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

R. v. Nicholls [1799] NSWKR 3; [1799] NSWSupC 3

stealing - receiving stolen goods - criminal procedure - evidence, hearsay - Norfolk Island - Bligh, Governor, rebellion against

Court of Criminal Judicature

Dore J.A., 12-16 March, 1799

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., X905, pp 102-114 (and see pages 124 - 159) [1]

[102] The King against Isaac Nicholls, on the prosecution of the said Mary Mullett otherwise Talmage for receiving stolen goods.

            Richard Baylis again sworn deposeth that on the delivery of the basket of tobacco mentioned in the preceding evidence by the said Wright to this witness at the empty house on the morning the prosecutrix was robbed of it, the witness was directed to make the best of his way with the wheelbarrow and the contents to Isaac Nicholls' house. That Wright gave this witness his positive injunctions to take the said tobacco to Isaac Nicholls' house as aforesaid. That he did so accordingly, and on coming to Isaac Nicholls' house enquired of the servant (Valentine Wood) for his master. That said servant called down the prisoner, and at the instant Wright came in, who conversed for some time with the prisoner. That in the course of such conversation the witness heard the prisoner tell said Wright that if he would come in the [evening] he (the prisoner) would pay the said Wright for the tobacco (meaning that tobacco he had just left in his possession). That the witness by Nicholls' order deposited the said tobacco in a room on the right side of the prisoner's house. That the witness was advised by the prisoner to leave the wheelbarrow in his yard and call for it again in order to avoid suspicion. That he did so and in a few hours afterwards he went for the said wheelbarrow and was then told by the prisoner's wife that he had better take away the tobacco (meaning the tobacco so left in the morning) for that there had been an alarm about Mrs Mullett's robbery and the constables were in quest of the property she had been robbed of. That the witness answered he would call for it in the evening. That he then took away the empty barrow and as he was wheeling the same near the gaol he met the prisoner who asked him where Sam Wright was. That he answered the prisoner and informed him he (meaning Wright) was coming down this street with Jack Colley. That he took the wheelbarrow home to Joseph Taylor's. That he was shortly after taken into custody at Taylor 's. That Wright was also apprehended. That the next morning they were both discharged. That the witness went home to Taylor 's where he usually resided. That Taylor expressed himself surprised at the witnesses being discharged without having had a hearing. That the witness observed to said Taylor that it seemed to him a planned thing between Kable and the prisoner to detect them in the act of taking the tobacco in the place where it was concealed. That in the evening of the same day on which the witness and Wright were liberated (being Monday) they went together to the prisoner's house in order to receive the money for the tobacco according to the prisoner's promises. That when they came there the servant informed them that his master (meaning the prisoner) was not at home. That in the course of same evening they called again when the said servant told them his master was at home and added "Oh you are come about the tobacco". That said servant then went up stairs to his said master and personally returned bringing a message from the prisoner importing that the tobacco was placed between two rocks near the new house building for Mr Moore and if they chose to go for it they might. That they then left the prisoner's house and this witness refused going to look after the said tobacco saying he would not be hanged about it. That Wright observed he would go for it if he could procure a boat. That this witness remarked he was sure there were constables set to watch it. That the witness then returned home to Taylor 's house and related to Taylor what had passed. That Taylor was of the same opinion with the witness as to the circumstance of the tobacco being watched and made the same remark from the witness having been liberated in the morning. That William Geary was present and saw Wright deliver the witness the tobacco at the said empty house in the morning of the robbery as before stated.

            Questions by the prisoner. Did Wright leave my house at the time you speak as to the delivery of the tobacco?

            Answer. Yes. They both went away together.

            Question. After Wright and you were released out of custody did you and he come to my house immediately?

            Answer. No. Not till the evening.

            Question. At the time you say you called on me what did my servant tell me of?

            Answer. As before stated of the tobacco.

            Question. Was you present when my servant told me you and Wright were come for payment of the tobacco?

            Answer. Yes. But could not hear what passed.

            Question. Have you been called up frequently to the Judge Advocate's office?

            Answer. Yes, when Mr Balmain sent to me.

            Question. Was not your deposition read to you since my commitment?

            Answer. Yes. Once or twice.

            Question. Was not you called out to Mr Dore's house by Mr Balmain at the time of my examination?

            Answer. Yes I was.

            [103] Question by the prisoner (continued). Did you not stand in conversation at the time attended to with Mr Bloodsworth and Taylor the prisoner, about three quarters of an hour?

            Answer. Yes. When Taylor was sent for I went out of Dore's and Taylor then told me he had informed Mr Balmain all about it, and that I had better confess and tell all the truth as they were hanging me as fast as possible.

            Question. Did Mr Balmain, or Bloodsworth, or Taylor persuade or threaten you so as to induce you to confess?

            Answer. Taylor told me it would be best to confess. Mr Balmain threatened to put me in irons.

            Question. Did any of the persons above mentioned signify to you that you would get clear by confessing?

            Answer. Nobody but Mr Balmain.

            Question. Why did you deny any knowledge of the business at first and afterwards come to this confession?

            Answer. Mr Balmain said if I would speak the truth I should not be hurt.

            Question. Did you hear any persons say that when you came into court you would make a bungling story of it if you did not recollect and that you must be careful to remember what you said in your deposition?

            Answer. I do not recollect any thing of the sort.

            Michael Geary called but as it appeared that he had been in court during the last examination (although ordered out of court with the other witnesses) his evidence was deemed inadmissible and he was ordered into custody.

            James Mansfield (this evidence objected for the same reason, but the objection was overruled by the court) being duly sworn deposeth that about two months since he landed his Captain from the Reliance at government wharf about nine o'clock in the evening. That he then went with the boat to Mr Balmain's steps where he landed. That as he was going towards Captain Waterhouse's garden house a man well dressed passed him round the paling near Mr Moore's new house. That the person walked very fast and had on his shoulder a basket covered with a cloth. Believes it to be a basket of tobacco. That the witness said "you are in a hurry seemingly". That the person made no reply but turned very quick round the paling. That the person thus described was tall, had a long coat on and the witness believes [muscaton form].

            (Basket of tobacco produced and the witness declared that the basket he saw was similar to one of them.)

            That thinking the man was upon no good design, the witness called to his comrade, Peter Paine, and they produced to the spot in quest of the man but could not find him.

            Question by the prisoner. Have you not been in conversation with Dogherty, the Taylor lately?

            Answer. Yes. On Sunday last Doherty asked me if I knew any thing about the tobacco that had been stolen and I gave him the above information.

            Question. Did Dogherty mention a person named Lacey to you?

            Answer. No.

            Question by the court. Did you never mention to anyone whom you suspected the person with the basket to be?

            Answer. Not to my recollection. It is so long ago.

            Henry Kable being duly sworn deposeth that about the middle of the month of January, the prisoner sent to desire to speak with him. That he went to him accordingly and was informed by the prisoner that an odd circumstance had occurred that morning. That his servant had informed him two men had been at the house with a wheelbarrow and desired to leave a bag with its contents. That the servant had not permitted them so to do, but referred them to Miller's where was a warehouse for the purposes. That the prisoner shewed to this witness that the two men seemed to be in a flustration and had some words together which the prisoner's servant said he could not understand. That one of the said men took what he supposed to be tobacco and directed his course (not towards Miller's) but towards the hospital. That one man wore a blue jacket. The other a light drab jacket. That the prisoner told the witness he had heard of Mrs Mullett's robbery since the men called and he had every reason to believe it was a basket of tobacco that the said bag contained and that it was Mrs Mullett's tobacco. That his servant had observed the mouth of the bag was open and therefore judged it to be tobacco. That the prisoner told the witness if he would look well about Mr Balmain's premises or the magazine, he would be very likely to find it. Being so light in the morning that it was not possible for them to remove it to any great distance without danger of being discovered. That the witness thereupon asked the prisoner to accompany him in the proposed search, as he had the morning before found these baskets of the like disposition. That they went in quest thereof but their search was fruitless. That the witness left the prisoner at home and in the course of same day apprehended of his own accord Wright and Baylis and detained them on suspicion of being concerned in the robbery until the next day whereby Mr Balmain's orders he released them. That during the time they were in custody the witness discovered the tobacco but did not remove it, rather choosing to set a constable to watch it, in order to find out the parties in the robbery. That no one coming near it the witness had it conveyed to Mrs Mullett, to whom it was restored in consequence of her having made oath to the property.

            [104] Charles Jarratt, seaman of the Reliance, being duly sworn, deposeth that one evening at the garden house of Captain Waterhouse he was arrested by James Mansfield and given to understand that some person had gone up the hill with something suspicious on his back and asked by the said Mansfield to go in pursuit of him. But this witness observed that it was a matter that did not concern him and he declined going. That Mansfield thereupon left him and this witness retired to rest.

            Peter Paine being duly sworn deposeth that on the evening deposed by Mansfield he was one of the boat crew with Mansfield and was waiting on shore at Mr Balmain's steps when Mansfield made the remark that he had seen a man carrying something on his shoulder which he supposed to be tobacco and that said Mansfield asked this witness to go in pursuit of him. That they went but could not find him.

            At half past 2 p.m. the court adjourned until 10 a.m. tomorrow.

Wednesday March 13th 1799 at 10 a.m., the court met pursuant to adjournment. Isaac Nicholls was placed at the bar, and James Remnant being duly sworn deposeth that about the 22nd or 23rd of last month he called at the house of Joseph Taylor to enquire after a sick person. That he entered the conversation with Taylor and the name of Baylis was mentioned by Taylor, who observed that said Baylis was a principal evidence against Isaac Nicholls but that he thought Baylis would not say any thing as he was brought forward for that he (Taylor) knew there disposition of the boy (meaning Baylis) and he was so fixed and determined in his mind that he would never be brought over to divulge any thing. That Baylis had lodged with him some time and he knew more of his disposition than any other person could. That this witness then observed he was going up to Parramatta if the wind was fair. That Taylor then asked him if he meant to go to Toongabbie and the witness replied he believed he should having business near there. That Taylor then said "you know the boy, Baylis". That the witness answered in the affirmative, having seen him at Toongabbie and at his ( Taylor 's) house. That the witness has said he should go to the house of one Jones, a baker. That Taylor desired the witness to enquire of Jones where Baylis resided. That Taylor thought he was working at Stapleton's farm but Jones would send for him. That the witness promised Taylor he would see the boy and Taylor then requested him to inform the said Baylis "that every thing remained exactly as it did when he saw or heard from him last". That there was no doubt that he would be examined on the business but that it rested entirely with him (meaning Baylis) or words to that effect. That the witness went the following morning to Toongabbie. That he called at Jones' and not finding Baylis there asked Jones if he knew a lad of the name of Baylis. That Jones informed him he did. That he had been at Jones' house the preceding evening. That the witness there said he had a message to deliver to him from Taylor and he wished him to be sent for. That after some further enquiry the witness found Baylis and delivered to him the message to which Taylor had given to him, adding that he would, no doubt, be brought up and that some little promise might be made to him. That Captain Wilkinson would exert himself to discover that perpetrator of the robbery but whether he chose to satisfy Captain Wilkinson in the business rested entirely with himself. He might do as he thought so to. That Baylis thanked the witness and shewed he should be at Sydney on the Friday following and desired the witness to tell Taylor so. That when the witness returned back to Sydney he saw Taylor and informed him of what had passed.

            Respecting the prisoner this witness would not take upon himself to relate any particular conversation passing.

            Joseph Taylor being sworn deposeth that about three weeks since he met the prisoner opposite Major Foveaux's house in Sydney. That the prisoner enquired of the witness when he had heard from the young one (meaning Richard Baylis). That the witness answered he had heard from him last week. That the prisoner then asked the witness if he thought the boy (meaning Baylis) was staunch. That the witness said he thought he was. That the prisoner then replied if he (meaning Baylis) was staunch in this, he should never want for any thing whilst he was upon the island and moreover added if Baylis is staunch nothing can hurt or affect me in this affair, meaning the stolen tobacco which he (the prisoner) had received from said Baylis and Wright. That sometime after the prisoner came up to the witness and told him the young one, (meaning said Baylis) were sent for by the magistrate but if he was staunch nothing could come out. That the said Baylis hath frequently conversed with this witness, at whose house said Baylis resided, and repeatedly declared that he had wheeled a basket of tobacco, delivered to him by Wright, to Isaac Nicholls' house and that Nicholls had told him to come again for the money and that when he went again in expectation of receiving the money he was told that the tobacco was stowed between two rocks and he might fetch it from thence if he pleased. That Wright accompanied him to Isaac Nicholls' house for the money. That the witness seriously admonished the said Baylis to have nothing to do with it. That he desired him to leave Sydney and go to Toongabbie. Remembers James Remnants having some conversation with him but would not say that he send any message to Baylis, or that he had any conversation with him respecting Mrs Mullett's robbery. Remembers sending a loose message of this import and no more, namely "to remember him to the boy".

            Questions by the prisoner to this witness. Have you had any conversation with one Underwood respecting me?

            Answer. You were the subject of conversation when I worked at Underwood's and the reward you offered by public advertisement was the chief subject.

            Question. Did you deny to Underwood having any knowledge of this business of the tobacco or knowing anything about it?

            Answer. I do not recollect I did and if he had I should not have answered him.

            Question. Did you not always suspect Baylis to be a worthless character?

            Answer. No. I did not.

            Question. Did not Wright, lately executed, frequently lodge at your house?

            Answer. No. He did not. He has been at my house but never laid in it in his life.

            [105] Question by the prisoner. Has not your house being frequently searched on suspicion of having stolen goods therein?

            Answer. Never but once and then no property was detected.

            James Lacy being duly sworn, premises that his evidence was obtained under the following circumstances and facing sound imputation as to his motives were coming forward, observes as follows. That he has been in the habit of intimacy with one McDonald a prisoner for debt in the gaol at Sydney. That he has frequently visited him and in the course of such access to the gaol Wright (executed for burglary) and Noble were committed. That Noble was admitted an evidence for the Crown. That Wright advised with this witness on his case. That under all the circumstances thereof, Noble being received as an approver Crown, Wright's well known character in the colony and other matters considered, he advised Wright to turn evidence and by impeachment save his own life. That the witness thereupon wrote a letter for him to Mr Balmain. That previous to such letters being sent the witness shewed it to Kable, the gaoloer, and by desire of Wright this witness informed Kable that Wright could discuss that perpetrators of Mrs Mullett's robbery and the receivers of the stolen property. That Kable paid little or no attention to this information, sometimes observing that he knew sufficient about it and at others that he wanted to hear no more of it. That Kable at length promised the witness that he would deliver their letter to Mr Balmain. That this transaction was on the day preceding the trial of the said Wright and in the afternoon thereof. That this witness hath since being informed by Mr Balmain that the said letter was not delivered to him until the next morning just about the time when said Wright was to take his trial at the criminal court (the said letter now produced and sworn to buy this witness (the day margin)). That the witness in repeated conversations he has had with Wright has been informed by him to the prisoner Nicholls having purchased a quantity of tobacco, the property of Mrs Mullett to him the said Wright. That in the one of these circumstances said Wright particularly exclaimed against Isaac Nicholls for not furnishing him with 40 shillings when he was in his debt to so great an amount current. That he should have gone to the Hawkesbury if he could have raised that sum and been out of danger. That he feared suspicion would fall upon him and therefore wanted to the out of the way. But this last mentioned conversation was after Wright had received sentence of death.

            Questions by the prisoner to the witness. Was any other person present when this confession came from Wright?

            Answer. Our business being of a private nature I believe not.

            Question. How do you get your living?

            Answer. By working on my trade as a taylor, and copying [mss].

            Question. Was you not ordered to stand under the pillory when the three men were exposed to public view that you hired to perjure themselves on the trial of Morris?

            Answer. I was ordered to stand there but I deny the confession of the crime or any implication of guilt on my part and conceived it an extra-judicial proceeding.

            Question. Did you ever give the three men the bills that you obtained to hire other men for the perjury?

            Answer. I have answered that question by the former.

            Question. Have you not been in the daily habit of calling on Bromfields in the gaol?

            Answer. Yes. By desire of Mr Balmain I attended the gaol but not particularly to visit Bromfield.

            Question. Why did you send to tea or coffee to Bromfield morning and evening repeatedly in the gaol?

            Answer. For the best of reasons. Merely because I thought he wanted it.

            Question. Have you not had an hatred to me since I called you to government employ by order of Captain Johnston?

            Answer. I never had any rancour against you either before or at the present time nor was I ever under a your authority.

            Henry Kable, being sworn, deposeth to the letter produced and sent by Wright through the witness to be delivered to Mr Balmain says he received said letter about nine o'clock on the day preceding Wright's trial. Admits that he did not deliver said letter to Mr Balmain until the next morning, the day on which Wright was tried and convicted. Says he intimated to Mr Balmain previous to Wright sending said letter that Wright had an intention of impeaching his accomplices and that McDonald, a prisoner for debt had told him to that effect, but that Mr Balmain shewed no inclination to admit said Wright on evidence. That he went twice to Mr Balmain's house the day he received the letter but as that gentleman was not at home he declined leaving it.

            Richard Broomfield being sworn deposeth that on the morning of the day before the execution of Wright he was walking in the gaol yard with him. That he was a prisoner himself and when Nicholls passed the gaol Wright exclaimed "there is the man that is the cause of my death and of my being here for had he paid me for the tobacco I should not have committed the crime I am now going to suffer for". That this witness asked Wright the reason that he had not been paid for his tobacco and Wright shewed that it was owing to his having been put in gaol. They he was released hence he should go to the place where the tobacco was concealed and be detected. That Nicholls' wife had however sent him (Wright) a private message that it would be unsafe for him to go after the tobacco as the constable's were set to watch it. That the witness asked Wright if he had even applied to Nicholls for money, and Wright observed that he wanted 40 shillings and applied for so small a sum as that amount was refused by Nicholls, although he told him at the time that he (Nicholls) would get him (Wright) a passage in the first ship that sailed for England. That Nicholls had however got possession of his property and then wanted to get him apprehended.

            Question by the court. What tobacco do you understand Wright alluded to in the conversation with you, and how do you know the prisoner had any thing to do with it?

            Answer. Wright said it was the tobacco he had stolen from Mrs Mullett and sold to Isaac Nicholls.

            Questions by the prisoner to this witness. Was Wright allowed to walk the gaol yard on the day before he suffered?

            Answer. He was walking in the yard even on the morning of his execution.

            Question. Was you in the habit of reading to Wright?

            Answer. Yes.

            Question. Do you know what quantity of tobacco Wright said he had delivered to me?

            Answer. No. Wright never informed me.

            [106] Question by the prisoner. Has Lacey been in the habit of calling upon you daily in gaol?

            Answer. Yes he has.

            Question. Did Lacey give you any instructions what to say on this trial?

            Answer. No.

            Question. Was any other person present when you were reading to Wright?

            Answer. Some of the prisoners who were in the gaol might be present.

            William Johnson (the executioner) being sworn deposeth that he attended Wright to the place of execution in a cart. That when they came up the hill in sight of Simeon Lord's house said Wright exclaimed "that is the house for which I am going to lose my life" and at the moment asked the witness for a drink of water. That he gave him Water to drink and the cart in the mean time turning round by the guard house Wright had a full view of Isaac Nicholls' house. That he fixed his eyes upon the house and exclaimed "Oh you wicked man, Isaac Nicholls. Had you paid me the money you owed me I should have left off my wicked ways and gone quietly out of the country." That the witness asked Wright how much money he might have due from Nicholls and Wright answered "upwards of ¿60". That the witness asked him what it was for. And Wright replied "for property" and further added that he went down to Nicholls for £20 one evening which Nicholls' wife refused him and said that Isaac Nicholls would have nothing to do with the tobacco. That he had sent it on the Rocks. That he (Wright replied) to Mrs Nicholls that he had ventured his life for the tobacco. It was his property and he would pair it. That he (Wright) then left her and some time after the same woman sent him the following message "Sam do not go near the tobacco for it is touted" (meaning "watched").

Question by the prisoner. Was any person present when the confession comes from Wright?

            Answer. Wass was in the court, sentenced to be flogged at the place of execution.

            At 3 o'clock p.m. the court adjourned until tomorrow at 10 a.m.

            Joseph Wass being duly sworn. Declares he was in too much trouble at the time to attend to or remember any conversation that passed between Wright and the Executioner.

            Hugh McDonald being duly sworn deposeth that being a prisoner for debt in the gaol he had frequent conversations with Wright and that Wright has frequently consulted with him on the subject of turning evidence that in consequence of such conversations he communicated Wright's wishes to Kable. That Kable answered said witness that Wright had no such intentions and only meant to baffle the magistrate. That Kable further advised it would be of no use to Wright to turn evidence for there was enough to substantiate the robbery and the parties implicated without him. That the conversation he alludes to passed between the witness and Wright the day before Wright was tried and convicted. That the witness perfectly well remembers a letter being delivered to Kable about 3 o'clock on the day before Wright was tried. That such letters was written by one Lacey and in the presence of each other given into Kable's hands. That Kable said he had been with it to Mr Balmain's but that Mr Balmain was not at home. That Kable faithfully promised to deliver the letter the same evening or next morning.

            Thomas Smith being duly sworn deposeth that on the day before the execution of Wright he was in Sydney and near the gaol he met with William Wright the brother of Samuel Wright. That he entered into conversation with him. That the witness recommends to said William Wright that as his brother was about to suffer it would be advisable for him to explain or confess under the gallows all the circumstances respecting Mrs Mullett's tobacco that had been sold to Isaac Nicholls. That said Wright replied he had asked his brother about it and his brother had declared that Nicholls had received some of it. That he (Samuel Wright) had actually delivered such tobacco himself to Isaac Nicholls and that at the time he delivered it Nicholls promised if he would call in an hours time he would pay for it. That he did call accordingly and then Nicholls said he would have nothing to do with it for that he had concealed it in the bushes and would go and show him where it was. That there were constables about the spot ready to apprehend him if he had gone.

            Questions by prisoner. Did William Wright observe to the witness when this happened?

            Answer. No.

            Question. How long have you left Joseph Taylor's house?

            Answer. Fourteen weeks next Sunday.

            Question. How long did you lodge at Taylor 's house?

            Answer. From the time of the Barwell arriving here until I entered into Captain McArthur's service.

            Question. Have you had any conversation with Joseph Taylor lately?

            Answer. Yes.

            Question. Was any person present at the time you had the conversation with William Wright which you have given in evidence?

            Answer. Nobody.

            Captain John McArthur being duly sworn deposeth that the last witness is his servant. That he informed him on the evening preceding Wright's execution that in a few days a circumstance would transpire that would astonish him. That on this witness closely interrogating the said Smith as to the nature of it said Smith replied that Samuel Wright would confess at the gallows that he had been concerned in Captain Wilkinson's robbery and that Isaac Nicholls had received or agreed to receive a part of the tobacco which had been stolen from Mrs Mullet when the burglary was committed in her warehouse.

            William Balmain esq. being duly sworn deposeth that Henry Kable informed him the prisoner Nicholls had told Kable where the tobacco was concealed and expressed himself obliged to Nicholls for his communication. That in a communication with said Kable the said Kable informed him that as gaoler he reported Samuel Wright as a hardened man from whom he could extort no confession.

            Prisoner has no question to propose to this witness.

            The evidence for prosecution closed.

[107] Prisoner's defence.

          The Warrant of Commitment charges me with having received stolen goods knowing them to be stolen and suspecting me of fraudulently concealing removing and conveying away certain property of tobacco known the same to be stolen. On the back of this commitment I am charged with being an accessory before and after fact. As to three of the indictments I consider them a mere matter of form, and as to the fourth I am so conscious of my innocence that I conceived it unnecessary to object to its relevancy. The pitiful set of evidence adduced in support of this prosecution as no doubt impressed the minds of this truly respectable court in what disgustful manner the prosecution has originated.

            The wretched character Baylis so glaringly prevaricated in his evidence that did I not forbear giving trouble to the court I would have insisted for his being committed and tried on that head, but he is so notorious and such a wretched character that I suppose the honorable court will consider his evidence as false framed and maliciously invented and that no attention whatever will be paid to it. You, gentlemen of the jury, call to your recollection the position in which he stood. How totally unprepared he stood to my questions and how evident it must appear to you from his declaration that he is at heart a villain. Positively his looks sufficiently proves him to be what he is - a most consummate and a most wretched being. Advert to his evidence. Look at his palpable prevarications and say as God directs your conscience whether or not he's testimony is worthy of any of the least credit and will you take upon yourself to say that he has not in several instances being guilty of perjury. He appears to be of that description and indeed his conduct proves him to be a being who for the lure of one shilling would sacrifice his soul, was it at his command. It is not long ago since he was tried for robbing Miller the baker and was he to disclose to you the robberies he has committed it would readily convince you what he is but I consider him too trifling for notice.

            James Lacey, if any difference appears 'twixt this and the wretch above mentioned, it is this. Lacey has sense enough to be too great a rogue without a tutor and Baylis is not. He is only guided by others. Lacey is too notorious a character to escape public notice. He was sent to Norfolk during the time of Governor Phillip and from some of his illicit practices there, the Governor of that island caused him to be extended in the form of a spread eagle against some post or railing with an iron collar round his neck and an inscription of label affixed to his back injoining the public not to converse with or have any communication with him, and he admits his standing under the pillory here, but denies that there was any authority for being there. The Provost Marshal can prove the authority he had to cause him stand. This witness mentioned my having an [assignment] current with Wright. How false! But it is the hearsay evidence of Lacey which can have no effect. There is not a word from any other witness to confirm it with him being a most dangerous character and that under pain of corporal punishment. He has since stood under the pillory at Sydney whilst three men namely, Luke Norminton, William Osborne and John Colly stood in the pillory exposed to public view for giving false evidence on the trial of Morrison to which they say were bribed by Lacey. He received from Morris two bills to pay these unfortunate men. But he did not find it convenient to part with it and how far his or his or their evidence is admissible let this honorable court determine. It is a fact not to be denied that he is a person wholly addicted to gambling, that he thereby gains a livelihood with the few pitiful pence he receives from the gaol prisoners the state in their grievances.

            Richard Bromfield. This is a person who was under my direction in government employ and who I detected in stealing corn from government stock yard and upon his being so detected has struck me repeatedly and had it not been for the interference of Mr Laycock and Lieutenant Major Jamison he would have deprived me of my life. He has since declared that had it not been for them he would have taken care that Nicholls should never detect another stealing corn. That revenge was swift and if he had its not then he would in a few days. And since my confinement Lacey is constantly attending him in gaol polishing his memory.

            William Johnston. This exemplary character, the hangman, I need not say much about him. I flatter myself it is the first instance ever known of a common executioner being admitted evidence. He humbly apprehends it is inconsistent with the laws of England. But let this honorable jury give their determination. No doubt this hero will exult in the idea that I may fall into his hands. Some weeks ago Kable and myself detected two men carrying corn from the house of Johnston to that of Mrs Mulletts which they told us they were to exchange for liquor the quantity of corn they then had might be about six or seven bushels which together with Johnston and the two other men were taken to the Judge Advocate's office who ordered the corn to be returned to government stock and one of the men to be punished and I have no reason to doubt that Johnston would have been also punished could any other person be found to exercise his office.

            Joseph Taylor. A painter and glazier. This is a character always suspected of the most atrocious crimes and the constables have frequent occasions to search his house for stolen property. His house is of the worst fame. Samuel Wright who lately died, as also this Baylis frequently lodged at his house. So a tree is to be known by its fruit. Taylor is a man for life and no doubt will go any length to procure friends to extricate himself from that dilemma. Is it consistent with reason that I would entrust this man with any secrets. That I would disclose my mind to him in the street. A man with whom I had no intimacy. No. But he is come forward with the glaring evidence you have heard to exculpate himself and his associate Baylis, but no doubt the aim of justice will soon overtake them.

            Gentlemen of the jury,

            I will comment but little on the evidence which has been adduced for the prosecution. I cannot hesitate to assert that a prosecution so pregnant with malice, cruelty and oppression never was set on foot. The most minute investigation has taken place, yet I flatter myself all the shifts of envy, all the darts of malice cannot stain my reputation which has for years remained totally untarnished.

            I have called on his Excellency Governor Hunter whose testimony is to me the most pleasing. To you it must [108] be conclusive and satisfactory. It must appear to you as a bright star shining and accompanying truth and honor. Can you for a moment hesitate to pronounce me an innocent victim to the cruelty and oppression of party rage. But let domineering cease. His Excellency Governor Hunter still lives to crush oppression and its venomous rootes. He is the fountain of mercy and spring of justice. I am his servant yet he has condescended to send me a written character to this court of my conduct as overseer.

            To confirm it, I afterwards adduced to you the character sent by George Johnston esq. his Excellency's Aid de Camp, and is it to be supposed that was I the guilty person to you represented that I could elude the vigilance of his Excellency, his Aid de Camp and others under them. Yet of what am I accused and where is my prosecutor? Some tobacco has been stolen from a Mrs Mullett. She found the greatest part of it if not all and how many have been accused of the theft. Yet there was no circumstance that appeared favourable for the prosecution against them and I who never saw the property must be thrust into gaol and brought to a criminal court... and why? Because I was industrious. I was persevering and I was fortunate. Yet to be prosperous seems not to be fortunate. It has brought upon me unknown and undeserved enemies. It has robbed me of my peace of mind. It has brought on my family sorrow and distress. But my consolation is great. My conscience can not reproach me with having acted wrong. I dread not the scorn and the derision of the public. The venomous tongue of slander can not rob me of that consolation with which innocence shields me. I appeal to you, gentlemen of the jury, to represent my character and to weigh it within yourselves. My appeal is public. Let not its reply be private.

            But observe, gentlemen, how craftily I am debarred of the evidence of Valentine Wood. He was my servant and for that reason he must be included in the prosecution.

            You will have observed in the course of this trial that all the evidence against me are not only persons of the worst character in the colony but people who have supposed themselves injured by me to whom they say revenge is sweet and there is no doubt they would not let any opportunity pass to do me an injury. The situation I held under government placed me above doing any mean action or burning a receiver. To risk my character and perhaps my life on such an occasion cannot admit of a thought. As to Bromfield and Lacey's hearsay evidence it is scarcely worth troubling the court about unless it is to impress upon the minds of the jury that they come forward maliciously and with an intent to convict me of a crime I never committed.

            Let us next attend to the evidence of Mrs Mullett. She swears most positively that all the Brazil tobacco is hers. But if two or three more roles were added to her number it is possible she could swear to which was hers? Could she distinguish her own from the other? No. It is impossible.

            The evidence of Wood could have been quite sufficient to overthrow all had he not been included in the prosecution as an accomplice. I trust his character is what he always has been since in my service his honesty is great and if it was necessary he might have a number to establish his character and men of respectability

            Consider, gentlemen of the jury, how this prosecution commenced. A warrant was granted against my wife who lay on a sick bed and would have been actually committed and my property exposed to the rapacity of every villain in the colony had not the surgeon upon oath declared her unable to move out of bed.

            Gentlemen when you consider that it was but the other day that Lacey was guilty of subornation of perjury it can be but of little consequence what he says. Some time ago I had Captain Johnston's orders to send the man to work. I often called upon him for this purpose, but never could get him to attend, at last I threatened to put him in the iron hulk if he did not attend. For that causes him to come forward and a man who is guilty of hiring others to perjure themselves while not be nice in doing it himself.

            Baylis says he wheeled a basket of tobacco to my house, that I received it from him and ordered it into a back room. Remember, gentlemen, the character of this man. He was tried the other day for housebreaking. He confesses himself a notorious thief by being concerned with Wright in this business. When he was first taken up he denied knowing anything but when threatened with heavy irons and to be stapled down to the floor he thought to invent this story would save him. And it is evident he would not be scrupulous of perjury. It is evident he has already done so. You, honorable gentlemen of the jury, will give his testimony what credit you think it deserves and that in my opinion is none, But.

            Lancashire proves that at 7 o'clock in the morning he was at my house making some bags and he heard my man call me and take me that about 5 o'clock that morning two men called and desired to leave a bag for the passage boat. That he told them to carry it to the next door, not Miller's, who kept a house for such purposes, that he had since heard that Mrs Mullett was robbed of some tobacco and it struck him that the bag, which these men were wanted to bear contained some of it. On my asking him the appearance of the men and where they work you told me that one of them with a blue jacket took the bag upon his shoulder and went towards Mr Balmain's. Lancashire also proves that I sent him for Kable to against him with this circumstance.

            Kable proves that he was sent for by Nicholls about 7 or 8 o'clock in the morning and told him the whole business. Gentlemen, it is not my wish to give you trouble. My conscience tells me that I am accused most unjustly, most wantonly and most cruelly. You are judges of the law and ... where is the evidence to bring home guilt to me? No, gentlemen, I can appeal to the all seeing God to testify my innocence and the rectitude of my conduct commands me to say that I am brought to this bar charged with a crime I never committed.

            I am arraigned at this bar charged with four several indictments, and what are they? You have seen them. You have read them. I did not conceive it necessary to enter into any defence as to three of those indictments and as to the fourth the proof adduced on my part can not but be satisfactory and end in my acquittal.

            Gentlemen I hope this day will crown my wishes. I have anxiously looked forward for it, for an investigation of my conduct since I have been in the colony. Who has come forward to charge me with any other crime, nay, with another fault. None. My innocence seemed to brighten as the different witnesses gave their testimony against me. You, gentlemen of the jury, have too much penetration not to discover the origin of this malicious prosecution. To your determination the whole is left and, gentlemen, let me assure you that much determination whether in my acquittal or condemnation cannot dismay me. God, before whom all must appear, knows my most secret thoughts. He knows I am innocent and was I led from the bar to the scaffold I would go with the same serenity of mind. To you, gentlemen of the jury, under the direction of God, whose oath is binding on your conscience, I commit myself. Your verdict I doubt not will acquit me to the satisfaction of the world.

[109] The prisoner requested that the basket of tobacco might be identified.

            Mary Mullett (the prosecutrix) interrogated by the prisoner. Question. Can you distinguish one roll of tobacco?

            Answer. No further than as is informed by the constables and others who recovered the stolen tobacco generally.

            (Six baskets produced.)

            Question. Was there no other Brazil tobacco by yours?

            Answer. I have sworn to the several baskets now, produced.

            William John Lancashire (admitted an evidence).

            Question. Do you recollect being in the prisoner's house the morning it was reported Mrs Mullett had been robbed?

            Answer. I do.

            Question. Do you recollect any particular information the prisoner received that morning?

            Answer. I went to Nicholls' house on the Sunday morning when his servant came about 6 or 7 o'clock and informed his master (the prisoner) that two men had been early that morning at his house. One of them had a blue jacket on and wanted to leave a bag with something in it. That the servant had answered them nothing must be left there, but if they would take it to Miller's (which was a warehouse) he supposed they might leave it there. That the man in the blue jacket then took the bag and went out at the gate toward the hospital. That the other man went out at the other gate. That as he (the servant) had just heard of Mrs Mullett's robbery and recollecting the confession the two men were in he (the said servant) it occurred to him that men who came in the morning had some of the stolen property in their bag. That the prisoner thereupon desired the witness to go to Kable and desire him to come to the prison. That the witness accordingly went with said messages, and the next day heard Kable had found some of the tobacco.

            By the prisoner, question. At that time had you done marking the bags you were employed about for me when I sent you for Kable?

            Answer. I had finished the whole of the bags and had no more business at your house that day.

            Hugh McDonald being duly sworn. Question. If Wright (lately executed) was confined in the same room with him in the gaol?

            Answer. Yes. After the gaol was burnt down he had liberty to be in his room after he was under sentence of death.

            Question. Who was in the habit of reading to Wright in prison?

            Answer. Samuel Sparks was, Turner his fellow prisoner and the witness on the morning of his execution.

            Question. Did you ever know Bromfield in the habit of reading to him?

            Answer. Never.

            Question. Was it possible Bromfield could have read to him (meaning Wright) without your knowledge?

            Answer. No. He could not unless on the morning of his execution when the witness was absent from his room for some time.

            Question. Have you ever observed Bromfield and Lacey in conversation together during my confinement?

            Answer. Yes and before your confinement.

            Question. Do you recollect Wright ordering the room to be closed on the morning of his execution that he might speak privately to his brother?

            Answer. I do. It was early in the morning and a room was cleared accordingly.

            Question. Were Wright and Bromfield in the back yard in conversation together the day before Wright suffered?

            Answer. He cannot particularly recollect. But to the best of his knowledge they were not.

            Question by the court. Do you take upon yourself to swear that Bromfield never did read to Wright during the time Wright was imprisoned with you?

            Answer. He did not, unless on the morning he suffered.

            Question. Did you never leave Wright in the room whilst in confinement and for what length of time might you be absent from Wright?

            Answer. Yes. He did leave the room occasionally, for ten minutes or a quarter of an hour at a time.

            Question. Did you not frequently converse and walk in the gaol yard with Turner, a prisoner, and during such conversation did you always particularly observe that Bromfield was not in company with Wright?

            Answer. Yes. I was in the habit of being in the yard with Turner. He thinks he might have been in the room, but believes he did not read to him.

            Question. Will you swear that you have not directly or indirectly had any conversation with any prisoner whatever about some seed wheat?

            Answer. No. Never with any person but Mr Hodgell.

            [110] Samuel Sparkes being sworn, interrogated by the prisoner. Question. Was you ever in the habit of reading to Wright in the gaol?

            Answer. Yes, frequently.

            Question. Did you ever know of Bromfield reading to Wright during confinement?

            Answer. Never while he was in the room with Wright.

            Question. Did you ever during the time of your imprisonment with Wright hear Wright name the prisoner?

            Answer. No, never.

            Question. Could Bromfield have read to Wright without your knowledge?

            Answer. At times I was out of the room and he might have done it.

            Question. Did you observe Bromfield and Lacey in conversation in the gaol lately?

            Answer. Yes. I have frequently seen them talking together.

            Question. Have you particularly observed that Lacey supplied Bromfield with necessaries in the gaol?

            Answer. I have frequently seen Lacey bring down tea and such things to Bromfield.

At 3 o'clock the court adjourned until tomorrow at 10 a.m.

            Friday morning 10 o'clock. The court met pursuant to adjournment.

            The prisoner Isaac Nichols proceeds on his defence and called the following witnesses:

            James Phelan one of the constables of Sydney being duly sworn, questions by the prisoner. Was you in conversation with Bromfield the day previous to my being committed?

            Answer. I was.

            Question. Relate the conversation that passed respecting me.

            Answer. Bromfield told the witness that nothing was so sweet as revenge and he hoped to have it soon and that if it had not been for the Sergeant Major he should not detect another person.

            By the court. Question. Did you at that time understand the expressions Bromfield made use of applied to the prisoner?

            Answer. Yes, I did.

            Question. What reason had you for so thinking?

            Answer. Because he knew there was a falling out between Bromfield and the prisoner some time before.

            Thomas Colley being duly sworn. By the prisoner. Question. Do you recollect when and where this conversation took place?

            Answer. In the gaol, two or three days after Bromfield had been punished.

            Question. Do you know who the person was that got Bromfield punished?

            Answer. No farther than the general report of the people. But it was for striking Isaac Nicholls.

            Joseph Wass sworn. Question. Did you hear Wright mention that prisoner's name when you were in the cart with him going to the place of execution?

            Answer. I did not!

            Question. Is it possible that the Executioner, Johnson, and the culprit, Wright, could converse together without you knowing what they said?

            Answer. It is impossible for me to say from the situation I was in, myself.

            John White sworn. Question. What length was the seat on which Johnson, Wright and Wass were seated when Wright was conveying to the place of execution?

            Answer. The breadth of the cart. About 3 feet 5 or 6 inches.

            William Wright, the brother of the deceased, being sworn. Question. Did your brother, Samuel Wright, make any will and testament in your favour?

            Answer. Yes (the will produced in court).

            Question. Did he ever mention to you that the prisoner was indebted to him or mention any debts in his will?

            Answer. He mentioned verbally to different debts due from William Harding, Thomas Acres, Jasper Harris and John Taylor to him.

            [111] Question. Did your deceased brother ever say to you that he brought a role of tobacco into the prisoner's yard?

            Answer. He declares to me that himself and Baylis had wheeled a basket of tobacco into Nicholls' yard until such time as two men went past whom they supposed to be constables. After which they wheeled the tobacco towards Captain Waterhouse's garden and concealed it amongst the rocks.

            By the court. Question. Did your brother ever mention the hours of wheeling the tobacco into Nicholls' yard?

            Answer. The hours I will not pretend to say, but he told me it was soon in the morning.

            Question. Did he tell you where he intended to convey the tobacco had they not seen the supposed constables or did you never ask him?

            Answer. No he did not. I never asked him.

            Question. Did he tell you how long the tobacco remained in Nicholls' yard and if he saw the prisoner or any person there at the time?

            Answer. No he did not.

            Question. How came your brother to mention to you that Nicholls did not owe him any money?

            Answer. They were in conversation about the will his brother was about to make and the witness asked him if Nicholls owed him anything. But his brother replied he did not owe him a halfpenny, neither had he any property from the deceased since he had been in the country.

            Question. Do you know Thomas Smith in evidence for the prosecution and servant to Captain McArthur?

            Answer. Yes. He does.

            Question. Had you ever any conversation with said Smith respecting the prisoner and what was such conversation. Relate to the court.

            Answer. The day before his brother suffered he was in conversation with Smith at Sydney, and Smith desired the witness to advise his brother to bring Nicholls to justice about the tobacco, who replied his brother had not told him any thing about it.

            Question. Relate to the court how the four debts due to your brother were contracted and from whom?

            Answer.

William Harding          £3                     knows not what for

James Harris                 £1.5.0               shirt and trousers

Thomas Akers              £1.10.0             3 bushells wheat

Jon Taylor                    £1.6.0               balance due for 6lbs of Brazil tobacco

James Underwood (sworn). By the prisoner. Question. Did Joseph Taylor glaze any windows for you lately?

            Answer. Yes.

            Question. Did you from the various reports in circulation about me, and knowing the intimacy between Baylis and Taylor think that Taylor could tell you something about them?

            Answer. Yes. He thought he might tell him something about it.

            Question. Did not Taylor observe at the same time that if Baylis knew any thing about it he would have communicated it to Taylor ?

            Answer. Taylor did tell the witness that Baylis had lived with him but was gone into the country. Moreover that Baylis was so soft and easy a fellow that if he had known anything about the tobacco he would have told him of it. The witness then observed to Taylor that he supposed there was nothing in it. And Taylor answered "no" and that Baylis never did tell him.

            By the court. Question. Had you any conversation with Taylor respecting an advertisement in which a reward was held out by the prisoner for a discovery of the person who had defamed his character?

            Answer. Not at that time.

            Question. Had you at any other time any conversation with Taylor respecting the advertisement before alluded to?

            Answer. Yes before he came to finish the windows, believes it might be three weeks last Tuesday.

            Rev. Richard Johnson sworn.             Question. Do you recollect attending Samuel Wright in the gaol whilst under sentence of death and on the day of his execution?

            Answer. Certainly, from his condemnation to the day of his execution and twice on the morning he was executed.

            Question. During these visits did Wright make any confession to you?

            Answer. Respecting his own guilt, but no other person's.

            Question. Did you on the day of his execution ask him if he had anything to say to you in the particular?

            Answer. Yes several times and on the morning of his execution, but he confessed nothing in particular.

            [112] Question. That during the time you visited him as a clergymen did he ever mention the prisoner's name to you?

            Answer. Never that the witness recollected.

            Charles Gardiner sworn, an overseer. Question. How long have you been in the habit of coming to my house as an overseer under me?

            Answer. About two years and a half.

            Question. Did you ever during that time see people of bad fame there such as Wright, Baylis, or men of that description?

            Answer. Never, to his knowledge.

            Question. Have you ever seen or known a dishonest act by me in that time?

            Answer. Nothing of the kind that he ever could discern.

            Question. Did you ever observe any riots, drunkenness, gambling or other disorderly conduct in my house?

            Answer. Never, nothing of the kind.

            By the court.

            Question. Had he not been in the habit of visiting the prisoner since he had been in confinement?

            Answer. I have, several times.

            Question. How long have you ever been with him in gaol at any one time?

            Answer. About a quarter of an hour or 20 minutes when I have been to take him his biscuits.

            Question. Who have you generally found in company with the prisoner on these visits?

            Answer. McDonald and his woman and Anne Wood, the prisoner's servants, were generally in his company.

            Question. Have you not frequently seen Kable or Lancashire in conversation with the prisoner at the gaol?

            Answer. He had seen Kable in the room with the prisoner. Does not recollect seeing Lancashire with him.

            Question. Have you not seen Kable and the prisoner drinking together in the gaol since the prisoner's confinement?

            Answer. Yes he has seen them drinking together.

            Question. Was Kable sitting or standing at such time and what other prisoner was present?

            Answer. He was sitting generally and the person he has before named present.

            Question. If in the habit of his calling at Nicholls' house, had such people as Baylis, Wright etc. frequented it, could they have been there without his seeing them?

            Answer. Not when he has called there as he had access to every part of the house and must have been there had such people been there at such time of his call for order.

            Question. Have you not during the two years and a half acquaintance with the prisoner been repeatedly about and at the Hawkesbury?

            Answer. Twice.

            Question. State the particular time you was last there?

            Answer. It was the 27th day of December last and he returned to Sydney on the 16th of February last.

            William Miller sworn. Question. During the time I have been a neighbour of yours have you ever known me keep a disorderly house?

            Answer. No.

            Question. Did you ever see Samuel Wright, lately executed, or any of his associates visit my house?

            Answer. No, he never did.

            Question. Did any servant of yours ever report to you that bad characters frequent to my house?

            Answer. Never!

            Question. During the time I have been your neighbour did you ever know a dishonest act by me?

            Answer. No, a very good neighbour.

            By the court. Question. From living so near the prisoner's house, had he been in the habit of harbouring bad people should not you have known it?

            Answer. He might have done so, that he never has seen it.

            Question. Are you in the habit of going in and out frequently to the prisoner's house, yard etc.?

            Answer. He generally sends his servant for any thing he may want there.

            Daniel Cubbitt sworn. Question. That during the time I have been a neighbour of yours did you ever know that I kept a bad or disorderly house?

            Answer. No, he never did.

            [113] Question by the prisoner. Have you not frequently been at my house during the time we have been neighbours?

            Answer. Yes, often.

            Question. Did you ever see the deceased Wright or his associates at my house?

            Answer. No. He never did.

            Question. During the time you have known me have you ever known any dishonest act by me whatever?

            Answer. No, not to his knowledge.

            By the court. Question. Can you take upon you to say that no person of bad character frequented the prisoner's house?

            Answer. I cannot say.

            Thomas Moore sworn. By the prisoner. Question. Have you not known me for a long time?

            Answer. I have.

            Question. Will you please to ascertain my character to the court as your neighbour?

            Answer. I have always found the prisoner in all the dealings I have had with him punctual.

            Question. Did you ever know any dishonest act by me?

            Answer. No, never did.

            By the court. Question. Had the prisoner kept a disorderly house must you not have known it by being so near a neighbour to him?

            Answer. I think I might but I never saw it.

            Thomas Smyth, the Provost Marshal, sworn, deposeth that he never heard any objection to the prisoner's character in general until the affair. Always thought him a sober honest man.

            The prisoner called no more witnesses.

            The Judge Advocate read two letters, one from Governor Hunter, the other from Captain Johnston, his Excellency's Aid de Camp of which the following copies vizt:

"Sir

Government house Sydney

13th March 1799

            Having this morning received a letter from Isaac Nicholls one of the prisoners now before the court in which he requests that I will lay before its members in writing my testimony of his general conduct as an overseer under such authority as I had thought proper to place him. In justice therefore to the man I have to declare to the court that during the whole time he has officiated as the Principal Overseer of the Town Gangs and such works as they were occasionally employed upon, he performed his duty with unremitted assiduity. His sobriety, diligence and constant attention to such orders as he has from time to time received from Captain Johnston by my direction was such as to give me the most perfect satisfaction and as I have had frequent occasion to send for him both early and late and to give him directions myself I can with truth and justice assure the court that I never found the duties of his station so well executed since I have been in the country. He has frequently saved me much trouble by his diligence and with respect to his honesty I never entertained the most distant suspicion of it.

            Should the court require my personal testimony as a stranger proof of the good opinion I have hitherto held of the above man I will most readily appear before it for that purpose.

I am sir, your most humble servant

John Hunter

To Richard Dore esq. Judge Advocate in court"

"Dear Sir,

            I was informed yesterday by the Provost Marshal that Isaac Nicholls meant to call upon me for a character, I have only to say that the near two years and a half that he was under my direction he always behaved with the utmost honesty, attention and sobriety.

            I am Sir, Your most obedient servant

            George Johnston

            If it is necessary for me to give the above evidence on oath I will thank you to let me know as soon as possible

            To Richard Dore - Judge Advocate"

Guilty....... sentenced to 14 years transportation to Norfolk Island and to work for government in the common gaol gang until the time of his embarkation.

Note

[1] Richard Dore's term as Judge Advocate, more than those of any of his predecessors or successors, highlights the subordinated position of the chief legal officer in a criminal court which was under military control through the presence of officers on its bench. There is no clearer example of this than the case of Isaac Nicholls. This trial left Dore open to wide criticism. Dore was not only accused of incompetence, but also, as C.H. Currey claims at p. 22, his judgment "had become warped by the influence of the military oligarchy".

Much of the evidence was hearsay and given by witnesses of a disputable character. Some commentators suggest that Nicholls earned the ire of the military "because of the efficiency with which he carried out his work" (see Castles, 55 citing C.H. Currey, 22). Evatt wrote in Rum Rebellion at p. 27 "that in the whole history of the British Empire has similar evidence - hearsay upon hearsay upon hearsay - never been admitted".

Nicholls was found guilty and sentenced to transportation to Norfolk Island for 14 years. After spending over three years in custody, Nicholls was finally pardoned. Governor Hunter, who by this time had returned to England, was enraged by Dore's handling of the case. The former Governor was influential in securing Nicholls' eventual pardon.

          The case begins by referring to previous evidence, but there is no archival record of it. See Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, State Records N.S.W., 5/1145, p. 53. See also C.H. Currey, Brothers Bent, 22-25; Castles, Australian Legal History, 55; Evatt, Rum Rebellion, chap. 6.

Published by the Division of Law, Macquarie University