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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Kingston [1799] NSWKR 11; [1799] NSWSupC 11

convict escape, assisting - convicts, expiry of sentences

Court of Criminal Judicature

Dore J.A., 22-23 October 1799

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., X905, 363- 372 (and see pages )

[363] His Majesty's Territory called New South Wales

            At a Court of Criminal Judicature holden at the Court house in Sydney in and for this Territory by virtue of a precept under the hand and seal of his Excellency john Hunter Esquire Captain General and Governor in Chief in and over his Majesty's Territory called New South Wales on Tuesday being the Twenty second day of October in the year of Our Lord one thousand seven hundred and ninety nine for the Trial of such offenders as should be brought before the said Court.


            The Judge Advocate  

            Captain Henry Waterhouse                               Captain John Thomas Prentice

Lieut John Shortland                                         Lieut Anthony Fenn Kemp

Lieut Matthew Flinders                                     Quarter Master Thomas Laycock

            The Precept being read and the Court duly Sworn the following Prisoner was put to the Bar and arraigned on the Indictment preferred against him namely John Kingston for aiding and Assisting Ann Holmes a prisoner to escape out of lawful Custody.

            The King

            against              } To which Indictment the prisoner pleaded "Not Guilty"

            Mr Kingston

            Aaron Davis being duly Sworn Deposeth that about three weeks ago Simeon Lord acquainted him that he had a suspicion the prisoner then Master of the Ship Hunter was about to take away a Convict woman namely Ann Holmes from this Territory and that Simeon Lord with the witness who were in Companionship with the prisoner in the said ship had determined that no person [364] should go away in the same unless their time was out; that some few nights after the prisoner asked the witness if he could keep a secret and informed him that it was his Intention to take said Ann Holmes away. The witness replied he thought he could not doth it for she was a prisoner for life whereon the prisoner (Kingston) answered if that was the case, he would not take any her by any means; the next morning the witness enquired of said Ann Holmes whether she was going in their Ship, as he had often in a Jocose way publickly said to her before the man she cohabited with, Nand I will give you a message. The witness asked her if her time was out and she replied it was; the witness told her he was informed she was for Life, and if not, desires her to get a Certificate of her time to convince him. The woman said she would not do that for it would come to the Man's ears she lived with (namely Henry Hecking) and he would prevent her going: The witness then told the prisoner (Kingston) that same morning that if he approved the witness would search the books containing the prisoners' times and inform him about hers. The prisoner expresses himself obliged if he would do so, upon enquiry found the said book was at Government house, where he applied and received a note sanctioned by His Excellency from his Clerk Francis Fowkes that there was no time against the name Ann Holmes in the list of Convicts but that she was supposed to be a prisoner sentenced for Life and that the Governor desired she might be taken away. The contents of said note were communicated to Kingston by the witness who then told the witness that if the Case was so, he would think no more about it. Here that witness the matter to dress. That about three Days before the Sailing of the ship the witness was told by Henry Hecking that a faulty Job was going to be done, to take his wife away, as she had informed him, her things were on board tied up in a Table Cloth meaning her clothes [365] wearing apparel &c. The witness answered Hecking that he would not suffer any such thing to be done; that the witness and Hecking came together on shore to the house of Simeon Lord in Sydney where and to whom Hecking repeated to the like effect. That Hecking then went home and on his way met with the prisoner who afterwards came to the house of Lord who with the witness related to him what had passed, to which the prisoner replied he had seen Hecking and had pacified him. That the witness heard no more of this matter until Wednesday morning last when the ship sailed with him on board; that about two or three o'clock same morning Simeon Lord with Mr Aickin and Mackin who came with orders received from the Governor that Henry Hecking, his woman and children were absent from Sydney and said to be expecting to be taken up by the Ship Hunter on board which Constables had also been sent to attend the Ship out, and that if the said Hecking, his woman and Children were not apprehended during the time the peace Officers remained in the Ship, that the witness was expressly desired not to suffer them to be shipped on board. That soon as the ship got outside the Heads a Boat appeared in sight to the Southward which proved to be a boat with said Hecking, his woman and two Children, and on being Hailed they all came along side the Ship when the Ship's company or parcel of them appeared in a mutinous state but soon as the prisoner Kingston came out to them they were quelled. That the witness observing the woman and children be much fatigued, he from motives of humanity desired they might come on board for refreshment. Whereupon Hecking, the woman and her two children came on board, were received into the Cabin and had some comforts administered to them. That the witness went out of the cabin leaving the prisoner with party. Soon after the witness returned to them and being left alone with [366] the woman she charged the witness with being the Cause of preventing her being taken away, and said she might yet go if he the witness chused it, for it did not make any odds the Constables being on board. That some time after this Conversation the witness expressed his desire of the ship being taken back into port again, when the prisoner declared it should not, for there was no necessity for it, and asked the witness his reasons for being so very desirous for bring the ship in, who replied it was to convince the Governor that neither him the witness or Simeon Lord knew any thing about the taking away Hecking or his family. The prisoner observed there was no necessity for that either, for he was willing to declare before Mr Bookless Masley mate of His Majesties ship Reliance who was sent on board with Henry Kable and other Peace Officers to prevent the escape of said Family that neither the witness or Lord were privy to or knew any thing of the matter. The witness not being satisfied with this declaration, prisoner proposed if he thought proper to bring the ship close to the Heads and send the witness on shore with in a boat with a letter to the Governor to testify the perfect innocence of the witness or Simeon Lord, which letter was accordingly written by one Puckey on board and read in the presence of said Bookless and Kable the Chief Constable, which letter was not sent the witness declining the proposal. The said letter produced has no signature. In consequence of the above misunderstanding the witness remained upon the Deck the whole night, in the Course of which having some Conversation with George Murphy, second Mate of the ship, he enquired of the witness if he knew the number of Boxes he had on board; the witness replied he could not tell; said Murphy then asked the witness if he had any Boxes sent on board without a mark, who answered no. When Murphy informed him that some Boxes had been brought on board by night and were put into the Cabin, which he had been ordered by Kingston the prisoner to remove and put down into the hold, with [367] the name of A. Davis written on them with chalk; said Murphy further informed the witness that he had by order of the prisoner been cruising up and down the Bay in the night in search of Hecking and his family to discover where they were. That when the ship was standing in for the Heads toward the Evening and whilst the Pilot Watson was in the Cabin the prisoner put the ship about where on the pilot asked his reason for it; when some dispute arose about his Taking the ship to which the prisoner replied she would not fetch in on the Back she was; when Watson insisted she would as she was standing right for the Harbor and added that in Consequence of the prisoner taking the vessel out of his hands, he would not take further charge of her and called for his Boat to take him on Shore. The boat was immediately ordered but the witness objected to the pilots leaving the ship, saying he insisted on his taking her; at the same time pulling a Pilot to the head of Watson, said Pilot who thereupon took charge of the ship again and brought her into port again the next morning. The witness then came on shore at Sydney and gave full information of the whole of the transaction. The witness further adds that the prisoner informed him that he had marked the Boxes before mentioned himself, whereon he had written with letters in chalk A Davis and his reason for so doing was to elude the enquiry of Simeon Lord who coming on board might otherwise make enquiry whose boxes they really were.

            Question by the Court:

            Being yourself part owner of the ship and having considerable charge of her, and knowing what you have in Evidence already stated on the improper conduct of the Master of her, what steps did you take with the Magistrates to prevent it.  

            [368] Answer:

            I acquainted His Excellency the Governor and also Mr Balmain therewith, I believe about three weeks before the ship sailed but am not certain as to the exact time.

            Question: Do you from your own knowledge know of any active part used by the prisoner to take the woman away.

            Answer: No.

            Question: Did the prisoner tell you that he marked the trunk in your name, and further say that if you would not bring the matter forward that he would give up his share and concern in the ship.

            Answer: The prisoner did say that he would give up his concern meaning the Command of the ship, to indemnify them meaning myself and Lord if I would not bring the matter forward.

            Question: In part of your evidence did not you say that the prisoner testified that neither you or Simeon Lord knew any thing concerning the intended escape of Ann Holmes but that the prisoner was the only person concerned in assisting her.

            Answer: Yes.

            Question: Did not the prisoner tell you he had planned the woman's escape.

            Answer: No.

            [369] Question: What gave you reason to be alarmed at the Prisoner's conduct from the time you were about to take you r departure.

            Answer: I was alarmed at the discourse of the woman when she was on board, and the prisoner not enforcing his own Orders with the Ships company, and refusing to take the ship into Port when desired so to do.

            Question: When Henry Hecking came along side the ship at, did the prisoner take any steps or give any information to him, by which Ann Holmes might elude the vigilance of the Officers sent to search her.

            Answer: No, not to my knowledge.

            Question: Did the prisoner appear to obstruct the Officers in their duty any way.

            Answer: Not to my knowledge.

            Simeon Lord, being duly Sworn corroborates that part of the Evidence of Aaron Davis so far as related respecting this witness.

            Question by Court:

            Do you from your own knowledge know if any active part taken by the prisoner for the escape of said woman.

            Answer: None whatever.

            Henry Hecking duly sworn deposeth that about a week ago last Saturday he missed from his house the clothes and wearing apparel of Ann Holmes, the woman who cohabited with him, on which he enquired of her where they were, as he supposed she was going to play some Tricks with him and he would complain [370] to the Governor. She replied that Aaron Davis had promised to take her away in the Hunter and as said Davis was going no further than Norfolk Island, she had another friend in the ship that would assist her naming (Captain Kingston) the prisoner and she further informed the witness of her clothes were on board sewed up in a Table Cloth, and that one of the Sailors belonging said ship had taken them on board for her; that being questioned further by the witness about her getting away, she said her intention was to hire a boat and lay off the South head and the prisoners would send a Boat to meet her. That yesterday sennight the witness being Pilot he went on board the Hunter to unmoor her but the Captain not being on board, he returned on shore and complained to Lord and Davis of the woman's intention to go away in the ship and made them acquainted with the circumstances before related, when they promised the witness that the woman's clothes were on board they should be sent on shore again. That the witness afterwards met the prisoner who told him he thought he did not use him well to take the woman away without his knowledge; that the prisoner replied he did not know any thing about it but if her clothes were on board he would send them ashore, they then parted. About two hours after they again met when the witness asked the prisoner if he would give him a passage with the woman and children, who replied he could not tell what to say to that. Are you in earnest? being answered he was. The prisoner said he had no objection to take the witness but as to the woman, he heard she was not out of her time, the witness answered she was out of her time in March last, for that she had been upwards of seven years with him; the prisoner then said that if they could get the governor's permission he could have no objection. The witness observed that the time was so very short he did not like to ask the Governor fearing he might prevent their going; the prisoner asked the witness how he would manage it then; who answered he would take his boat and run out [371] to sea and lay off the prisoner; expressed his wish that he had much rather the witness would get the Governor's permission and asked him if he had no concerns in business, or affairs to settle and if he could leave enough behind him to pay all his debts. To which the witness answered he had sufficient to pay every body and he would execute a power of Attorney to Simeon Lord and assign over to him his grant of Land property and effects whatsoever, after which conversation they parted, and the witness declares he saw no more of the prisoner until he came alongside the ship at sea.  

            Question by the Court: When you observed the prisoner the time was short, and that you did not like to ask the Governor, for fear of being stopped did the prisoner agree to take you the woman and the Children without leave.  

            Answer: No. He said he would rather have the Governor's permission.

            The witness by this answer having grossly prevaricated from his former evidence sworn to and subscribed by him before me the Committing Magistrate and being questioned thereto says the part alluded to was objected by him at the time said Deposition was made.

            At half past Three the Court adjourned until tomorrow morning at Ten o'Clock.

            Wednesday 23rd

October 1799   } The Court met at Ten o'Clock pursuant to Adjournment.

            Captain Henry Waterhouse having waited up on his Excellency Governor Hunter for the purpose of ascertaining whether Ann [372] Holmes the woman in the foregoing prosecution mentioned is a prisoner and for what term she may have been sentenced to this Territory for Transportation. Reports to the Court that His Excellency had no other Document in his possession than the one produced and delivered from the Governor by the Provost Marshall to the Court, wherein the name of Ann Holmes is mentioned against whom no description, age, Offence or Sentence is set down or named nor any other remark whatsoever except Filed namely York and which said papers bear no date, but is stiled and superscribed "List of Female Convicts ordered to be put on board the Royal Admiral". Further Captain Waterhouse reports that His Excellency had assured him that he had examined every paper in his Possession respecting Convicts Lists and that his answer to the Court was, There was no Official Information whether the said Ann Holmes was a Convict for Life or not or for any specific Term.

            The Evidence for the Crown being Closed and the prisoner put to the Bar. The Court signified to the prisoner that they do not from the Evidence of the prosecution find it necessary to put him on his defence the prisoner is therefore



Published by the Division of Law, Macquarie University