately pointed out to me by Francis as one of the men who made the attack on and robbed the Private Escort. I arrested him, and told him the nature of the charge against him. Searching him, I found on his person £3 10s in gold, and a draft on the Bank of Australasia (Sydney) in favour of William Atkins, for £100. We went into an adjoining room, where we saw the female prisoner, and asking her name she told me “she was Agnes Atkins, the wife of the man whom we had in custody.” I intimated to her that I should arrest her, on suspicion of being implicated in the same charge; and I did so. I asked if she had any money, and she admitted having some, and I took from her pocket a parcel containing £81 10s., in gold. I questioned her closely if she had anymore money, and she replied she had not. I then left the room for a very short time, leaving her and Francis together. In about two minutes the latter came out, and told me to go in and search a plaid dress of Mrs. Atkins, that I should find in the room. I did so, and finding the dress in question lying over a barrel, I took hold of it, when she snatched it out of my hand.

(The female prisoner here burst out crying, and it was some time before she could be quieted.)

Examination resumed. I snatched back the dress, and on searching I found in the body lining, a draft on the New South Wales Bank (Sydney), for £700, payable to Agnes McLaughlin. I omitted to mention that on searching Atkins, the male prisoner, I found on him a receipt for £24 for money paid for cabin passages for Mr. and Mrs. Atkins in the Hellespont steamer to Sydney. I then had the parties removed to the lock-up. About 8 o’clock the same evening I went with the same two officers and Francis to the North Star Hotel, where I arrested George Melville. I told him the nature of my charge against him, and on searching found on him £100 10s. in gold, silver and notes, a silver watch and guard, a six-barrelled revolver and an American gold dollar. Him I also confined in the watchhouse. I should have said that when we first entered Harris’s house, Francis pointed to Atkins and exclaimed, “he is one of the men, seize him.”

Cross-examined by Mr Read: I arrested three other men after Atkins was taken, on information received from Francis. The latter is now dead. Two of the men so arrested are now before the Court, and the other was discharged yesterday. Melville’s wife was possessed of some property when she married him, and they then resided opposite to me, when they carried on the business of a fruit and oyster shop in Little Bourke-street, near the Theatre. They were married about twelve months ago.

Hindle Thompson sworn — I am a detective policeman; and on the 11th August I was aboard the ship Madagascar, then lying in Hobson’s Bay, where I arrested prisoner George Wilson on suspicion of being one of the Escort robbers. I informed him of the charge against him, and then took him into the captain’s cabin, where I searched him. I found 302 sovereigns on his person. Going below with him into his cabin, the prisoner got hold of a pair of trowsers, in which I found 56 sovereigns, and then bringing him ashore, I confined him.

Mr. Read intimated that he had no questions to ask.

Samuel Davis sworn — I am a trooper in the Private Escort. On the 20th July last, our party left the McIvor Diggings about 9 a.m. The party consisted of a superintendent, a sergeant, three troopers (including myself), and the cart driver. We were escorting gold and specie from McIvor to Kyneton, via the road to Melbourne. When we reached about four miles on McIvor side of the Mia Mia Inn, I saw Sergeant Duins, who was then riding in advance, motion with his hand to the right side of the road. I followed his motion, and that moment we received a volley of shots from a sort of Mia Mia on the side of the road. I was not shot down in the first instance, and drawing my pistol, fired at a man, who fired at me at the same time. I received his discharge in the neck, jaw, and nose, and tumbled from my horse. When on the ground I noticed two men, one on each wheel; they drew the boxes (containing the gold and specie) out of the cart, when some other men lifted them up and conveyed them into the bush. Looking around I saw Fooks, the driver, and trooper Froaswater lying on the ground. I asked them whether they were hurt, when Fooks replied, “I am a dead man.” The other asked me “if I could get up to get a knife and cut his trousers, as he was shot through the thigh.” Not having a knife on my person, I looked round to see if I could find one, and immediately beheld a blue coat near me on the ground. It did not belong to our party, and on searching the pockets found the knife produced. Whilst cutting the trowsers from Froaswater, I saw Morton, another of the troopers, stretched on the ground, and his horse dead and lying on him. He begged me either to remove or shift the horse off him, but I found I could not do so. Considering what I had best do, I walked some distance along the road, towards the Mia Mia Inn, and met a man coming up as if making for McIvor. I asked him to lend us assistance as we had been stuck up, and he did so, and lifted the wounded men into the cart. I mounted one horse, leading two others, and proceeded towards the McIvor. After going about a quarter of a mile, we met Mr. Warner (the Superintendent), returning from the direction of McIvor, with a party of men. He took my horse from me, and mounted

man who was on foot. I then walked on to Patterson’s Station, where I was placed upon a horse, and taken to the Government camp. Yesterday, the 24th August, I went to the Melbourne jail, where a number of men were in a line before me, and in them I recognized two men whom I believe to have been amongst the parties who attacked us. (The witness was here directed to look towards the dock, and point out the two men referred to if he could, which he did, and immediately identified the prisoner Melville; the second he declared he did not see; for a very good reason, because, being the second approver John Francis, he was not arraigned.) I swear to Melville, to the best of my belief.

Cross-examined — I should imagine that the party attacking us consisted of nine or ten men.

Captain McMahon, the Inspector of Police, tendered his evidence as to a statement made to him by Francis, the suicide approver, to which Mr. Read objected, as it was not a dying deposition, or made in the presence of the prisoners.

Captain McMahon, in reply to a question from the Bench, said the statement in question was made to him in his own office after the discharge of Francis from the Police Court. His reason for wishing to make it public was to explain certain circumstances which induced the arrest of certain of the prisoners, for which he had been threatened by Mr. John Stephen with an action for false imprisonment.

The Bench, under such circumstances, decided on hearing the statement, and Mr. McMahon deposed as follows. On or about the 12th August I sent for the younger Francis, then a prisoner in the Swanston-street watchhouse, in order to hold some private conversation with him. When he came to my office, I told him, as he might see by the notices posted on the gates, that one of the parties concerned in the outrage would receive a free pardon, a passage out of the colony, and £500, on turning approver. After considerable hesitation he admitted —

Mr. Read. — Capt. McMahon, were the prisoners present?

Capt. McMahon. — No, they were not.

Mr. Read should now very strongly press his objection, which was founded on every principle of law. Statements could only be given and received in evidence when a party was in extremis, and fully sensible of his approaching death, and even then it should be properly reduced to writing.

The Bench overruled the objection, and on the application of Mr. Read, the clerk was directed to note the objection on the margin of the deposition.

Captain McMahon. — After considerable hesitation, Francis admitted that he was one of the party who attacked the Private Escort near McIvor, and also informed me of the names of the others who were his companions on that occasion, and he assisted in their apprehension. The names of the whole party, as he gave them, were thus:— George Francis (himself), John Francis, Joe Grey alias McNutty (who could be found at Tommy Coulon’s house, in Little Bourke-street), another named Dilly, boarding at the house of the brother of the proprietor of the Bush Inn; Bob Harding (at McEvoy’s tent, opposite the Private Escort Company, McIvor); George Elston, (a fighting man, with one tooth out, to be found at McIvor); George Melville, George Wilson, two others, names unknown (one of them very much pockmarked, dark-brown hair, 5ft. 7 or 8 in. in height, and about 30 years of age); the other man, with light brown hair, 5 ft. 6in., about 27 years of age, and went by the name of “Little Billy,” who lived with a woman called Kitty, down the road on the left hand side near the Bald Hill, McIvor. I then handed over the prisoner (Francis) to the chief detective officer, and desired the latter to take Francis about with him for the purpose of assisting in the apprehension of the remainder. I also promised him that I would not use his evidence against his brother, and would exert myself to have him included in the pardon.

At this stage of the proceedings, the second approver was introduced into the court, and, as may be expected, was an object of universal attention. Dark and bitter were the scowls of hate and vengeance darted at him by some of the prisoners; but he appeared comparatively unmoved, and gave the following evidence in a calm and firm, though low tone of voice:—

My name is John Francis, and I arrived in Van Diemen’s Land under a sentence of ten years’ transportation. My sentence has not yet expired, but will in September. On the 20th July last, I left the McIvor in company with George Francis (my brother), George Wilson, George Melville, William Atkins, and Joseph Grey. Of those I now recognise Melville, Wilson, and Atkins, as three of the party named. We went through the bush from the McIvor towards the Mia Mia Inn, and stopped on the side of the road a few miles from the inn alluded to. We soon after heard the Private Escort coming up, and it was now between ten and eleven in the morning. The Escort troop was coming from McIvor, and (I believe) going towards Kyneton. Previous to this we arranged a few branches of trees, and placed two men behind, the rest of them (and I) being stationed behind trees about 30 yards higher up the road. I heard some person of the Escort cry halt, and on looking out, I saw some of the troopers firing at the two men behind the branches. We then, the rest of us, rushed down to their assistance. We all challenged the Escort men to stand, when they refused, and fired on us, when a general fight commenced. I fired at the Escort troop and observed four of the troopers wounded; two of the latter escaped, and were followed by two of us, viz., myself and the prisoner Wilson followed them, calling upon them to surrender. They replied by shooting at us and galloping away. I and Wilson then went down the road, and gathering up all the fire arms we could see, we followed Atkins, Melville, Grey, and George Francis, who proceded us into the bush, whither the boxes of gold had been carried, and we then took the gold out of the boxes. It was whilst I and Wilson were after the two men that the gold had been removed from the dray. Where the gold was taken out of the boxes was some 200 yards from off the road in the bush, and after doing so, we travelled about seven miles through the country that day, and camped in the bush. We resumed our route on the following morning; having first divided the gold. We passed the second night by a river’s side, (I believe) on Mollison’s run, and continued our route in the same direction, (always keeping the bush and avoiding the road. The next night we passed in the bush near Kilmore, and then on the Sunday morning we all left together for Melbourne, but separated on coming to the Rocky Water Holes, Grey and George Francis accompanying me into Melbourne. That night we reached town, and proceeded to my house at Collingwood Flat, where I saw Wilson and Atkins, it being previously arranged that we were to meet there. They remained at my house all night, and on the Tuesday after Atkins left for the diggings, Grey and Wilson remaining with me. On the day before I was apprehended I saw the prisoner Melville in Melbourne, when he told me he was going to the Mauritius. About seven days after leaving town, Atkins returned from the diggings, and I saw him in town. He told me he had been to the McIvor. The last time I saw Grey, he said he was going to Adelaide. The prisoner Wilson, I, and my brother were to have started for England in the Madagascar, and we had accordingly engaged passages in that vessel. My wife and George Francis’s wife were to go with us. I gave my share of the gold to George Francis and he had it in his box; I was soon after apprehended on board the Madagascar on a charge of stealing a pistol, and was subsequently remanded for robbing the Escort. The last time I saw George Francis was in this Court, since which time I have had no communication with him. I sent a message to you (Captain McMahon) from the jail —.

Mr. Read objected to the reception of this evidence, but was overruled.

Examination resumed — I sent a message to Capt. McMahon from the jail, and I subsequently told him all the proceedings.

To Mr. Read — The prisoners were not then present.

Examination resumed. — The confession was voluntary on my part, and there was no inducement held out to me. After the con-fession, Captain McMahon told me that he would send me a free man from the Colony, with my wife. On arranging for this attack, we had resolved, if possible, not to take human life; for we thought we could get the gold without firing. I did not see any of our party shoot at the men in advance. The first firing was commenced by the Escort party.

Mr. Read said he should not ask the witness a single question, as he was satisfied that the magistrates might take the statement for what it was worth.

Trooper Davis recalled and re-examined:

I now recognise the second man I saw in the jail here (pointing to Francis). The firing I am certain commenced on the part of the robbers. I swear there was not a shot fired until the volley came from the Mia Mia. I was the first of our men, I think, who fired; and before I did so, I saw three of the latter shot down on the road.

The approver (Francis) was now recalled: I believe what led to the attack on the part of the Escort was their seeing the two men behind the bushes. The latter were placed in ambuscade, to allow the troop to pass, and then block up their way at the rear. I believe, however, that the troopers saw the guns of the two men through the bushes, and then fired on them. I was about thirty yards from the bushes at the time.

Alexander Eason, sworn: I belong to the Detective Police; on Wednesday the 10th August, I went with Detective Thompson, on board the Madagascar, for the purpose of apprehending two men named Francis on warrant. I accordingly arrested John Francis, George Francis not being there. Incoming from the ship to the beach, John Francis re-quested me to allow him to steer the boat, and I did so. His wife was in the boat with us at the time, and Francis brought us along side the barque Collooney, and whilst along side, the prisoner Melville came down the ship’s side, and sat for some time in the boat with us, Melville offered to come ashore and bail Francis out, but the latter declined the offer, and requested Melville to return on board the vessel with his (Francis) wife, who went on board, and remained there. Melville did so; I brought Francis ashore. He was charged next day with stealing a pistol, but was discharged, and subsequently re-arrested for the Escort robbery. (We may here remark, that the issue of a warrant, for the apprehen-sion of the Francises, on a charge of pistol-stealing, was a mere ruse to get hold of them on suspicion of the greater offence.)

William Symons, a cadet in the Mounted Police, deposed: On Friday last, the 19th inst., I apprehended George Francis, in the station of Mr. Jefferies, on the Campaspe. I last saw him in the Rocky Water Holes when he was dead.

Captain McMahon said this was all the evidence he was then prepared with.

Mr Read submitted that there was no case whatever against Mrs. Atkins, and endeavoured to show that the Bank draft found sewed up in her dress had been put there by the deceased approver (George Francis). Then as to the prisoners McEvoy, Elson, and Harding, there was not a particle of proof against them.

Captain McMahon was informed that the man Grey had been arrested in Portland, and confessed the crime. This he could scarcely believe, but if so, it might in some way alter the case. As to the men Harding, Elson, and McEvoy, he thought there must be some mistake. They had been taken into custody on the statement of the former Francis, and he (Capt. McM.) did not believe them to have been implicated in the robbery.

Mr. Read remarked that the three men last referred to, had already been apprehended at the McIvor, confronted there with the Escort troopers, and discharged.

The Bench, through Mr. Fenwick, the chair-man, decided upon remanding the prisoners McEvoy, Elson, and Harding, for one week; and as to the course they ought to pursue with reference to Melville, Wilson, Atkins, and the latter’s wife, they entertained no doubt. They should therefore commit Melville, Wilson, and Atkins, to take their trial for shooting at and robbing the Private Escort, and Atkins’s wife as an accessory after the fact. As soon as this decision was made known, some of the prisoners cried out shame, and the female rushed for-ward to speak to her husband, but was pre-vented by the police from doing so.

Mr. Read hinted something about bail, to which, as far as the remanded prisoners were concerned, Captain McMahon had no great objection; but in the case of those committed, it would not be listened to.

The prisoners were then removed, in custody.

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