Sydney Monitor (NSW : 1828 – 1838), Wednesday 22 June 1831, page 2
SUPREME CRIMINAL COURT.
THURSDAY. – Before Mr. Justice Stephen and the usual Commission.
Michael O’Brien, Mary O’Brien, John O’Hara, James O’Hara, Mary O’Hara, Mary Ann O’Hara, and Michael Cantwell, were indicted for receiving stolen property belonging to various persons on the 18th January 1831, at the Seven Hills, New South Wales, knowing the same to have been stolen.
John Walmsley sworn — Mr. Williams objected to the evidence of Walmsley being taken, on the ground of his being an attainted felon under sentence of death, and that the Governor’s pardon produced was of no weight, he, the Governor, having no power to grant a pardon, that being vested only in the King, and must pass the Great Seal before it would he admitted as a legal instrument.
Mr. Therry took the same objections; they were over-ruled by the Court, and the Examination by the Attorney-General continued — My name is John Walmsley; I know all the prisoners at the bar; I have known them about 8 or 9 months, but I cannot swear exactly to time; I have seen them frequently within the last 8 or 9 months; they all lived at the Seven Hills, save John and James O’Hara, and they were backwards and forwards frequently; they had a farm at a place called little Doual; Mrs. O’Brien, Mary O’Hara, and Mary Ann O’Hara introduced me to the male prisoners; they told me to come again and bring them some prints, some calicoes, and other things which I had taken from Mr. McQuade’s cart; we had had conversation about that robbery, and John Donohoe and William Webber were present at the time; we promised to go back in a fortnight or three weeks and bring them some prints and calicoes; they addressed themselves as much to Webber and Donohoe as they did to me; when we parted from them going on our journey towards the Cow-pastures, Donohoe was shot by the Mounted Police; Webber and I made our escape; this happened on Mr. Wentworth’s farm called Greendale, within a few miles of the Cow-pastures; the mounted police halloed out to us, and asked us who we were? just before sun-down in the evening; we made them no answer, and they fired on us directly; Donohoe was shot dead; Webber and I made our escape, and got out on the Liverpool-road; we had no communication with the prisoners at the bar until about a fortnight afterwards, when Webber and I went again to the house of the prisoner O’Brien; we saw the two girls first, Mary and Mary Ann O’Hara, at the house, but we had left the prints and calicos in the bush on Michael O’Brien’s land; the girls asked us where we had the property? and we told them it was on their ground close by the water-hole; the girls then took the bucket and went down to the water-hole for a bucket of water; we had left them, and gone round to where the property was, and were there when they came down; the girls stopped so long in the bush talking to us that Mrs. O’Brien came down to see what was the matter; the girls gave the bucket of water to Mrs. O’Brien, and they took the prints and calicos up to the house; there were 17 or 18 pieces of print and 2 pieces of calico; when the girls took it to the house we went round another way, and came close up to the house, about 6 or 7 rod away from it in the bush; we did not go into the house at that time, as the girls told us we had better stop in the bush until their godfather, Michael O’Brien came home, as he would not be long; Michael O’Brien came home soon after, came into the bush to us, and we then went into the house; he enquired about our other comrade; he meant Donohoe; we talked some time in the bush before we entered the house with O’Brien, and Webber put his hand in his pocket and gave him a sterling note; Michael O’Brien then asked us in, and when we were in the house we sent him off to Parramatta for some rum and gunpowder; whiles we were drinking, James O’Hara and another man named John Hughes came from little Doual in a cart; as soon as James O’Hara came in, the girls told him that we were come, and were then in the bed-room drinking; he came into us, and we sat up drinking the greater part of the night, and then lay down to rest; the next morning James O’Hara and John Hughes went out to the farm again, and took some of the prints with them; they had heard of the robbery of Mr. McQuade’s cart, and asked us whether we had done it? we told them we had, and that the prints we then brought them formed part of the robbery; it was Michael O’Brien asked me about McQuade’s robbery, and Mary, Mary Ann, and James O’Hara were present when we mentioned having robbed the cart; we stopped at the house two days after James O’Hara and Hughes left to go to the farm; during the time we were at the house, I saw the female prisoners cut up some of the prints and make gowns and bed quilts of them; there was nothing else given to them on that visit; about the time of the Parramatta races we returned to O’Brien’s house, and we then saw John O’Hara, Mary O’Hara, and Mary Ann O’Hara, who came from the house with two buckets and a washing tub for water; we were in the bush and hailed them, when all three of them came to us; we took John O’Hara to be his brother James, and I said, “is that James” he replied, “no, it is John;” I had never seen him before; we sat down, and I gave John O’Hara eighteen shillings to go for half a gallon of rum; the girls and John asked us up to the house, and told us that Michael O’Brien and James O’Hara were at home; we went round the bush and went in to the house, when Michael O’Brien put the saddle on the horse and went away for the rum; I had a watch which I had robbed Mr Crawford of on the first clay of the races; I believe Mr Crawford’s christian name is Robert; it was a silver watch with gold chain and seals; John O’Hara asked me for the watch, and I gave it to him, telling him to be careful of it, as it belonged to Mr. Crawford; he answered, “never mind, I will take care he never gets it any more, I will take care of it;” Webber had another watch which belonged to Mr. Airds, the Superintendent of Public Works at Parramatta; Webber and I had robbed Mr. Aird of the watch, which was a silver one, on the same morning that we robbed Mr. Robert Crawford; Webber gave the watch to James O’Hara, and at the same time told him that he had robbed Mr. Aird of it; Webber had a hat which was also taken from Mr. Aird, and begave that; James O’Hara; it was a black beaver hat; there was also a black hat belonging to Mr. Crawford given by me to John O’Hara, and I gave James O’Hara a sovereign; on the second visit, both myself and Webber stopped in the house four or five days, during which time, we ate and drank in the house, and when we were going away, they gave us flour and provisions to carry with us; all the family was there then; we went there a third time, but I cannot pretend to mention the time as we were there so frequently I cannot distinguish the periods; On one of the times we visited them, we had stopped Mr. Mowatt on the Liverpool road and taken a large blue top coat, a black coat, a gold watch, two dollars in money, a Leghorn bonnet, and other things; of these, I gave the gold watch to Michael O’Brien, who said he was an emancipated man; that he would sell the gold watch, and that the money he got for it would take him out of the country; the black coat was also given to Michael O’Brien; the coat had been taken from Mr. Francis Mowatt; O’Brien had the newspaper in which the robbery of Mr. Mowatt was described, and upon reading the account we told Michael O’Brien, it was the same man to whom the things belonged; Webber gave the Leghorn bonnet to Mary O’Hara, and the lining of the coat to Mary Ann O’Hara; the girls were present when I said that I had robbed them; the lining of the coat was cut up and made a skirt of, while I was in the room; we slept there that night, and always stopped at the house two or three days each time that we went; I cannot recollect the day nor the month in which we robbed Mr. Mowatt, or Mr. McQuade; we took a great number of pieces of prints and calicoes from Mr. Macquade’s cart, part of which we took as I have stated to O’Brien’s, and the other remained in Dr. Harris’s bush; it was on the Windsor road we robbed Mr. McQuade’s cart and took 50 pieces of print, 5 pieces of calicoe, rum, tea, and sugar from it; we also robbed Mr. McLeay’s cart on the other side of Liverpool; it was early in the morning, on a Saturday as they were returning from the market; cannot remember the month; it was long before harvest; we took two rolls of canvas, which we carried to Michael O’Brien’s, I believe (but cannot swear so) that it was made into bags, as I saw some canvas of the same sort made into bags at the Police Office; we also robbed Mr. Henry Hart’s cart, and took a chest of tea and some other things.
Cross examined by Dr. Wardell — I have seen that pardon yesterday, but have never had it in my possession; I believe it was read to me in the cells by the Sheriff, but I have quite forgotten what he said at that time upon the subject; I won’t give an answer as to whether I thought little or much about it; I did care about it, for I thought my life was saved when he read it; as I believed it to be a respite; I have forgotten every word that was said with respect to the pardon in the cells; I understood when it was read to me, that I was free from all the robberies I had committed in the Colony ; I understood that I was released from all the burglaries, murders, and robberies that I might have committed in the Colony; I cannot tell the favourable circumstances mentioned in the pardon; but I think they are the informations I gave; I understood that it was in consequence of my promising to give information against the parties that I received my pardon. I had no promises made to me for giving information against the parties concerned with me; what information I have given, was to do the country good at large, and myself in particular; I do not know whether I should have received my pardon if I had refused to give evidence, but I do not think I should ; it was in expectation that I should give evidence against the parties that I received my pardon; I was encouraged by the pardon to give evidence; I did understand that all my crimes were covered by the pardon, but not my sins; there is a deal of difference between crimes and sins.
Dr Wardell — True, I stand corrected Sir.
Continued — I understood the pardon was given to induce me to give evidence against the parties; I was, I should think, to lose the benefit of the pardon, if I did not give my evidence; I had undertaken to give my evidence for the pardon, and expected that all prosecutions would drop for what I have done in the Colony; I have not been tried for robbing Mr Crawford, or Mr. McQuade, or Mr. Mowatt; I won’t answer to the question of who shot Mr. Clements; I am not afraid to answer you, but will not until ordered by His Honor; I do not know anything about blowing a constable’s arm off; I would have split if I had been told that I should be prosecuted for the robberies after I had given my evidence; our acquaintance with the prisoners commenced through Donahoe; it could not be a robbery at O’Brien’s house, as we took nothing, nor was it our intention to rob the house when we went; the only thing we went for the first time, was a little flour, which was given to us by Mrs. O’Brien, and the two girls; this was the first time they saw me there; if it had not been given to us, there is no doubt we should have taken it by some means; there were three of us at that time, and we had no fight; there are some houses thereabouts; a man named Brien lives about a hundred rod from their house, Brien’s house can be seen from O’Brien’s, the ground being clear between them ; I cannot say how far the bush is from Michael O’Brien’s; there are some other persons live about a mile from them, but I do not know their names; if we liked we could have robbed and murdered them before any assistance came; we never had any more with us but myself, Webber and Donahoe; we had a fowling piece and a brace of pistols each; I do not know where John Hughes is; he was at the Police Office, and was discharged; we were not strong enough to frighten the whole of the prisoners at the bar; we have often been in the kitchen and our arms lying in the bed-room; if they wished, they could have taken us treacherously any time; we have been in all parts of the house, and were not at all times armed; we never expected to be taken by them; we had a bad character in the neighbourhood as blood-thirsty men we should not have served them out if they attempted to betray us, and we had escaped; I have no revengeful feelings; I was first led away into the bush by some men who were in Plumley’s gang; I was in that gang; I should not have liked to served out Plumley for his treatment to me; he did not treat me kindly or otherwise; he treated me the same as other men; we were daily risking our lives to support them; we took the property to these houses because they could tell us where the constables and soldiers were, and they gave us tea and sugar, and flour; we gave them the property out of charity; if men have not friends when they are “in the bush”, they will not reign long; I do not know of the other people to whom I gave part of the property; they are poor people, and were objects of my charity; John Hughes lives out at Big Doural; they invited us to bring the plunder to their house, as soon as they were acquainted with us; I was tried and cast for death, and lay in the condemned cell expecting to be executed, but I did not expect to be saved when I gave the information; I never sent my compliments to Mr. McLeay, to say I would split if I was let off, nor did I ever hear that Webber did; I gave my evidence against the prisoners in expectation of receiving my pardon.
(Dr. Wardell here took objections to the evidence of the witness Walmsley, as to its admissibility, which were over-ruled by the Court, and the examination proceeded.)
Thomas Quigley- I am a Serjeant in the Mounted Police; I went to the premises of Michael O’Brien on or about 14th January last; I saw two of the female prisoners or all three; Captain Forbes was with me, He ordered me to search the dwelling and premises. He went with me; I took possession of two canvass bed-ticks, one old black coat, one gown, three bed covers, 1 pistol, 1 fowling piece, and 8 canvass sacks; (I delivered them to the Police Office in Sydney) I marked all the articles and should know them again; I did not see Michael O’Brien there ; (property produced) these are the articles I found at the prisoner O’Brien’s house; the female prisoners said they were O’Brien’s property.
Benjamin Hodghen — I am Chief Constable of Windsor. On the 17th January last, I proceeded to the house of Michael O’Brien, and saw Mary O’Hara, Mary Ann O’Hara, and Mary the wife of Michael O’Brien; also the old man Michael Cantwell. I picked up various patterns of prints, which were lying on the ground. I then commenced searching the house, and found a bonnet box under the bed in which was a Leghorn bonnet. I said to the constable that was with me, that it was Mrs. Mowatt’s bonnet? I enquired of the girls where they got the bonnet? they replied, that Mr. O’Brien had brought it from Sydney; I then went into the kitchen, and noticed a white serge petticoat on Mary O’Hara, and I then returned to the bed-room, and found some remnants of surge; that appeared to have been cut from a coat. I put them back into the basket, and I returned to Windsor for a warrant to apprehend the two girls for the petticoat and the bonnet. O’Brien was not at home at this time, and the females told me they thought he was in prison at Sydney. In consequence of Mary Ann O’Hara being very unwell, I did not remove her at that time, before leaving the house, I called Mary Ann (the one that was ill) into a room with myself and the constable, and put the door to. I said to her, “it is evident those bushrangers have been in the habit of coming here, and I request you to tell me the truth.” She said, she never saw them there but once, and that was when they took the flour away. I asked her, where she had seen them then? she answered, at a slip pannel just at the back of the house. I then asked her if she knew them, and she said yes. Who were they said I? she answered Walmsley and Webber. I asked her if they were armed, and she said yes, that they had each a brace of pistols and a gun. I then enquired what they said to her; and she replied, they always enquire first, whether the constables have been here, and the last time I saw them, Mary O’Hara was with them, and Michael O’Brien brought 7 pieces of print and one piece of calico from them; I then went to Windsor for a warrant and on my return next day, found that the two women had been conveyed away by the police, also the box. I then made further search, and found one Indian print quilt, 3 new calico sheets, 6 links of a steel watch chain, 1 white serge petticoat, a quantity of white thread, I roll of narrow white ribband, 1 new India table cloth, 1 new calico shirt, 1 pair of men’s white stockings marked W. Croft, 3 pair of woollen stockings, 1 pair of flannel drawers, 1 red Indian print gown, 7 pair of men’s gloves, 1 small fancy box with a watch paper in it, 4 gold brooches, 1 old paper box with a tooth pick and some other other instruments, I brought away these things, and gave them up the Police in Sydney. I got permission to see Walmsley, and in consequence of information from him I found 17 pieces of prints, on Dr. Harris’s estate, four pieces of calico, and few other things.
Cross-examined by Dr. Wardell, but nothing material elicited.
John Skinner — I am a constable in Sydney. Both the young women were given into my charge. Mr. Thorn and Mr. Jilks told me to take the Leghorn bonnet off the head of the young woman, who is now holding her head down with a straw bonnet on. Her name I believe is Mary O’Hara. I also have a hat which I took from the old Gentleman there with a white head. I believe his name is Michael O’Brien. The hat and bonnet produced are the same.
Michael McQuade — I am a general dealer, and reside at Windsor. In August last, I loaded two carts in Sydney to send to Windsor. In one cart there was a puncheon of rum, a crate of English Delph, 50 pieces of Bengal and India print, 5 pieces of calico, and a quantity of other articles. I did not go with the carts myself, but sent a man who is now here, named James Quinn. I saw some of the same description at the Police office at Sydney and Windsor. They were Bengal print and calico, but I cannot swear to them. They were the common run of Bengal prints and calicoes.
James Quinn — In August or September last I lived in Sydney; I know the last witness Michael McQuade, and went with a cart containing his things to Windsor; about three miles and a half from Windsor I was stopped by three men and taken off the road into the bush; Walmsley presented his fowling-piece to me; I know the other two; they were Donahoe and Webber; they took 50 pieces of Indian print, 5 pieces of calico, about 40lb. of sugar, and half a gallon of rum; I saw the things when I took them in charge from McQuade; the things now produced are of the same description as those I lost, but I cannot swear to them.
Francis Mowatt — I was stopped on the Liverpool-road in the month of August last by Walmsley and Webber; I lost a great variety of wearing apparel amongst which was a large blue cloak lined with white shaloon or serge; I also lost a bonnet belonging to Mrs. Mowatt; I should know the serge again, for when on board the ship my servant spilt a quantity of oil on it, and I think I can swear positively to it; there are also the marks of the loop holes which were on my cloak. There might certainly be similar serge, and it might be, similarly stained ; I am not so positive as to the bonnet as I am to the serge; I cannot swear positively to it, but I think it is it.
James Butler — I am a government man to Mr. McLeay; I was travelling home from market about 6 o’clock in the morning on the 23rd October, and was stopped by two men about 2 miles from Liverpool; the discription of the men answers that of Walmsley and Webber; three bolts of canvas were ta-ken from me; the canvas produced resembles that lost by me.
Mary Ann Evans — I altered a Leghorn hat into a bonnet for Mrs. Mowatt; I should know it again; I believe this to be the bonnet.
E. C. Atkinson — I was robbed on the Western road on the 18th of last November, about three miles from Parramatta, by Walmsley and Webber; they took from me a brown frock coat, black waistcoat, shirt, neckerchief, pocket handkerchief, and a watch with steel link chain, and silk watch-guard; I saw a shirt similar to the one I lost, at the Police Office, but the name was cut out; I also saw a chain at the Police Office.
John White — I was robbed by Walmsley and Webber of a variety of things, about two miles from Mr. Kelly’s, on the Windsor Road; I could not swear to any of the articles again; this is the good gentleman that took the things out of my cart, and the other good gentleman knocked a tooth down my throat; but if it had not been for this chap (Walmsley) I should not have been robbed; I have a handkerchief belonging to this good gentleman at home, which he left in my cart; it is long enough and strong enough to hang him; and to tell you the truth, I should have no objection to have the hanging of him – (much laughing).
Walmsley recalled — The prints produced are the ones I took from Mr.McQuade’s cart, and gave to the prisoners; I saw two butchers come to O’Brien’s house when I was there; I saw Wilkes through the key hole; they came to buy some cattle and an entire horse from Mr. O’Brien; Mr. Wilkes brought a small bottle of brandy from Parramatta with him; in the night Michael O’Brien and the butchers went out to a man named Donald Brien whom lives on the next farm to them; during the time they were away, Webber and I went into the orchard and stopped there until I was gone; there was a man named Muldoon there and his wife with him; Muldoon had a dog, and when the butchers came first to O’Brien’s, as soon as Wilkes got out of the gig, the dog seized him and tore his thigh; Mrs. Muldoon mended Wilkes’ trowsers; Muldoon is a farmer, living on Mr. Palmer’s farm; we were in the bed room, and the girl came to the window and whispered to us.
William Wilkes — I am a butcher by trade, and know the prisoners at the bar; I have repeatedly been at their place; I think I was there a little before Christmas with a butcher named Vowel; I went at that time to buy some cattle and a horse; I was attacked by a dog who tore my trowsers; they were mended by a female who was there, but I do not know her name.
Cross-examined — I saw no person there except the family; I was in three rooms; I went into one room to shift my trowsers, but I can not say whether it was the girls’ bed-room; I saw nothing more than at other times; if there had been any one there, I think, from the intimacy I have with the family, I should have observed it from their looks or behaviour; the accident happened out of doors, and might be more readily observed from the bush than from the house; I went into the bed-room, and when I came out, I sat beside the person who mended my trowsers; the room into which I went, was connected with the sitting room, but the door of the other room into which I did not go, did not look into the sitting room; I am positive that there was no person in the bed room, and do not think any person could have seen me through the key-hole; I went to a neighbour of O’Brien’s after I had been there about two hours, which might also have been seen from the bush; I did not see the girls go out, nor did any whispering occur; I know the whole of the family; the girls I think, are under the control of Mr. O’Brien; I can not swear that Mr. O’Brien knocks under to Mrs. O’Brien; I should think he wore the breeches; the young men also are under his control.
By Mr. Moore — There are five rooms I think in the house; there are five doors which look into the front room, counting the back and front doors.
By a Juror — I was not in all the rooms; there is the front door, back door, kitchen door, bed room door, and another door, all looking into the sitting room; I went to a neighbour’s house that night and O’Brien went with me.
By Dr, Wardell — The orchard was close to the hut, and two bushrangers would be likely to plant themselves there on the look-out for me when I left the house; bushrangers are generally FOND of butchers, as they know they generally carry a little money with them, they might have been looking out for us.
Sydney Monitor (NSW : 1828 – 1838), Wednesday 22 June 1831, page 3
This was the case for the Prosecution.
FOR THE DEFENCE.
Mary Muldoon — I am a married woman, and my husband lives at Mr. Palmer’s estate of Hambledon Farm at Vinegar Hill; I know where Michael O’Brien lives, and remember mending a pair of trowsers that had been torn by a dog; I know that all the doors were open, but I do not know into what bed-room I went, but there could not have been any persons there without my knowing it.
James Muldoon — I recollect being at Michael O’ Briens on the day when Wilks was torn by a dog; I was there about 11 o’clock in the morning, and stopped there until I went home in the evening; I saw nothing extraordinary about the house, and I do not think it possible for any person to have been there without my knowing it; my wife mended the trowsers of Wilks.
(Mr. Williams here requested the indictment might be again read over, which was done.)
His Honor after reading over his notes of the evidence, left the case entirely with the Jury. At 7 o’clock, they returned, when His Honor, previously to their returning the verdict, acquainted them, that he had, during their retirement, found the law authority for which he had been looking, and that he would read over to them the law with respect to the evidence of approvers being received. His Honor then informed the Jury, that in cases where it was found necessary to receive the evidence of an accomplice, it was not necessary that all the parts of his testimony should be corroborated by unimpeachable testimony from other witnesses. It was held to be sufficient, that some part of his testimony should be corroborated, and the rest received upon the principle, that he had testified truth in some points; and it was not to be supposed he would deviate from it in others. It was however a matter of consideration for the Jury whether they would credit the approver’s testimony or not. The Jury again retired for about a quarter of an hour, and returned a verdict of Guilty against all the Prisoners, except Michael Cantwell; who was acquitted, and discharged by proclamation.
The Prisoners were remanded for sentence.