Spotlight: Trial of Sam Poo for Wilful Murder (13/10/1865)

Sydney Morning Herald (NSW : 1842 – 1954), Friday 13 October 1865, page 5



Sam Poo was charged with the wilful murder of constable John Ward, on the 3rd February, 1865, at Talbragar, to which he pleaded not guilty.

Mr. Innes, at the request of his Honor, defended the prisoner.

The Government interpreter Sing Shigh translated the evidence to the prisoner.

Mr. Butler having opened the case.

John Clough was called, and deposed: I am in the employ of Mr. Plunkett, at Talbragar; I remember the day that constable Ward was shot; I saw the prisoner in that neighbourhood the day after Ward was shot; I was coming through the scrub, and I saw him covering me with a gun; he asked me where I was going, and on my telling him that I was going to Mr. Plunkett’s, he said, “Go on, or I will give you one too,” Pointing to the gun and a pistol that was lying near him on a log. The gun shown me (one that had been cut down in the barrel) is the gun he had; it had a piece of leather near the nipple like that now on the gun; I did not notice the pistol-could not swear it was a pistol; the prisoner was dressed in a serge shirt and corduroy trousers like those worn by the prisoner now; he had a hat like the prisoner’s.

By Mr. Innes: Never saw the prisoner before that; my brother was with me when he stopped me, but he stood some way off; I am positive the prisoner is the man; he did not offer to molest us; he had a swag with him, but we had nothing with us; I asked him where he was going and whether he was lost, and told him I would soon fetch somebody to shift him out of that; it was a piece of rag the prisoner had over the nipple of the gun; it did not occur to me that the prisoner might think we were going to stick him up; I could see his face plainly, and I did not think he was an old man; he was rather stouter than he is now.

Elizabeth Golding deposed: I live with my husband near Mr. Plunkett’s; on the 30th January, I saw the prisoner at my place; he came and spoke to my little girl; it was in the forenoon, and he went away; soon after he retuned; I asked him what he came back for, when he said, “If I cannot have my will of the girl, I will of you.”; he had a gun with him like that shown me; it had a precisely similar piece of leather round the barrel; I ran off to get assistance; the prisoner is the man.

By Mr. Innes: The prisoner was dressed then as he is now. I never saw him before. I am certain he is the man. My husband came back with me and the prisoner was gone.

James Francis Plunkett deposed: I live at Talbragar and remember constable Ward being shot. I found Ward lying in the bush wounded. I remember seeing the prisoner the night before Ward was shot. I remember seeing in one of the shepherds’ huts some things strewed about in confusion. There was a mess as if a flour bag had been emptied, and on the floor was a piece of a leather legging which had been cut. The leather round the gun is similar to that of the leggings. I found the things disturbed in the hut three or four days after Ward was shot. I found Ward wounded and took him to my house, where he died at four o’clock in the afternoon. He said he knew he was dying, and asked repeatedly “What is to become of my wife and children?” He knew he was dying and I took down a statement in writing. Afterwards he made other statements which I did not put down. This statement (produced) is the one I wrote.

By Mr. Innes: Constable Ward knew he was dying. He asked us to pray for him. The prayers we offered up were those of the Church of England for the sick and dying. I read the whole service. I sent for a doctor, who was forty-five miles away. I do not know whether he requested me to do so; probably he did so. The doctor came and remained till after Ward was dead. His family were, at his request, also sent for, but they did not arrive till he was buried. I read a portion of the service, and my wife read the rest.

Mr. Innes submitted to his Honor whether the declaration of the deceased could be admitted, as it had been ruled that where, after a declaration had been made, some hope of recovery had been expressed by a person who afterwards died, such a declaration could not be received. Mr. Plunkett had said that probably constable Ward expressed a wish for a doctor to be sent for, and this, he contended, was sufficient lo show that the deceased entertained hopes of recovery. The learned counsel concluded by quoting authorities in support of his argument.

His Honor said there was no positive evidence that Ward had made any request for a doctor. The witness could not remember, but he positively stated that Ward was firm in his conviction that he should die. The declaration, therefore, must be admitted.

Mr. Innis requested that the point might be reserved.

Mr. Butler then handed in the dying declaration of Ward, which was read as follows:— “I, John Ward, senior constable, stationed at Coonabarabran, do hereby solemnly declare, believing myself dangerously ill, and at the point of death, that on the 3rd day of February, 1865, I met two men on the Mudgee side of Barney’s Reef, who told me that a Chinaman was about sticking up people. When I got on the Talbragar side of Barney’s Reef, I sighted a Chinaman, and when he saw me he left the road and went into the bush. I chased and overtook him and told him that I was a policeman, and ordered him to put down his gun. He ran at me, and said, ‘You, policeman, me fire.’ When he presented his gun, I got off my horse, and took out my revolver. He followed me round the horse, fired at, and wounded me. I fired one shot at him, and then fell. I fired two more when I was on the ground. He ran away in the bush, loading his gun. To the best of my belief, the Chinaman was a short little cranky old man; he had a gun and a pistol.”

Examination resumed: After I had written the statement just rend, the deceased described the dress of the Chinaman who shot him. He said it would be of no use, for the Chinaman would change his clothes. He described the man’s dress, saying he wore a blue shirt and a strangely made cap. He said the man who shot him appeared to be a cranky, little, short old man.

Alfred Smith deposed: I was driving some sheep, on the evening of the 3rd February, at Talbragar, when I heard the report of firearms. A young man was with me, and on turning round I saw a man walking through the bush. He was dressed in a blue serge shirt and darkish trousers. His appearance corresponded with the prisoner’s. Afterwards I heard that constable Ward had been shot.

By Mr. Innes: I was near enough to see whether the man who was running away was an European or a Chinaman; I was 250 or 300 yards from him.

Thomas Matthew Morris deposed to being with the last witness, and seeing a man pass him in the bush riding, a few minutes before he heard shots fired; after the firing he saw a man coming from the same direction carrying something in his hand, which he thought was a gun ; in appearance and dress he resembled the prisoner.

Alfred Smith recalled: When I saw the man who passed after the shots were fired, he had something in his hand, which I believed was a gun.

Dr. William King deposed: I attended constable Ward, and found one wound in the pelvis, which was evidently caused by a bullet; there were other small wounds; I saw the deceased before his death; his case was a hopeless one.

Constable Burns deposed: I went out with two constables and a black tracker to scour the country, after it was ascertained that constable Ward was shot; we returned in a few days unsuccessful, and getting fresh information we started again; we met with the prisoner in the bush, our attention being drawn to him hy his firing off a gun; he ran into the scrub which was very thick, and we had to dismount to follow him; we fired after him and eventually brought him to bay and arrested him; the prisoner was dressed then as Chinamen usually dress; he had two jumpers on (produced) and the other clothes he now wears; he had the gun now shown me which has been cut down; it was loaded with a bullet and slugs which I produce; he also had the pistol now in court.

By Mr. Innes: The prisoner was shot and gave a scream, and was afterwards knocked senseless with a blow on the head; he was injured seriously, and was not expected to recover.

Dr. King recalled: The wounds I saw on Ward’s body might have been produced by a bullet and slugs similar to the charge shown me.

Mr. Innes asked his Honor whether there was anything to go to the jury on the charge of murder.

His Honor considered that there was ample evidence to sustain an indictment for murder.

Mr. Innes then made a telling speech in the prisoner’s behalf.

His Honor having gone through the evidence, pointed out its various features; the jury retired, and after a short interval, returned with a verdict of guilty. Sentence deferred.

Spotlight: The Melbourne Private Escort Robbery (03/09/1853)

Bell’s Life in Sydney and Sporting Reviewer (NSW : 1845 – 1860), Saturday 3 September 1853, page 1


From our Melbourne exchanges we extract the following, having reference to the progress of the investigation pending before thc authorities:—

SUICIDE OF FRANCIS, THE APPROVER.— Intelligence reached Melbourne, yesterday of the self-destruction of John Francis, the approver in the Escort robbery. The affair occurred yesterday morning at the Rocky Water Holes, a few miles from Melbourne, and from what can be as yet ascertained, it appears that Francis and the other persons in custody on their way to Melbourne, stopped at the Water Holes on Monday night. About eleven o’clock yesterday morning, Francis, by some means not yet ascertained, picked up a razor at the lock-up, which he appears to have secreted on his person, and having occasion to visit the water-closet, got in behind it, and there cut his throat. Two constables were supposed to have charge of him at the time, and the first intimation they had of the occurrence (though they were within a few paces of him at the time), was suddenly hearing a gurgling in the throat, and on running to ascertain what was the matter, found Francis with his throat cut almost from ear to ear. He walked about 12 paces and then dropped dead. How his death will affect the prosecutions for the Crown, is more than we are at present in a position to say. — Melbourne Herald, August 25th.

EXAMINATION OF THE PRISONERS. — Yesterday at the District Police Court, the following prisoners charged with being concerned in the robbery of the Private Escort Company, were brought up handcuffed for examination:— George Elston, Robert Harding, Edward McEvoy, George Wilson, George Melville, and William Atkyns. Agnes Atkyns, his wife, was also accused of being an accessary after the fact. The female prisoner was greatly excited, and was accommodated with a seat under the Bench. She frequently interrupted the proceedings by her sobs, when the evidence was such as to affect her husband.

Mr. Read appeared for the prisoners, and applied to have their handcuffs removed, which was immediately done. He then stated that he had been refused all intercourse with his clients, and prayed for permission to put himself in communication with them, which was granted.

John Francis, brother to the suicide-approver, was admitted as evidence on the part of the Crown, and after a long examination, the Bench remanded the three prisoners Harding, McEvoy, and Elston, for one week, but would allow them bail, themselves in £200, and two sureties in £100 each. The rest of the prisoners the Bench did not feel the least hesitation in committing to take their trial in a higher Court.

When the prisoners were about to be removed, the wretched woman made an attempt to reach her husband, but was prevented by the constables. She pleaded hard to be allowed to speak to him for one moment, saying she would then go where they liked, but the indulgence was not allowed her.

THE PRIVATE ESCORT ROBBERY. — There is something extraordinary connected with this affair, as it now turns out that all the information given by the suicide approver (George Francis), proves to be pure fabrication, and the four men arrested by the detective police at the diggings are supposed to be quite innocent of the crime imputed to them. We may, however, state that Francis’s brother (John) has now, in his turn, become informer, and by means of his evidence it is supposed five men will be convicted. Four of them are now in custody in Melbourne, and the fifth, named Sam Grey, is reported to have been arrested in Portland where he was committed for another offence, but confessed his participation in the Escort robbery. It is now ascertained that the gang originally consisted of only six persons, and should such be the case, the five men above mentioned and the informer will be found to make the whole. — Melbourne Herald, August 26th.

THE PRIVATE ESCORT. — We regret to learn that this enterprising little company is about to be wound up, in consequence of a want of a sufficient support from the public. By the way, the £6,000 in hard cash found upon the men in custody for robbing the Escort, will, it is supposed, in the event of their conviction, (of which, we are glad to hear, there can be little or no doubt,) be handed over to the Company, who would rateably divide it among the parties who had sent their gold down on the occasion of this robbery. — Ibid.

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.

Spotlight: The Escort Robbery – Examination of the Prisoners (26/08/1853)

Argus (Melbourne, Vic. : 1848 – 1957), Friday 26 August 1853, page 5



Yesterday, at the District Police Court, the following prisoners charged with being concerned in the robbery of the Private Escort Company, were brought up handcuffed for examination:— George Elston, Robert Harding, Edward McEvoy, George Wilson, George Melville, and William Atkyns. Agnes Atkyns, his wife, was also accused of being an accessary after the fact. The female prisoner was greatly excited, and was accommodated with a seat under the Bench. She frequently interrupted the proceedings by her sobs, when the evidence was such as to affect her husband.

Mr. Read appeared for the prisoners, and applied to have their handcuffs removed, which was immediately done. He then stated that he had been refused all intercourse with his clients, and prayed for permission to put himself in communication with them, which was granted.

The first witness called was Chief Detective Ashley, who, being sworn, deposed as follows:— From information received, I proceeded on the 11th instant with Sergeant Simcock and Detective Murray on board the barque Collooney, then lying in Hobson’s Bay, and having made search, found a leather trunk in one of the cabins, containing two parcels of sovereigns, one a small bag containing £403 10s., the other a reticule, containing £720; the trunk also contained several papers and receipts bearing the name of George Melville. I took possession of the whole. On the day following I went with the same officers and George Francis to the house of John Harris, hay and corn dealer in Little Bourke Street, where I saw the prisoner William Atkyns, who was immediately pointed out by Francis as one of the robbers of the escort. I arrested him, and on his person found £3 10s in gold, and a draft on the Sydney branch of the Bank of Australasia in favor of Atkyns for £100. He said nothing. In an adjoining room I found the female prisoner, who said she was the wife of Atkyns. On my telling her I should arrest her on suspicion, and asking if she had any money, she said she had, and took from her pocket a parcel containing £81 10s in gold. She said she had no more money, but having left her alone with Francis for a few minutes, Francis came out to me and told me to go in and search a plaid dress, which was hanging in the room. On my taking hold of it the female prisoner snatched it from me, saying, that there was nothing in it. On searching it I found in the lining a draft on the Sydney Branch of the Bank of New South Wales, in favor of Agnes McLachlan for £700. On Atkyns I found also two cabin passage receipts for £24 for Mr. and Mrs. Atkyns, per Hellespont, for Sydney. I conveyed both prisoners to the watchhouse. On the same evening, at about eight o’clock, I went with the same officers and George Francis to the North Star Hotel, and arrested George Melville, telling him he was suspected of being concerned in the escort robbery. I found on him £100 10s. in gold, silver, and notes; also a silver watch and guard, a six-barrel revolver, and an American gold dollar. I conveyed him to the watchhouse.

Mr. Read inquired of the witness whether it was from Francis he had received the information, but the question was disallowed.

Cross-examined by Mr. Read:— I arrested three men on the information of Francis, after taking Atkyns; two are now before the Court, and the other was discharged yesterday. Melville’s wife had property before she was married to Melville. They kept a fruit and oyster shop in Little Bourke-street opposite to my late residence. They have been married about twelve months.

The second witness was Hindle Thomson, who deposed as follows:— I am a constable in the detective force. On the 11th inst. I went on board the ship Madagascar, in Hobson’s Bay, where I arrested the prisoner, George Wilson, on suspicion of being one of the escort robbers. I took him into the captain’s cabin, and, on searching him, found £302 in gold on his person. I then took him into his own cabin, where he took hold of a pair of trousers in which I found 88 sovereigns. I brought him to Melbourne and confined him.

Samuel Beauchamp Davis was then called and gave evidence as follows:— I was a trooper in the Melbourne Private Escort Company’s service. On the 20th of July last, I left the McIvor diggings at about nine o’clock in the morning, in company with one superintendent, one sergeant, two troopers, and a driver, six in all. We were escorting gold and specie to Kyneton. When we had got within about four miles of the Mia Mia Inn, I saw Seargent Duins who was in advance motion with his hand towards the right side of the road, and immmediately we received a volley of shot and bullets from a mia-mia on the side of the road. I drew my pistol and fired at a man, who fired at me at the same time. The shot took effect in my neck, jaw, and nose. I fell from my horse. When lying on the ground, I saw two men, one at each wheel of our cart, from which they drew out the boxes containing the gold and specie. Other men came and carried away the boxes into the bush. On looking round I saw Fookes the driver and trooper Prosswetter lying on the ground. I asked them whether they were hurt. Fookes said he was a dead man. Prosswetter asked me to get a knife to cut his trousers off, as he was shot through the thigh. Not having one, I looked round and saw a blue coat lying on the ground, not belonging to our party, in the pocket of which I found the knife now produced. Before cutting the trousers, I saw Morton, the other trooper, lying on the ground, with his horse dead, lying upon him; he begged me to get the horse off him. I tried, but could not. Reflecting what was to be done, I walked a little way along the road and met a man going towards McIvor. I asked him to assist us, which he did by helping the wounded men into the cart. I mounted one horse myself, leading two others, and proceeded towards McIvor. After going about a quarter of a mile, I met the Superintendent, Mr. Warner, coming towards the scene of the attack, in company with others. He took my horse, and gave it to one of those who were with him. I then walked on as far as Patterson’s station, where a horse was given to me, and I went to the Government camp at McIvor. On the 24th instant I went to the Melbourne Gaol, where a number of men (about fifteen) were shown to me, and I recognised two, whom I believe to have been among the robbers. I see one now in court; that is the man (pointing to Melville). I do not see the other.

Cross examined by Mr. Read:— I can’t say exactly how many men there were in the party who attacked us. I should think about nine or ten.

Captain McMahon here enquired whether the Bench would wish to hear what had passed between himself and George Francis before his death, as it had been taken down in writing.

Mr. Read objected, but after some discussion it was decided to hear the statement of Captain McMahon, who deposed as follows:— I am Chief Inspector of Police. On or about the 12th of August I sent for the younger Francis, then a prisoner in the Swanston-Street watchhouse, in order to have some private conversation with him. I told him that, as he might see by the notice posted on the gates, any one of the party concerned in the outrage would receive a free pardon, a passage out of the colony, and [£500], if he would consent to become an approver. After considerable hesitation, he admitted —

Mr. Read here interrupted objecting that as the prisoners were not present during the conversation, the evidence could not be allowed: such testimony was only admissible in extremis.

The Bench again overruled the objection.

The witness continued:— Francis admitted that he was one of the party that attacked the private escort. He also gave me the names of his companions on that occasion, and assisted in their apprehension. The names were John Francis, George Francis —

Mr. Read again interposed, and said that whether the Bench agreed with him or not, he was bound to object to the reception of such evidence. The witness was, however, desired to go on, and proceeded as follows:—

Joe Gray, alias Nutty, to be found at Tommy Condon’s, in Little Bourke street; one named Billy, boarding at the house of the brother of the proprietor of the Bush Inn; Bob Harding, at McEvoy’s tent, opposite the commissioner’s, at McIvor ; Neil McEvoy, opposite the Private Escort Company, at McIvor; George Elston, a fighting man, with one tooth out, keeper of a grog shop at the McIvor; George Melville, Wilson, and two others, names unknown; one very much pock-marked, dark brown hair, 5 feet 7 or 8 inches, about 30 years of age; the other man light brown hair, 5 feet 6 inches, about 27 years of age, goes by the name of Little Billy, living with a woman called Kitty, down the road on the left hand side, near the Bald Hill, at McIvor. I then handed Francis over to the chief detective officer, and desired him to take him about with him to assist in the apprehension of the remainder. I also promised him that I would not use his evidence against his brother, but would exert myself to have them both included in the pardon.

At the close of Captain McMahon’s evidence there was a pause in the proceedings for the production of John Francis, the approver, and brother of George Francis, the first approver, who lately committed suicide after a vain attempt to escape. This witness looked exceedingly pale on coming into Court, but he gave his evidence in a clear manner, though not showing a disposition to say anything more than was necessary to the questions put to him by Captain McMahon who elicited the following evidence:—

I was sent as a prisoner of the Crown to Van Diemen’s land for ten years: the time will expire next December. On the 20th July last I left McIvor in company with George Francis, George Wilson, George Melville, William Atkyns, and Joseph Gray. The prisoners Melville, Atkyns, and Wilson, now in the dock, are three of the men. We went through the bush towards the Mia Mia Inn, and stopped on the side of the road at a few miles distance from the inn. We heard the escort coming up at about ten or eleven o’clock, from the direction of McIvor towards Kyneton. We arranged a few branches of trees to put two men behind: the rest of us went about thirty yards higher up the road, and hid behind some trees. I heard some person in charge of the escort cry Halt! and saw some of the troopers firing at the two men behind the branches. We rushed to their assistance, and challenged the troop to stand; they refused, and fired on us, when we fired and a general fight com-menced. I saw four of the troop wounded, and found that two had escaped. Two of us (myself and Wilson) followed them, and told them to surrender; they shot at us and galloped away. Wilson and I went down the road and picked up all the firearms we could see, and then followed Francis, Melville, Atkyns, and Gray into the bush. I did not see the gold taken out of the cart. We went about two hundred yards into the bush, and took the gold out of the boxes. We went about seven miles through the bush that day, and the day after continued in the same direction, keeping off the road, and stopped that night on a riverside, I believe on Mollison’s run. Next morning we divided the gold, and started again, going in the same direction, and arrived near Kilmore, stopping in the bush. On Sunday we started all together for Melbourne, and on coming near the Rocky Water Holes we separated, Francis and Gray accompanying me to Melbourne, which we reached that night. We went to my house in Collingwood Flat, where I found Wilson and Atkyns, having previously arranged to meet them there. They remained all night. On the Tuesday following, Atkyns left for the diggings, Gray and Wilson staying with me. I saw Melville in town two or three days before I was apprehended; he told me he was going to the Mauritius. I saw Atkyns in town again about a week after he had left for the diggings; he said he had been to McIvor, and was going back again. The last time I saw Gray, he said he was going to Adelaide. Wilson was going to England with me and George Francis: we took our passages in the Madagascar. My wife and the wife of George Francis were going with us: our things were all on board. I gave my share of the gold to George Francis, who put it in his box. While on board the ship I was apprehended for stealing a pistol, and was discharged. I was arrested again on a charge of robbing the escort. I last saw George Francis in this room; have had no communication with him since. I sent a message to Capt McMahon from the gaol. —

Mr. Read again interposed, and was again overruled. He requested the objection to be written on the margin of the deposition. The same thing occurred several times afterwards.

Examination continued: I sent to Capt. McMahon to say I would tell all I knew. I did do so. The prisoners were not present. My confession was voluntary. No inducement was held out by Capt. McMahon. After my confession he told me he would send me a free man out of the colony with my wife. Our party had determined before the attack not to take human life if it could be avoided. We expected to get the gold without firing. I did not see any of our party shoot at a fallen man. The firing commenced on the part of the escort.

Samuel Beauchamp Davis, recalled. —I now see the second man I recognised in the gaol. That is he (pointing to Francis). Our troop did not fire until we had received a volley from the attacking party. Three of our men were lying in the road when the first shot from us was fired, I believe by myself.

John Francis, recalled. — I believe the firing of the escort troop was caused by seeing two of our party behind the branches. Those two men were put there to let the troop pass, and then close in and prevent their retreat. They made no attempt to attack, nor did they raise their guns.

Alexander Eason, being sworn, deposed as follows:— I am a constable in the Detective force. On Wednesday, 10th August, I accompanied detective Thomson on board the ship Madagascar, lying in Hobson’s Bay, to apprehend two prisoners named Francis on warrant, charged with stealing a pistol. I arrested John Francis. George Francis was not there. Coming from the ship to the beach, John Francis requested me to allow him to steer the boat. I did so. He brought us alongside the barque Collooney, his wife being in the boat with us. When we were alongside, the prisoner Melville came from the vessel into the boat and sat down. He offered to come and bail Francis out, but Francis objected, and told him to stay on board, and take care of his (Francis’s) win. I brought Francis ashore, and confined him. He was tried and discharged. He was again apprehended on the charge of robbing the Private Escort.

William Symons was then called, and deposed. — I am a cadet in the mounted police, stationed at Heathcote, near McIvor. On or about the 19th instant, I arrested George Francis, on Mr. Jeffrey’s station, on the Campaspie. I saw him last at the Rocky Water Holes — dead.

This closed the case for the Crown, and Mr. Read, having declined to ask any questions, applied for the discharge of the four prisoners Harding, McEvoy, Elston, and Agnes, saying that there was no evidence against them. He suspected that the draft found in the plaid dress must have been put there by George Francis himself, and that its presence there could not possibly be accounted for on any other supposition; but the Bench were of a different opinion, and could not think of listening to the application, as far as the female prisoner was concerned. They seemed disposed to discharge the other three, when Capt. McMahon stated that he had just heard a report that the other man mentioned by John Francis, namely, Joseph Gray, had been taken near Portland, and had confirmed his crime. He said that he did not attach much weight to the rumor, but that it was just possible such an apprehension might be the means of implicating the three prisoners. He would not apply for a further remand, but merely threw out the suggestion. The Bench, under the circumstances, remanded the three prisoners Harding, McEvoy, and Elston, for one week, but would allow bail, themselves in £300, and two sureties in £100 each. The rest of the prisoners the Bench did not feel the least hesitation in committing to take their trial in a higher Court.

When the prisoners were about to be removed, the wretched woman made an attempt to reach her husband, but was prevented by the constables. She pleaded hard to be allowed to speak to him for one moment, saying she would then go where they liked, but the indulgence was not allowed her.

Spotlight: Shooting at Wendlan (4 May 1865)

Ovens and Murray Advertiser (Beechworth, Vic. : 1855 – 1918), Thursday 4 May 1865, page 2


Wednesday, May 3rd.

(Before Captain Carey, P.M)

Shooting at Wendlan.—– Thomas Maslen, who appeared, on remand charged with threatening to avenge the death of Morgan, by shooting Wendlan, was again brought before the Court. On the previous hearing of the case, the only evidence taken, was that of Mounted-Constable Nicolson, who de posed to arresting the prisoner at the Union Hotel, Wahgunyah, on the above charge. In his swag were found a double-barrelled gun, a rifle, two flasks filled with powder, two empty powder flasks, four gun locks, a quantity of balls, a box of percussion caps,and a small vial of strychnine.

To-day, Sergeant Hayes stated that the prisoner had been identified as being an associate of Morgans, and prayed for a further remand of seven days, which was granted.

Spotlight: Smith and Brady on Trial (22 October 1872)

Ovens and Murray Advertiser (Beechworth, Vic. : 1855 – 1918), Tuesday 22 October 1872, page 3


Monday, 21st October.

(Before Messrs. G. R. Berry, J. Turner, G. Graham, and Dr. Fox, J.P.’s.)

Robbery under Arms and Attempted Murder. — James Smith, Thomas Brady and William Happenstein, three men in the garb of bushmen, were charged with robbery under arms, and attempted murder at Wooragee. Mr Superintendent Barclay said that the defendants had been to a certain extent identified by some of the persons who were present when the robberies took place; as, however, they had only been arrested on Saturday afternoon, he would ask for a remand, in order that proper enquiries might be made. Remanded till Monday next.

Brisbane Courier (Qld. : 1864 – 1933), Wednesday 27 November 1872, page 3


(Abridged from the Melbourne Age.)

At the Beechworth Police Court, on 31st October, James Smith, William Heppannstein, and Thomas Brady were charged with the murder of John Watt, of Wooragee. Thirteen witnesses were examined. The following is the evidence chiefly bearing on the case:—

Catherine Mitchell, wife of Peter Dominick Mitchell, living at Wooragee, deposed: I was at home on the 15th instant; was alone; about half-past 7 in the evening, heard a knock at the door; opened it and saw two men, one of them came into the house, the other remained outside; the one that came inside said, “Where is your money?” I said “I have none;” he said nothing further, but took a gun down; I only saw one of the men; I should take the man standing next the constable (Smith) to be the man who was in my house and took the gun; I saw the two men taking my husband away from the cowyard; about five minutes afterwards the men came back with my husband, and came into the house, one of them — the tall one — came into the front room, the other stayed out in the back room; they asked my husband for ammunition; he gave them some powder and shot; the men remained for about a quarter of an hour whilst we were looking for caps; did not find any caps; they then left; heard the report of a gun about 9 o’clock, about an hour after the men had left; had heard the report of my husband’s gun many times; it had a peculiar sound; when I heard the gun fired I did not recognise the report as being that of my husband’s gun; the gun was not loaded when they took it away.

Peter Dominick Mitchell, a gardener, residing at Wooragee, deposed: On Tuesday, 15th instant, about half past 7 o’clock in the evening, I was standing near a cow that was in the bail, when I saw two men come out of the house towards me; one of the men, whom I believe to be the prisoner Smith, said, “Come this way,” three times; they told me to go back and deliver the powder and shot I had; I walked in front of them back to the house; I gave the powder and shot to the tallest of the two; I took particular notice of the face of the tallest man; both men had something dark on their faces, with holes cut for their eyes; to the best of my belief I can recognise Smith, from his eyes, his build, full chest, and his voice; could not recognise the second man, who had a kind of dragging walk; when they left the house the tallest man said that if they catched me down the road they would shoot me; about an hour or an hour and a half afterwards I heard the report of firearms.

William Jarvis, a bullock-driver, residing at Wooragee, deposed: On Tuesday, 15th instant, I was in Gale’s store between 7 and 8 o’clock in the evening; Mrs. Gale was also in the store; there was no one else there; whilst there my attention was called by a knock at the door; when I opened the door there were two men with firearms, one at each side of the door; one had a single-barrelled gun, the other appeared to have a double-barrelled pistol; the man with the gun said, “Come outside here, you wretch, or I’ll blow your brains out;” I walked out on the verandah alongside of him; he asked me whether there was anybody else in the house; I told him there was only a woman there; he called out two or three times; he said that if he had to call her out again he would blow her brains out; I cried out, “Mrs. Gale, you had better come outside;” she came out, and stood alongside of me on the verandah; the man with the gun said to Mrs. Gale, “There’s £50 in that house; I want it, and I’ll have it; go in and get it, or I’ll shoot you;” she said there was no money in the house; after the man with the gun and Mrs. Gale had gone into the house, he called out to me to come in, and I went and stood inside the door, the man with the pistol taking up his place on the step of the door; I heard the man who carried the gun ask Mrs. Gale to go and get the fifty pounds; Mrs. Gale said she would give him anything she had in the shop, but that she had no money for him; he told her that if he had to ask for money again he would blow her brains out; I said to Mrs. Gale, “If you have got any money you had better give it to him;” she said she would, and took him to a little box behind the counter, she laid the box on a little bench behind the counter, and he took the money himself; the other man was outside the house all the time; the man with the gun then went towards the door, when he turned round and said to Mrs. Gale not to allow me to leave there that night, or he would blow her brains out; he said there were two more men down the road waiting; he told me not to go away from Gale’s that night, or also I might be shot; I told him that I would not go away; the men then went away; it would be from twenty minutes to half an hour from the time they came to the store until they went away; during most of the time I had a good opportunity of seeing the man who carried the gun; he had a kind of handkerchief over his face; it was very thin and very dirty; the color of the skin could be seen through it; there were two holes for the eyes, and a hole on the side of the cheek, through which skin appeared quite plain; Smith is the man; I am positive of it; the next time I saw him after that evening (15th instant) was in the police yard, Beechworth, on the following Monday; he was with a number of others; I picked him from amongst them, and had no hesitation in doing so; after I had picked him out I heard his voice; it was the same voice that I heard at Mr. Gale’s house; indentified the prisoner Smith in the yard by his whiskers and hair; I could see the whiskers and hair through the handkerchief when he was at Gale’s.

Margaret Gale corroborated the evidence of the previous witness, and further deposed: I recognise that man there; that is him standing in the corner (Smith); I am as positive about him as I am about my husband; I pointed him out as soon as I saw him from the expression of his face, his make, and his hand; also recognised his voice.

Henry Gale, storekeeper, Wooragee, deposed: On the evening of the 15th instant I was coming out of my bakehouse, about 250 yards from my store; on my way home I met two men, one of whom had a gun, and the other what I took to be a pistol or revolver; the men called out to me “Stop, hold on,” and presented their pieces at me, one in front and the other at the side; the place where I was stopped was about sixty yards from my store; I was about to pass on, when the man with the pistol said, “Stand or I’ll shoot you;” I stood and said, “Are you really in earnest; I thought you were only joking;” the man with the pistol said, “If I put a ball in your head that will not be a joke;” he then said, “Turn out that money;” I told him that I had no money; he insisted that I had, and I turned out my pockets to show that I had not; the man with the gun then stepped forward and searched me; having satisfied himself, he fell back again; The man with the pistol then said, “It’s no use, he has the money,” and then addressing himself to me, said, “Go in the bush; ” I said, “What is the use of taking me in the bush, are you not satisfied?” he said that they had been told I had £50; the man with the pistol then said, “Go to your store, and don’t come out to-night; there are men up the road and down the road; ” I do not think I could recognise the men again; I had an idea that I had heard the voice before; I have an idea that Thomas Brady was the man who stood in front of me with the pistol; Brady I have seen several times, and he has been at my store, and I firmly believe that the voice I heard when I was stuck up was that of Brady; not only the voice, but I think there is a resemblance in the stature of the man.

John Alexander Kennedy, poundkeeper, Albury, deposed: Was at the Wooragee Hotel on Tuesday, 15th instant, about 9 o’clock in the evening; I was in the kitchen; there were present Hugh Pierce, Thomas Fraser, and the late John Watt; Mrs. Watt was going in and out of the kitchen; when Mrs. Watt was outside heard her call out, “John, there’s a knock at the door, will you open it?” Mr. Watt got up and went to the door; between half a minute and a minute afterwards I heard the report of firearms; directly after the report I felt as if I had been burned on the arm, and a numb sensation followed; when Mr. Watt came into the kitchen he said, “I am shot”; there was blood running down the front and left side of his coat; he sat down on a form, and immediately afterwards got up, and fell over on the floor; I picked him up, and put him in a sitting position against the wall.

Ellen Watt, wife of the late John Watt, of the Wooragee Hotel, deposed: On the evening of Tuesday, 15th instant, saw two men passing the gate, along the main road; had them in sight from one to two minutes; about one minute after they had passed, I called out to my husband there was someone knocking; heard him leave the kitchen and go along the passage to the front; about a minute afterwards I heard the report of a gun; when I got into the kitchen I found that my husband had been wounded; my husband told me that he was mortally wounded; Dr. Walsh attended him shortly after; he lived till the 25th instant; my husband described the men to me whom he saw at the door; he told me that he was shot by two men; one was a fair tall man with high cheek bones; he said that he had very little hair round the chin, and that it was of a lightish color; the other he said was shorter, and had a sandy complexion; my husband said that one of them said to him, “Come out, you wretch, or I’ll blow your brains out;” I believe that Smith and Brady would answer the description of the men as described by my husband; Smith was about the same size as the man who passed the gate first, and Brady appeared like the second one.

Mr. Superintendent Barclay put in the declaration made by Mr. Watt, before Mr. J. Turner, J.P., believing himself to be dying, as follows:—

“Between 7 and 8 o’clock two men came to my place. They knocked at the front door. I went outside and opened the door. The man with the gun said, ‘Stand out here or I will blow out your brains.’ There was another man with him. I then ran through the passage to the kitchen, and received a shot in the left side. I got to the kitchen, when I dropped down. I don’t think they followed me. The one that fired was a medium sized man, ill-looking, and thin. He had a cap on. I don’t think he had very much whiskers, which were dark. I believe the smallest man fired. He spoke with a gruff voice. He was a youngish man, I think.”

The Rev. W. C. Howard, incumbent of Christ Church, Beechworth, deposed: On the 23rd ultimo saw the deceased, Mr. Watt, at the Wooragee Hotel; remember the prisoners Smith, Heppannstein, and Brady being taken to Wooragee; was in the room with Mr. Watt when they were brought in separately to see Mr. Watt; he was at that time in an extremely feeble condition, hardly able to speak; Brady was first placed before him; Mr. Watt said he thought that was not the man who fired the gun; Brady was then taken out; Heppannstein was placed before Mr. Watt, who said, “That is not the man at all; he is much taller than the man who fired the gun;” Heppannstein was then taken out; Smith was then brought in; Mr. Watt was then becoming more feeble, and I could not hear exactly at the time, whilst Smith was in the room, the exact words which he used; afterwards Mr. Watt kept speaking partially to himself; I stooped my head down to the pillow, and asked him what he was saying, when he replied in a sufficiently strong voice for me then to hear him, “That is very much like the man who fired the shot; ” when Smith was in the room Mr. Watt made a movement with his hand, which I could not interpret.

George Graham, merchant, residing at Wooragee, deposed: On the 23rd instant I was at the Wooragee Hotel; was standing alongside Mr. Watt’s bed when the prisoners Heppannstein and Smith were brought into the room; as soon as Heppannstein was brought in Mr. Watt, who was in a very low state, shook his head and said, “No.” When Smith was brought in I lifted up a portion of the curtain; Mr. Watt partially turned his head, looked at Smith, and pointed with his hand and said, “That’s the man;” there was a brief pause, and I heard something like “me” after. There might have been another word between, but did not hear it.

The prisoners were then charged with highway robbery under arms. Evidence at considerable length was taken, and the usual caution having been administered by the Bench, the prisoners, as in the former case, said they had nothing to say. All three — James Smith, William Heppannstein, and Thomas Brady — were then committed to take their trial at the next circuit court to be held in Beechworth for wilful murder; they were also committed to take their trial at the same court for robbery under arms.

Ovens and Murray Advertiser (Beechworth, Vic. : 1855 – 1918), Friday 18 April 1873, page 3


The following is the list of cases remaining for trial :—

James Smith and Thomas Brady, murder, Wooragee.

James Smith and Thomas Brady, robbery under arms, Wooragee.

David Stewart, breaking into and stealing from a dwelling, Beechworth.

John Mulhall, unmentionable crime, Benalla. James Quin, on remand from last Circuit Court, assault with intent to do grievous bodily harm.


Thomas Gidley, sheepstealing, Beechworth.

Ah Hen, wounding cattle, Beechworth (2 cases).

Cornelius Foote, perjury, Wangaratta.

Kilmore Free Press (Kilmore, Vic. : 1870 – 1954), Thursday 24 April 1873, page 4


(From the Ovens and Murray Advertiser, April 19th.

A crime that for a time seemed to be enshrouded in mystery has been sheeted home to the criminals. After a fair and impartial trial, James Smith and Thomas Brady have been found guilty of the murder of Mr. Watt, at Wooragee, and have been sentenced to expiate their crime on the scaffold. So far as we can judge, after hearing the evidence brought forward, the verdict returned by the jury is a righteous one. The testimony of Happenstein, an associate of the prisoners, and who was to some extent connected with them in the crime, supplied the one link that was wanting in the chain. Without the evidence of the approver, the case against Smith and Brady left no moral doubt. His testimony, corroborated as it was by the statements of other witnesses, cleared away whatever legal doubt there was as to the guilt of the prisoners. Mrs. Gale’s identification of Smith as one of the men who stuck up and robbed the postoffice and store at Wooragee was complete, that of the witness Jarvis was not less so. Both witnesses swore positively to his having been the man, who, armed with a gun, compelled Mrs. Gale to deliver up the money she had in the store, and who made use of threats as to blowing her brains out and that of the witness Jarvis, in the most approved bushranging fashion. The evidence of Mr. Mitchell and his wife, from whose house the gun was taken, was scarcely less conclusive. Both were positive in their own minds that Smith was the man, but they had that shadow of a doubt which prevented them swearing directly to his identity. So far as the outrages at Mitchell’s and Gale’s were concerned, the testimony of the independent witnesses sufficiently established the complicity of Smith, whilst Mr. Gale’s testimony proved the identity of Brady as one of the robbers. Morally, there was not the slightest doubt that the same men who visited Mitchell’s and Gale’s were those who called at the Wooragee Hotel, and finished a night of crime by shooting Mr. Watt; legally there might have been some difficulty in connecting them with the firing of the shot, had not Happenstein come forward and told what he knew of the matter. As a rule, we have a strong dislike to the evidence of approvers, but in Happenstein’s case there are several circumstances that lift the testimony out of the usual category. In the first place it was known from the outset that his share in the crime was no more than that of an accessary before the fact, and it was doubtful whether, if he had not turned approver, the crown could proceed against him on the capital charge. None of the witnesses — neither the Mitchells, the Gales, nor Jarvis — deposed to having seen him in conpany with Smith and Brady; in fact, it was evident, as he himself stated, that he had acted as waiting man to the party, taking charge of the horses and keeping guard while the others went on their marauding expedition. Under these circumstances, and considering that no promise was held out to Happenstein to furnish any statement, we consider that his evidence — more especially as it was corroborated in almost every important particular — was entitled to the credence it received. Looking back, we cannot help agreeing with the Crown Prosecutor in his statement that the manner in which the case was got up reflects the highest credit on the police; there is no doubt that both the officers and men engaged showed great sagacity and skill by the way in which they added link to link until they made the chain of evidence complete. It must be remembered that the crime which formed the subject of the trial at the Circuit Court yesterday was of no ordinary nature. Two men visit a lonely wayside public house, after dark knock at the door, and when they are answered they order the landlord to stand outside threatening in case of refusal to blow out his brains. He turns round to regain the shelter he has quitted, is fired at and mortally wounded; the murderers speed away in the darkness, and excepting a passing glance at their forms caught by the murdered man’s wife, they are not seen by anyone in the house. Unless for the traces the murderers left by their visit to Gale’s, in all human probability the Wooragee murder would have been added to the list of undiscovered crimes, of which there have been not a few in Victoria. Fortunately for the peace of mind and security of lonely dwellers in the bush, and perhaps also for those who may be inclined to enter on a criminal career, justice has been vindicated by the charge having been brought home to the guilty parties. Some complaints were made when those men were arrested as to the delay that must take place before they could be placed on their trial. But all things considered, we are of opinion that it is as well that the delay did take place. The excitement that was occasioned in the district by the shooting of an inoffensive and much respected resident in his own house, has had time to die out during the six months, that have elapsed since the murder took place. Whatever the character of those accused of the crime, they were entitled to a fair and impartial trial, and they have received it. Mr. C. A. Smyth, in conducting the case for the Crown, strained no point to secure a conviction, but, as is his wont, while doing justice to the side on which he was engaged, he treated the accused with every fairness. It is necessary that the law should be vindicated; at the same time it is lamentable to see two healthy strong young men sentenced to have their career cut short by an ignominious death. A little sin, says a high authority, is like the letting in of water. Smith commenced criminal career with the too common and much too-lightly esteemed offence of cattle stealing, and ended it as a murderer’s doom. His fate and that of his fellow convict ought to be a warning to others lest they trangress against the law. Once a criminal career is commenced it is hard to tell where it will end. In a country like this, where honest labour is well rewarded, crimes of every description are as unprofitable as they are wicked.

Spotlight: Bushrangers in court in Bathurst (13 April 1865)

Empire (Sydney, NSW : 1850 – 1875), Thursday 13 April 1865, page 2


MONDAY, APRIL 10, 1865.

(Before His Honor Judge Wise.)

Crown Prosecutor, E. Butler, Esq. Barristers, W. B. Dalley, J. L. Innes, and E. Lee, Esqrs. Attorneys,

Messrs. James and McIntosh.


James Mount alias Gordon alias the “Old Man,” and James Dunleavy were charged with, on the 7th day of July, 1861, assaulting and robbing William Brandon, and taking from him a quantity of letters, the property of himself and another.

Mr. Dalley applied for time to plead on behalf of Dunleavy, which was granted.

Gordon, after having objected to be arraigned by any other name, pleaded guilty. His Honor reserved sentence.

Another count charged Gordon with having, on the same day, in the Half-way House, robbed Ebenezer Davis of £3, and with, on the same day, at the same place, assaulting and robbing one George Asmus, to both of which he pleaded guilty. He also pleaded guilty to having robbed, with fire-arms, on the 13th June, 1864, one Charles David Clements of a quantity of fire-arms and £2 in money ; on the 19th August, in the same year of having stolen horses, &c, the property of William Faithful Gibson ; and on the 22nd June, at Canowindra, a quantity of wearing apparel and £3 in money, from Joshua Pierce.


Sam Poo was indicted with, on the 18th February, at Barney’s Reef, shooting at one Henry Hughes, to prevent his lawlful apprehension. The prisoner remained mute, and would not answer the charge.

Wilson Ramsay being sworn said that the prisoner since his arrest had not to his knowledge spoken, but he had been told that he could speak English well.

John Duff deposed he knew the prisoner. Had spoken to him in English, and he had replied to him. He can speak English as plain as witness can.

It was therefore decided that the jury should be empanelled to try whether he was mute by malice, or by the visitation of God. The jury being sworn, Mr. Butler said that the only thing they had to try was whether he was wilfully mute or only unhappily so. He thought he could prove by various witnesses that the former was the case, and that he had only become obstinate.

Tommy Hoy deposed that he had a conversation with the prisoner on the previous day in the coach, both in English and Chinese, and he understood him.

John Duff re-called, repeated his former evidence. He asked him in English where he was going to, and he said if himself and his brother did not go on he would soon make them. Asked him where he lived, and he said, pointing down a log, “there.” This was in English. Told him he would fetch somebody to shift him. He said, “You had better not.”

Senior-constable Webb deposed that the prisoner had been in his charge. He heard him ask for a drink of water whilst on the coach, and he also spoke at his examination before the Bench.

Mr. Sub-inspector Davidson had never heard him speak.

Mr. Chippendall said that after he came into gaol he would not speak at all. Was informed he had eaten the food given to him.

Edward Clark deposed he had seen the prisoner in Mudgee, but could get him to speak. Had heard others speak to him, but he would not answer. He refused to take his food for some fourteen days.

Constable Burns deposed to his having spoken in the lock-up at Sofala, and also in the coach.

The jury retired for half an hour, and brought in a verdict of dumbness by malice.

His Honor decided that this was equivalent to a plea of not guilty, and directed the trial to proceed.

Another jury was therefore empannelled.

Mr. Butler, in opening the case, said that the prisoner was charged with shooting at Henry Hughes with intent to kill him, and in a second count with shooting to resist his lawful apprehension. The prisoner was arrested on suspicion of having shot constable Ward, but the evidence was not at present sufficiently complete to go on with that case. The Chinaman had been told by the police what he was arrested for, and he then shot at them, being well armed both with a gun and pistol, and it was only when knocked on the head with the butt end of a rifle that he was arrested.

Miles Burns deposed he was a constable in the Western Police. Remembered hearing of the death of constable Ward, about the 5th or 6th of February. Went out with senior constable Webb and another to apprehend a Chinaman. Was stationed at Mudgee then. Received information on 17th March that the Chinaman was about the town and went in pursuit with three others. Saw prisoner about fifty miles from Mudgee. McMahon was with him, the other two having taken another direction. A shot was fired and they saw him retreating. Called on him to stop but he would not. Did not see him till after the shot was fired. He was about sixty yards distant. Heard the shots passing over their heads. Fired at him and missed him. Chased him through the bush and met the others. Other shots were fired. Saw Hughes’ hat after the prisoner was taken. When prisoner was taken he was on the ground, taking deliberate aim at witness, when he knocked him over the head and stunned him.

Told him five or six times to surrender, as they were police. Found on him a powder horn, a large pistol, and a fowling piece. The pistol was loaded and the gun discharged.

Senior-constable Webb deposed he was with Burns when they went in search of the prisoner. Saw Ward when he was dead. Was not present when the firing took place.

Henry Hughes, a half-caste, deposed he was lately in the employ of Mr. Blakeman, being brought up by him. Was with the police when the prisoner was taken. He fired at witness, and the shot went through the rim of his hat (produced). The hole was not in the hat when this occurred. The hat was knocked off his head at about six yards from the prisoner. The other time he was fired at he was about twenty-five yards away. Whilst taking aim the last time constable Todd shot him, and Burns knocked him on the head. There was only one hole made in the hat.

Constable Burns was re-called, and in reply to his Honor reiterated his former evidence.

His Honor, in charging the jury, said that as the prisoner had been adjudged guilty of wilfully holding his tongue, and as others had said he could speak, the only course left open was to show them the evidence and leave it to them to judge whether he was guilty upon the first or second count.

The jury, after retiring a few minutes, returned a verdict of wounding with intent to kill. The prisoner, who appeared to be very weak and emaciated, was remanded for sentence.

Spotlight: Trial of Gipsey Smith and Twigham, for the Murder of Serjeant McNally (1857)

Goulburn Herald and County of Argyle Advertiser (NSW : 1848 – 1859), Saturday 14 March 1857, page 3


AT the CASTLEMAIN CIRCUIT COURT, on the 26th February, William Twigham was placed at the bar, indicted for the murder of Serjeant McNally, at Mount Ararat, on the 16th October last.

Mr. McDonogh appeared for the prisoner.

The prisoner pleaded not guilty. The facts of this case have been already published. The deceased and another police constable were in the pursuit of a man named Turner alias Gipsy Smith, an escaped convict, and came up with him near Mount Ararat. Turner was a few yards from a tent, when the police apprehended him, and he called out for assistance. The prisoner came out from his tent, and fired a two-barrelled gun at the police, one of the bullets taking fatal effect upon McNally, and the other slightly wounding Moore, the second police constable. We subjoin the evidence given by Adams, the owner of the tent:—

William Adams deposed: I am a digger, and in October last resided at Mount Ararat; I was a free man; I remember Turner coming to my tent about the 16th October; my wife and three children were there with me when he came; shortly afterwards (about half an hour) two other men came; I see one—the prisoner; his companion, Turner, myself, and family dined together that day in my tent; Turner went out alone about half-past three or four o’clock, and returned first on horseback about four or half-past four o’clock; he then went into my tent; he had a small bundle and a small canister of powder; he laid these things on the table, and shortly afterwards Twigham came in, about a quarter of an hour after Turner; he brought a swag of red blankets, and laid them underneath the dresser’s legs, where he sat down, [a sketch of the tent and plan of interior were here produced]. Turner was there; I saw him take the small canister of powder over to him (Twigham,), and ask him if it was fine enough; that was about five o’clock, and afterwards I went out to cut some wood; when I returned about six o’clock, to have some tea, they were present, with my wife and children; and after tea, about half-past six, I went out to the wood again; two other men came, leading a horse, and then went into my tent; it was between light and dark; a man came to my tent a few minutes after, and said that Turner had better go, as the traps were laid on him; Turner said there was no b—y fear of the traps coming where he was, for if they did, he would show them the punishment they served out at Mount Ararat; Twigham then pulled out the blankets from underneath the dresser where he had placed them; he opened them and took out a bright double-barrelled gun in two halves; the gun produced is like it, but I cannot swear it is the same; he rigged it together, and Turner asked him if he wanted fresh caps; to which he replied, “No, it is all right,” and he laid it down by the corner of the dresser where he sat. [The plan of the tent was here handed round to the jury.] I then saw Turner go out of the tent, and come in again: in two or three minutes after, he went out a second time; I then went out to my mate’s tent, and saw Turner standing at the corner of my tent; I passed him a few yards, and then met Serjeant McNally and Constable Moore coming up to my tent. [Witness described the corner of the tent, according to the plan produced.] It was then dark; I did not know the constables then, although I had known them previously; I passed on a few yards, and then stopped; I heard them bid good evening to some one, and I heard Turner answer “Good evening.” I then heard a voice say,”Hollo! Turner, Gipsy, you are the man man we want,” and then a scuffle took place; I heard Turner call out, “You cowards, come out,” and ran up towards my tent; I saw Twigham coming out of the door with a double-barrelled piece in his hand; I was about six yards from the tent then, and the shafts of the cart were between me and him; though it was a dark night, there were two candles and a fire alight in the tent, I could see him by that means as plain as I see him now; he turned towards where the noise of scuffling was, then rose the gun to his breast and fired; I saw no one present but myself and Twigham at that time; I heard a voice cry out, “The Lord have mercy on my soul — I am shot.” I went away from where I was standing a few yards, and in about half a minute I heard another shot fired; prisoner then wore a yellow wide-awake hat and a drab coat; I did not notice the waistcoat; I noticed the coat because it was a first-rate made one, with pearl buttons I think; I did not see any one but Twigham when the shots were fired, and did not go into my tent again for half an hour or so; I heard a noise as if several were running away, and heard a voice call out “Police — help — murder;” I next saw Twigham placed under a verandah in Carisbrook lock-up, with blankets rigged up before him, and fourteen or fifteen others; I picked him out at once from amongst them; I saw McNally a few minutes after the shot was fired apparently dead on the ground, and my wife was holding a candle over him; I did not see Moore for a few minutes afterwards; he was covered with blood on both arms and cheek; I went for a doctor but could not find one; when I went back there was no one at the tent; I never saw McNally again or his body; I went up to the camp, and Moore arrested me: I was examined at the Police Court, and told more there than here, because I do not recollect what took place exactly then.

Cross-examined by Mr. McDonogh: I had not brought all to recollection when that took place. I knew Turner before, but never saw Twigham till three years ago at Bendigo. Upon my oath I never was in Van Diemen’s Land, nor in Port Arthur. I never was in Norfolk Island, nor ever escaped from that place. I came out to this country in the Susan, from Liverpool in 1840. — There were soldiers on board her, but she was not a Government vessel. She went to Sydney. My wife and children were arrested at the same time; I was brought before the bench three times, charged with aiding and abetting murder. The reason why I was not listened to then was, because I could not tell the names of the persons present. There were two others besides Twigham and Turner. There were two men there when the shot was fired, but I did not know them. One of the other two men was at dinner in my tent. — After hearing the reply of Smith to the person who cried out that the traps were coming, I was uncomfortable, but did not give them into custody because I had no opportunity. The police were about seven or eight yards from the tent door, through which the light issued. — When I saw the police, I did not point out Turner, nor ever heard anything against him previously as committing robberies. I never rode through Dunolly with Gipsy Smith, and the police were never after me for highway robbery. I never sent him a message to come and rob the stores, nor ever spoke anything of that kind. No other words than good night passed when I met the police. I had gone about seven or eight yards when I heard the scuffle. Not two minutes elapsed till the shot was fired. I did not assist the police, but went towards the house, and then saw Twigham come out with the gun. The scuffling was on the right hand of my tent, and about six yards to the right of the chimney. — When Twigham fired he was just past the chimney. He never had any conversation with Gipsy Smith, nor did I say that as Twigham was unknown he was just the man to put in for it. I never said that I would be even with Smith, and would send him out of the country to secure myself, nor that Gipsy Smith could swear the same thing against myself. I cannot read, therefore do not read the papers. I have heard that there are rewards offered for the conviction of these two men. I do not expect to get a penny if Twigham is convicted. I have heard of New Zealand, but never had any inducement relative to that place, or any inducement at all to come forward to clear the innocent and convict the guilty. I did not know that any guns or blankets were found in a water hole near my tent. I came out free to Sydney, and came free to Melbourne.

Re-examined by Mr. Ireland: I know Mary Barrington. She is here.

The jury found the prisoner guilty.

William Turner, alias Gipsy Smith, was then placed at the bar, and indicted for the wilful murder of Serjeant McNally. He was defended by Mr. Prendergast.

Mr. Ireland opened the case, which was identical with Twigham’s, tried on Monday, and it was for complicity in the same murder that this prisoner was now tried.

Mr. Prendergast raised a technical objection that the prisoner was not then in legal custody; and evidence having been called, it appeared that the warrant of committal could not be found. Serjeant Drummond had, according to his own statement, handed it to Inspector Barclay, but the latter did not remember having received it.

Mr. Prendergast submitted that the warrant was not proved; a piece of paper had been proved, but no warrant, and therefore the prisoner could not be tried for murder. His Honor ruled that the objection was fatal to the indictment, and Mr. Ireland on behalf of the Crown consented to take a verdict of manslaughter, and the prisoner did so through his counsel.

The prisoner is one of the most hardened ruffians in the colony, as is shown in the evidence in Twigham’s case, and an accessory in the slaughter of a constable; yet the culpable carelessness of the police authorities has allowed him to escape the punishment he so richly deserves. It is to be hoped that the Government will make some inquiry into this matter, and ascertain to whom the blame belongs. The prisoner was remanded for sentence.


Twigham, alias Laxton, found guilty of the murder of Sergeant McNally, was brought up for sentence. On being asked in the usual way, if he had anything to say why sentence should not be passed on him, he said, Nothing more than the witness Adams, by whose testimony he was convicted, was a perjured man, and that his statements were false.

His Honor said he was perfectly satisfied with the justice of the verdict, and even if Adams’s character was bad, yet he had evidently spoken truly on this occasion, as the evidence of the police completely corroborated him. He proceeded to pass sentence of death in the usual form, without holding out the slightest hope of mercy.

The prisoner was removed without evincing the slightest emotion.


Gipsy Smith, was then brought up for sentence, and on being asked why sentence of death should not be passed upon him, entered into a long statement, declaring that now it could be but of little consequence to tell the truth, and he could have no inducement to utter what was false, as the sentence he would receive would last his life out, as he was now an old man, and could not hope to survive it. He declared in the most impressive manner that the man Adams, through whose testimony he had been convicted, was a perjurer, that he had been his mate in Van Diemen’s Land, twelve years ago, and that they were both under Captain Childs, in Norfolk Island. He gave a rambling, but striking history of his own life, and said that ever since he had been in the colonies, twenty nine years, he had never enjoyed any liberty but what he took himself; he had originally been sentenced for an offence which now he would not have been sent out for at all. With nine others he escaped in a whale-boat, was recaptured, and then sent to Norfolk Island for sixteen years, and when there he met with Adams. If he had had the same opportunities that prisoners now have, perhaps he would be now a different man. He admitted his guilt thoroughly and that he had become radically dishonest. The only thing that pained him was that a man of the name of Mason was now suffering in the hulks for a crime in which he (Smith) alone was the surviving participator; a case too of which Mr. Ireland must be aware. This fact, he declared, had haunted him ever since the man was convicted; had deprived him of sleep, and made him miserable. He concluded a characteristic address, by again averring that Adams was an escaped convict, and that if he went to Melbourne there were plenty there that knew the fact.

His Honor said that he had not intended to address him at all, but the prisoner’s remarks had shewn that he was still possessed of some feeling. He could not for a moment dissent from the verdict of the jury in Twigham’s case, for it did not depend on Adam’s evidence alone, the police corroborated it in every particular; whether he was or was not an escaped convict, on this occasion he had no doubt he had spoken the truth. The fact that he (the prisoner) had brought this fate down on Twigham, must be a dreadful reflection on him, and the narrow escape he had had himself, entirely owing to a technical point of law, had shewn him the position in which he stood himself. It was better that he should so escape the fate that would have awaited him, rather than that the law should be broken. The sentence that he would pass on the prisoner would be fifteen years’ hard labour on the roads or other public works, the first two years in irons.

The prisoner was then removed.

Spotlight: Melville’s Defence and Charges Against the Convict Superintendent (1857)

Perth Gazette and Independent Journal of Politics and News (WA : 1848 – 1864), Friday 30 January 1857, page 4


The great interest which the trial of Melville has excited in Victoria, and the astounding character of his statements, induce us to give his defence at length —

Gentlemen of the Jury — It is now necessary that I should take you by the hand, and lead you step by step through all the circumstances (commencing a considerable time ago) which have at last placed me in the position in which I now stand before you. From the first I have been the victim of a system of irritation and espionage. I was put under the hands of a doubly and trebly convicted felon — a man named Graham — who tried everything in his power to abuse, ill-use, and exasperate me, and make me insubordinate, that he might reap the reward of appearing more vigilant and meritorious than others by reporting me to his superiors. On more than one occasion he even laid his hands on me, and on one occasion violently pushed me. I seized him, not with violence or with a blow, but to complain of him; and instantly I was clutched by 12 able-bodied men, who dragged me, stuck me, beat me with bludgeons, leaped on me, trampled on me, and, dragged me by the heels to a dungeon, five feet, six inches by two feet, and one foot six inches. They handcuffed me, hoisted me up to, and fixed me, so as, to leave me on but the tips of my toes, and in this position of torture they held me for five day and six nights. They brought my food to the door within my sight to tempt me; but nothing passed my lips, The prisoners, my companions in confinement, men hardened to ill-usage cried out for me. They petitioned for me, and when unsuccessful on my behalf, they groaned, yelled, and howled to show their abomination of the treatment to which I was submitted. They even threatened to release me. These horrible noises were maintained for half an hour. The prisoners said they would liberate me themselves, and the guards feared and retreated. The prisoners lifted their soil tube, weighing twenty or thirty pounds, and with them beat against the door for twenty minutes making marks half an inch deep. .The authorities thought it prudent to make a concession, and they let me down; but it was only that they might get the prisoners safely stowed, for as soon as that was done they hung me up again. They propped me with supports placed under me, and there I remained twenty days. I was sent to a cell. For two years I remained where I never saw the sun rise or set — a cell six feet six inches by three feet three inches, and 10 feet high, with but one aperture of six inches for ventilation and light. Here I was kept with my body almost naked, exposed to the cold beams, and heavily ironed. Within hearing of obscene conversation and horrible imprecations, I remained without moral or religious help. I asked for books to beguile my weary hours, they were most brutally refused. One of them who so refused me said malignantly that he did know that I should ever get a book. A Presbyterian minister came to me, and offered me consolations, and he pressed my petition for books; but they were still refused. I saw him but once in two months. His occupations at last required him elsewhere, and he at last left.

Graham gets my own companiod [sic], the man transported with me, into his plots. They plant their spies — they make other men their tools. Among them is a superfine villian [sic], William Pitt. This man concerts a plan — he lays a scheme — he has a stratagem to make a target of the bodies of 13 of his fellow men, that he may get his own liberty for merit. I was fortunate enough to pick up a note which hinted his plans to me. From that note I guessed they were concocting my ruin, slowly, stealthily, but surely. From that note it appeared they calculated “it would all fall on the captain’s shoulders.” They had watched the minister on board, and observed the kind interest he took in me, and I overheard one of them whisper to the other, “One flat and one flat makes two flats.” I pricked my ears, and was on my guard, and said to myself, ‘Two flats and one flat make three flats.’ They found means, in spite of the regulations, to communicate constantly, but I was aware of them. After a time they gained over 15 or 20 men, including, as they supposed, myself, and the word was passed that I was “quite well,” meaning that I was willing. This man so ingratiated himself into all their good graces that he obtained their confidence perfectly; in fact, they at last regarded him as their demigod. But I knew the character of the man, for he had robbed me his companion; and I knew he would betray for his own gain. One word was passed — “there’s a push coming off.” I said to the man who told me so, “If it takes place when I am in my cell, it’s no good to me.” One question, was pointedly put to me, “Will you be in it?” I answered, “I have looked at it, and see no good in it; such a thing may be, but I don’t know the men, and therefore cannot advise it; nevertheless, if it comes off, I dare say I shall be somewhere about;” and I go on to say, “You take to that old man and leave the man that’s armed to me to deal with him.” Well, the thing goes on; they think I’m like a barracouta that will bite every rock in pursuit of freedom, and they therefore feel sure that I’ll be “there.” The morning comes; this traitor is not in the post where he ought to be — he seems to be giving the opportunity required. But I look at his eye closely; I look again, and see that his sword is newly sharpened, and that he has two pistols in place of one. My suspicions are confirmed. He is pretendedly drawn away; I hear the word passed, “Tell Frank to collar the old bloke.” That was to be the beginning, but it was not done; and they wait for me to begin. Desmond pretends to search me; I pass on; I see treachery in features which nobody suspects but myself: I go to wash, and return to be searched. The watch steps back, and I say, ” Mr.——, will you be so good as to give me a rub down” [the action of searching]. He says, “I am poorly this morning.” I say, “If you are never worse, there will be little ailing you in ——” Instead of acting as they have plotted for me, I walk off, and the are taken aback. Presently, seeing themselves outwitted, a multitude of warders start from their places of concealment on board with arms in their hands, and the chief warder says, “Its a good job for you it didn’t come of, for you see we were ready for you.” I tell all the prisoners what is the real case, and thus the scoundrels is exposed to them, and defeated of his promotion; at least, gentlemen, he is defeated for that time. Some six months after this, Greenfield, a Van Diemen’s Land constable and detective, comes among us. He gets the confidence of the other prisoners. After a time he says it will be better to have another “shracking” a display of remonstrance by hisses, groans, &c.], to bring our state under the notice of the authorities, I dissuade. He presses again and again; and then I suspect. After a time I found it was about to come to pass, and again I am to be the victim. What am I to do in this dilemma? I saw twenty or thirty men who are about to do a thing that can only worsen their position, and will most likely increase the severities practised on them; if I oppose, there are those among them who will say that I wish to get favour with the authorities; if I join with them, I make their condition worse. E [sic] man is yut [sic] in heavy irons in “the box:” if he is not taken out of “the box” it is to take place. I warn the authorities, without going into particulars, that if that man is taken out of the box it will be better for the subordination of the prisoners; if not there will be trouble. On this I am myself put in heavy irons in a box two feet by one foot two inches, and that is done to me for endeavouring to do good and to prevent evil. Patrick Sullivan comes on board the hulk. He makes a complaint about his food, and gets into an altercation with Cameron, which ends in his being, struck two blows. He returns blows, and is instantly beset, knocked down and jumped upon. His prison dress is torn off in the scuffle, and he is dragged out naked, and thrown into a cell like a dog. He is sickly and diseased; this treatment confirms his illness, and he dies. The day before his death he petitions to be liberated; but the overseer who is set over him, tells him —”If you’re too ill to work tell the doctor that; but while under me you shall work. I’m no doctor, but a working overseer, and, by God, so long as you are under me I’ll make you work.” His disease is of a scrofulous nature, and he is discharging from more than one place. His fellow-prisoners pity him, and remonstrate on his behalf. He petitions again, and ten of the men remonstrate again, and the overseer at last lets him off. Next morning, at the breakfast table, he died. (Sensation) Another man, a soldier of the —th regiment, a man who has fought the battles of his country, and has afterwards in this colony yielded to the attractions of the gold fields and deserted, is refractory. They put him in “the box;” there they drench him with water. He is furious and frantic. They put him in “the bath,” where the sea rushes in upon him. The man then becomes cranky. He is changed to the Success hulk. There the officers do not know him, and it is all gone over again. In the Success, the sea always comes in in rough weather. He cries out against his cell, and says he has a right to be put in another one, as long as there is a dry one in the ship. He raises a great disturbance at his grievances. For this they beat him, and put him in another cell, less, and wetter, and more miserable. He continues his outcry. Mr. Gardiner comes and beats him. They cut his head in three places. They gag him. He moans, and makes a stifled sound. Mr. Gardiner gives him blows again. They pour water into his mouth above the gag, and over his nostrils. He is then tried and sentenced — months of heavier punishment. There sits, under the Judge, Dr. Wilkins, the humane doctor, who had to take that poor cranky being out of his cell before half his sentence was out to save his life by wine, and diet, and indulgences. But it is too late — he dies! (A thrill of horror testified by audible murmurs throughout the Court). Another man devised a new plan of escape, but fails in carrying it out. he digs himself a grave, and, his companions cover him up. But it is ill-done; he is missed; search is made, and his place is discovered. Some of the warders beat him so cruelly that a warder — a man of no kind feeling — has to interfere, and say that he’ll report them if they go on. He is brought in — Mr. Gardiner turns to him and says — “Why don’t you run, that I may have a shot at you?” Irons weighing 40lbs are placed upon him, and at last he becomes one of the prisoners you have now to try. Eockey [sic] had some irons weighing 28lbs for two years; he prayed for lighter irons, and had heavier ones put upon him. Duncan remonstrated against the continuance of irons upon him after the time which they ought to remain on him, and then he had his irons continued and increased. Duncan was a man of bad temper, and I certainly think of very little sense; perhaps it may be allowed that be was a troublesome man; he is pushed, irritated, till he breaks out; and for that he gets solitary confinement in heavy irons for twelve months. He is put to the pump; one of his superiors considers that he is shrinking his work there, and says to him he’ll see if he can’t get more work out of him, which leads to words between them. He is up for insolence; they resort to violence with him; he scuffles, and they drive him headlong down a ladder fifteen feet long, and set at an angle of about thirty degrees, and then down a second ladder. At the bottom of that they beat him and jump on him. Another man sees what is going on, and does something which they will not have. They call him out; he will not come out to be served as he had seen the other served. They drag him out, they beat him, throw him down, and jump on him. They then take him up and try him; and they give him two years’ extension of his punishment. What has all this to do with me here? Gentlemen, I have, read the regulations of Norfolk Island, under which the worst criminals are placed who come from England. Twelve months of ——, then six years of ——, and then a ticket-of-leave, under which those men who are deemed the worst have the means, by good conduct and merit under their sentences, of enjoying a certain degree of liberty. Gentlemen, that system is a paradise to our case. The prisoners who come out from England there are gentlemen compared with prisoners in Victoria, and are the consequences of the system, as you see them in me any my companions, who will follow in this place. Better than those of the system of Norfolk Island and Sydney! In Sydney the men are allowed to go free one hundred miles into the bush while, I get twelve months where I never see the sun rise or set. For good conduct I am put in a cell, where I am compelled to break a pot for a reflector to increase the light to read. To preserve my health and life in this weary system I have endeavored to take exercise by making for myself a system of gymnastics, which I have regularly gone through. In this cell there was so little room to move, that I was only able to take a massive bolt, and work as if I were in the act of sawing. I appeal against my position, and I am put down on the lower deck. After a time, for good conduct, I am let out to work. I am even allowed to go and break stones. There I am put into the go-cart, and am made to drag that through mud over the ankles. I ask if I may not cut stone for mason-work. A man in authority says I may do so, as he has the intention to place me under the water, to work there at foundations as a diver. I say that I will only go to reduce my sentence one half. I thought it no great favor, after never seeing the sun for two years, that for good conduct I should only be allowed, by working all the hours of the day under water, able to reduce my time from 28 years to 14. Again you will ask me what has all this got to do with the charge that is now before you? Why this shows you that the prisoners are by the treatment they meet with brought to that state of mind that they will, seize upon anything for freedom. And, gentlemen, you can easily see that having so many years of captivity before me, they all actually think that I will be willing and ready for any attempt. In me you see a man, however, who would scorn to tell a lie even to save his life; but I have on premier motives. I never was a murderer or a ruffian, though I have been a robber. I have been branded, as a robber. I have robbed; I allow that, and I suffer for it; but no living being can say that ever I did a cruel or cowardly action; and if I had twenty necks to lose for this cowardly crime with which I am charged, and if all of them were to be broken for this crime, they would not atone for it. It is not to save my life that I desire, for at the best it is most likely that I shall finish my existence in a gaol. What, then, is the true statement of my share in what happened at the murder of Owen Owens. I was down towards the wharf, and see a crowd of men at the light-house. A man points out two cutters, lying convenient, with sails spread; and he says, “There is a chance for liberty; there is a strong fair wind; we must take one of those cutters, and, if we can, escape in it.” I see instantly how the case stands. I see the constables in one direction; I see the ships with armed wardens on the other side. But I see that, with the wind then blowing, if we get those cutters, we are out of fire in three minutes. I know that if there is any attempt to escape I shall be the mark for every bullet fired. I see the chances are nine to one against me, but I instantly resolve I go on board the launch with the intention not to kill a man, but to hold up my own body as a special mark for the aim of hired murderers, in hopes of liberty. In the launch I see the men hesitate to haul up the tow-boat till we were advanced about 200 yards. I think Mr. Jackson is not wrong there; we were too far. At last we haul up the tow-boat. I think I was about the first into it; and I held her on while others entered. Mr. Jackson then says that I and another knocked him overboard; he tells a lie. I certainly should have done it if necessary for our object, but I did not, for he was not there to make it necessary. Nor did I “push,” or, as he afterwards says, ”hold” him under. It’s an arrant lie; I am incapable of it; but I pass that with contempt. I saw the deceased stowed away in a passive position. We got under way. I heard Hyland cry out to the warders to fire. I stood up, and said to him, ” Good-bye,” as much as to say, “do your worst.” The wind was blowing hard that day, and the management of our boat was bungled; she got foul of the towing warp, and could not cross it and head towards the cutters laying under sail; we abandoned that purpose, and went “about” in hopes of rowing off dawn wind and tide. I heard the fire, and said, “Now they are delivering their murderous volley!” Immediately after I saw one of my companions lying down. I said, ” Get up Dick; this is no time for cowardice or slinking.” He said, “I can’t, I’ve got two balls in me” I saw the blood coming out of him, and said, “Oh, if you are hit, I’ll do all I can for you;” and I look off my cap, and dipped it m the sea, and put it to his wound to stop the bleeding. While so engaged I heard the boy Macdonald (who was at the bow-oar, double-bank with another), cry out, “Oh, my God!” or some such words. I turned round and saw the second blow struck at Owen Owens by Stevens. Presently he said, “I’ve done it. I prefer this,” and he dived overboard. The police were then coming up with us fast, and sooner than be captured again that man gave up his life. I appeal to men who certainly would not be the most willing to speak in favour of one whom they may consider has done much towards sacrificing themselves. The whole of their evidence will point to the man who was the most likely to have done this deed. We are taken back and placed in dungeons. I was put in irons which are called 36-pound irons, but which I should certainly say weighed 40 pounds. We do not know how the case is to appear against us at the inquest. The inquest is held on the Deborah (hulk). The witnesses are examined in one room and we are in another. I am called in once. We are committed without being allowed to hear the evidence. I hear that I am the man who is to be charged with striking the blow. I send for the visiting magistrate and the clergyman. I told him I was not the man, and that it would be better for him to test the truth of that by examining all the prisoners successively. Barker, and some other witnesses at the inquest, have stated, in the presence of the Inspector and others, that I was not the man. I appeal to have the depositions of these witnesses, and to have subpoenas for these men, but get no redress. At last, when I come here I appeal to Mr. Farie, the Sheriff, and he immediately grants me everything I am entitled to have. I was allowed to subpoena witnesses. But how am I to do that? I am in a dungeon shut out from the world. No kind friend comes to me — no man who knows the truth says to himself, “It’s a lie, and I will come forward to testify to the truth;” so I am left without help. But I for some of the very men who were employed shortly before in shooting at me, and for the men on the launch, who did not join in the attempt at escape, but who may have suffered severely on account of these occurrences; for I say to myself some of these men will speak the truth, and the truth is all I want. I send also for Pavey, and for all other man, whose evidence I hear was in my favour, and one of them spoke in direct opposition to Jackson (the first witness for the Crown at this trial), and also for a warder that has been dismissed because he “would not stand to see men shot like dogs.” But some of these, as I have said, are dismissed, and gone where I cannot find them; others have leave of absence given to them, and those I cannot bring forward. Two of the warders are out of the way. With regard to my defence, I said that I knew none of the gentlemen at the bar, and I had been so long shut out from the world that I had neither friends nor finances to engage counsel for me. I know it was most likely I should fail in defending myself, but I must attempt it. I was told that many gentlemen of the bar would willingly take up my case to distinguish themselves, and at last — said he would write to Mr. Ireland. Things were dilatory; and at last I was told counsel are engaged. Still I am unable to bring forth the warders. I am informed in the hulks that three copies of the depositions at the inquest have been sent to me; but two only have come to us. I suspected that the other copy would be used to our disadvantage, in concocting and agreeing upon a case against us, and I pressed for the third copy; but I am answered that I am only cavilling, and we are all enjoined strictly that the two copies must be left out of our cells each night, I again make an appeal for the witnesses, but am told that one is dismissed. I ask Hyland what he is dismissed for and he barks in my face like a native wild dog, and asks me what business is that of mine. I say to that most respectable person that it is business of mine, for that the man who has not feared to incur the displeasure of his superiors by saying that he would “not stand by and see men shot like dogs,” will not fear to speak the truth now, and the truth is all I want. And so, gentlemen, I am left without witnesses and without counsel for my defence. And what, gentlemen, is there left for me to struggle for? A life such as I have lately lived is valueless to me, and my only motive now to struggle is to clear myself from the charge of this cowardly, this dastardly crime — for I say that to take the life of a man when there are ten to one against him, and he is in a passive position, would have been the crime of cowards. The men who are now charged with this crime were not guilty of it, and if they suffer for it they are judicially murdered. It is not the Judge nor the Jury who now try them that will be responsible; their duty is to fulfil their oaths according to the evidence before them; and if that evidence costs us our lives, it is those who make this evidence who are our murderers.

The prisoner then adverted to the paragraphs which lately appeared in a newspaper, describing a pretended attempt of Melville to escape, by changing his dress with a Roman Catholic priest. He read the paragraph with bitter emphasis, and with striking comments on each sentence. We have heard Mr. Farie, the Sheriff, state that the whole affair is a pure invention, not even founded upon one fact. Having finished the paragraph. Melville went on generally in reference to it thus — What does the insertion of such an article as this in the papers mean, when we come to recollect that officers of the Government, and of the departments write in the press? It appeals to a religious sentiment, and arouses a religious, prejudice; the most sensitive of all prejudices — the most easy to make and the most difficult to remove. And it was to work secretly; for where I was shut up from the world they judged it would never come to my ears in a dungeon, but would act as a slow, secret, and insidious poison in the minds of a large portion of the public, from which the Jurymen to try me would be chosen. Gentlemen, I never was a coward, and I feel nothing out the meanness of convicting myself in the judgment of the public by any such an act as that. When I die I will not die by my own hands, but will die as a man and as a Christian; and to have done such a thing as that would have been signing my own death-warrant. I see that as the case has been laid before you, the evidence is calculated to convict me. But can you not see the motive and spirit of that case? On the other hand, can you not see the motive of the case which I wish to prove to you by the evidence which I would lay before you in my favour, if I had the liberty to do it. If you can question the motive of a man who would call on the men hired to shoot him to death, on other men who saw all, and have no motive to speak in his favour but only the motive of speaking the truth, and on others who are also the men to stand their trial for the same crime I have done. I must submit to die, and I shall be happy to leave a life where no justice can be done to me. I call Heaven to witness that the others, like myself, mere spectators: and I say that if you take the evidence of men who saw me only now and then, and then only among a crowd of others, who on this occasion were at a great distance, and who differ from each other in their accounts, although they have had every opportunity of agreeing on their case, and if you do not receive the evidence of men who have known me intimately, and my every action, for years, and who were on the spot, then I complain of the law, but yet submit to my fate. But if I remove the impression from the minds of the public, I am content to he a martyr. I complain not of the Jury nor the Judge, but of the witnesses, who are my judicial murderers, and who sacrifice me to keep up appearances, and conceal the works which they have carried on for so long a time. I can forgive the Judge and Jury, and, like Steyhen [sic], ask pardon for them. Gentlemen, I forgive you; the fault is not yours, but theirs who bring me here * * *

You cannot see so clearly as I can that the evidence for the Crown shows combination and concoction. As I stand before God, I say to you that I can see that the evidence is made up to agree.

Spotlight: Notoriety (Geelong, 1853)

Geelong Advertiser and Intelligencer (Vic. : 1851 – 1856), Wednesday 5 January 1853, page 2

NOTORIETY. — Dragged from the sinks of crime into public notice, Captain Melville and his associate Roberts stand prominently forward, challenging notoriety. Every examination adds to the sum of their crime, and rumour, busily at work, invests them with fictitious attributes, to satisfy a morbid craving after depravity, the more palatable because the more debased, and having but one saving quality — that of unmistakable courage unmixed with cruelty. The poor wretch who pilfers a pocket handkerchief, and slinks away to some den, is looked upon with contempt, and is immured without pity; but matriculating in crime, and taking a higher degree at an assize, by becoming familiarised with violence and wrong doing, attains to notoriety, and falling into the clutches of the officers of the law, the handcuffed highwayman walks as proudly between the police, as Caractacus among the Roman soldiery. Neither Captain Melville nor Roberts attempt to deny the crimes imputed, nor even to extenuate them, but on the contrary rest content if they can elicit from a witness a proof of extra daring, or an instance of highwayman-like politeness, or Botany Bay generosity; robbing a man, and then returning him a small portion of the spoil, or taking credit to themselves for opening a spirit store, because they did not alarm the delicacy of the ladies. There is something truly edifying in the urbanity of Captain Melville, tendering his thanks to a witness, and expressing himself obliged at the mode in which the witness has given his testimony; or again, warning another against giving way to animosity, and impressing him with the obligation of the oath taken. Then again, how gentlemanly is his behaviour to the Bench — “gentlemen, will you favor me with taking down the last observation of the witness,” or, “gentlemen, I must object to Mr. Carman whispering there, he seems to be Crown Solicitor to this small community.” Melville smiles triumphantly, and Carman looks, as only Carman can look, whilst Captain Fyans remains apparently as immoveable as the late Duke of Wellington in the House of Lords. Roberts stands bolt upright, faces the court unflinchingly, and speaks in monosyllable, declines to cross-examine, and contents himself with asseverating that “It’s no use.” And the Captain’s talent is not confined to bye-play, he can speak like a true melodramatic hero, sonorously and boldly, here is his last speech — “Gentleman, the remarks I have to make are simply these, I am now lying under remand, and not having received the verdict of a jury I do not consider myself a prisoner of the Crown. I claim, then, to be admitted to the same privileges as others, and made appeal by letter to the magistrate. Those privileges have been refused to me by the jailor, and by a deputy clerk from Melbourne, holding some menial situation. I made then an appeal for an interview with a clergyman — a privilege that is allowed to those guilty of the blackest of crimes, and sentenced to the last penalty of the law — but they still continued to deny me; they said that there was no justification in the Prison Regulations for such favors, but they would not submit the rules to me for my inspection, nor would they allow me pen and paper to communicate with those who could compel them. I want to know if I am to be allowed pens, ink, and paper, and it is to ascertain that, I make this appeal as a prisoner, although not a convicted prisoner, to the Bench. I have made application to the jailor, and to some one calling himself a deputy clerk, who can take advantage of my position to insult me — little to his credit — and this, too, whilst I am under guard of steel and bullet. Why should I be selected as a victim to be exposed to petty venom and spleen. I have an appeal for interview with a clergyman nine times, and was met in the harshest, most brutish, manner by those in power. There is another subject, gentlemen, that I wish to speak of, regarding reflections that may be thrown at a certain family. It is necessary that the public should know that previous to the occasion when I was taken I introduced myself to that family as a gentleman of independence, and in that family I always conducted myself as a gentleman, guarding the least clue to my character, and it would be a pity and an injustice that my misdeeds should fall upon them.” After Mr. Strachan had promised that the complaints made should be submitted to the sitting magistrate, Captain Melville complained that they were subjected to solitary confinement.

Captain Fyans: So you shall be — we have no other secure places down here to keep you.

Captain Melville: I can tell you, then, that you will have to do that with fixed bayonets, your Worship.

Chief-Constable: Make way there! Stand back.

CAPTAIN MELVILLE AND THE BENCH. — The Rev. Mr. Warde, in reply to Captain Fyans on the subject of the application made by the prisoner, Captain Melville, distinctly stated that he should decline entering the cell of the prisoner, except accompanied by another person. The Rev. gentleman observed subsequently that he did not think the prisoner in his present state of mind fitted to receive the visit of a clergyman.