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

R. v. Wilkinson [1807] NSWKR 5; [1807] NSWSupC 5

convict escape, assisting

Court of Criminal Jurisdiction

Atkins J.A., 26 March 1807

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1801 -1808, State Records N.S.W, 5/1149

           [377] Proceedings of the Court of Criminal Judicature hold by Virtue of a Precept under the Hand and Seal of His Excellency William Bligh Esqr Capt General and Governor in Chief in and over H.M. Territory of New South Wales and its Dependencies &c &c &c

           The Judge Advocate

           Members:

Major George Johnston

Lieutenant John Bralyn

Ensign W Lawson

Lieutenant William Ellis

Lieutenant William Minchin

Ensign Drapper

           The Precept being read and Members Sworn John Wilkinson was placed at the Bar Vide Indictment No 1

           William Thorn a Constable being Sworn says, that on the twenty first of this Instant March, he with the Chief and three other Constables were sent on the Ship Star commanded by the Prisoner at the Bar for the purpose of searching the vessel for any prisoners that might be secreted with an intention of escaping from the Colony, that on going on board, he went between Decks, and desired that the Hatches of the hold might be unlocked, which was done by one of the Seamen that he then descended into that Hold and after having searched about for an hour and a half and removing a large quantity of [378] Billot wood, he observed some boards that was placed length ways and sloping, under which was a hollow place, on taking some of the Boards away he got in, and after some short time he discovered Thomas Shirley whom he brought on deck, says that considering the quantity of Billotwood that was on the boards it was impossible for the Prisoner to have got there without some assistance, says that Mr Wilkinson was not on board to his knowledge but he saw the Chief Officer, says that there was no hindrance whatever on his going up the hold.

           Question by Court: Did it appear to you that any of the Officers of the ship knew that a man was concealed in the Hold?

           Answer: Know it did not.

           Question by Prisoner: You took Thomas Shirley out of the ship?

           Answer: Yes I did.

           2: Was you present before the J.A. when Shirley was examined?

           Answer: Yes.

           3. Did not Shirley say upon such examinations that he swam to the ship and got on board and stowed himself away without the privity of any person ?

           Answer: He did.

           4. And did he not say that he so got on board the on the Friday Evening?

           Answer: I think he did

           Mr John Redman Chief Constable Sworn, says that [379] on the Saturday the 21st Instant himself with three other Constables went on board for the purpose of detecting any prisoners that might have secreted themselves on board that vessel. That he sent William Thorn and two others down for that purpose, that after they had been down the hold some considerable time and having removed a large quantity of wood one of them gave the alarm that they had found a man Deponent then went forwards to the Hatchway and stood over it whilst one of the Constables that had been sent to search come out, and immediately the other Constable came with the prisoner Shirley. That on going on board he told the Chief Officer (Wilkinson not being on board) what he came about and requested a light which was immediately given him and every other assistance he required.

           Question by Court: Did it appear to you that any of the officers of the ship know that a man was concealed in the Hold?

           Answer: No it did not.

           Question by Prisoner: You took Thomas Shirely out of the Ship?

           Answer: Yes.

           2: Was you present when Thomas Shirely was examined by the Judge Advocate

           [380] Answer: I was

           3: Did not Shirley say upon such examination that he swam to the Ship and got on board and stowed himself away without the privity of any person?

           Answer: He did

           4. And did he not say that he got so on board on the Friday Evening?

           Answer: Yes.

           5: Do you not recollect Mr Lord's asking Shirley to inform the J. A. who it was that stowed him away in the Ship. That they might be brought forward to justice and what was his answer?

Answer: Yes I do and Shirley said no person stowed him away nor knew of his being on board

           6: Did not Shirley further say that it would be a hard case to bring in an innocent man

           Answer: He did something to that effect.

           7: Relate what ships the prisoner was taken out before?

           Answer: I cannot speak particularly as to the Ship's name, but I think one was the Honduras this is the third time he has attempted to make his escape.

           8: And what was done to the Masters of these Ships?

           Answer: I do not know

           9: Were the Ships allowed to proceed on their voyages and the Masters on board?

           Answer: Yes the Honduras was heading out between the Heads when I left them.

           10: Do you know of any prosecution being extended against any of these Masters?

           Answer: None

           11: Was not the main hatches of the Star opened the time you went on board ?

           Answer: Her upper deck hatch was open.

           The trial of Thomas Shirley at the Criminal Court on the 25th June 1805 being produced it appears that he was sentenced to 7 years transportation.

           The Evidence on the part of the Crown being closed. The prisoner delivers in the Court the paper No 1 recd by the J.A. and called.

           Captain Putland Commander of H.M.S Porpoise being sworn the questions to this witness appearing to be irrelevant to the matter before them they were overruled.

           George Dowling Clerk to the Naval Officer being Sworn

           Question by Deponent: Have you or not been assisting or present when Ships have been searched for prisoners provisions to their leaving this Port whose prisoners have been found on board stowed away or how else ?

           Answer: I have

           2: Did you ever know any Ships detained in Port or the Master put into prison when prisoners had been found and taken out or how otherwise declare ?

           [381] Answer: I have never know the master put in prison but Ships have been detained on that account merely to make a second search.

           3: In the course of your practice as Clerk to the N.O did you ever know a Captain bought to a Criminal Court for trial for prisoners found on board his Ship stowed away without his knowledge saing the present case?

           Answer: No.

           John Harris Esq N.O Have you or not as N.O been present when Ships previous to their leaving this Port in cases where prisoners have been found on board stowed away or how else?

           Answer: Frequently

 

2: Did you ever know in any case before the present the Ship detained in port on that occasion?

           Answer: Not to my recollection I have known Ships detained some short time for the purpose of searching the Ship the second time.

           3: Did you ever know a Master of such Ships put in prison or orders for a Court Prosecution when prisoners had been found and taken out and if you have name the Vessel and [?] Commander so treated (if any) and what was the result of such prosecution (if any)

           Answer: I never recollect a circumstance of the kind I have taken prisoners out of almost every Ship even H.M. Ships , but never brought the [382] Commanders of any of them to Prison but the prisoners were put into Jail and they were reported to the Governor.

           4: When you inform me you had reason to suspect there were prisoners stowed away in my Ship what was my reply?

           Answer: On the morning previous to Mr Wilkinsons getting his clearance he applied to me to have the reason why he could not have it I informed him that I had not got the names from the Governors office but as soon as I did there should be no detention on my part, that as Police Magistrate I begged to tell him that there were several prisoners missing and of which I had returns of and I had every reason to suspect that some of them were secreted on board the Star. Captain W. replied to me I hope in God Dr Harris you will take the necessary measures to find out those d__d villains for not a d __ d rascal of them shall go in my ship if I can prevent it and I give you my word that if I find any on board after I leave this Port if I am two days sail from the port I will return with them. I can get [?] sailors enough without taking thieves as you represent them and prisoners.

           James Russell 2d mate of Ship Star Sworn:

           [383] Question by Prisoner: You are an Officer on board the Star do you know how Thomas Shirley came on board ?

           Answer: I do not

           2: Do you believe it to be with the privity knowledge or consent of the Captain or any Officer on board that Ship ?

           Answer: I do not.

           Question: Can you account why the boards was stored away in the Ships hold and has long before had they been put there declare all you know with your reasons at large ?

           Answer: The Boards were stored there about a fortnight ago to give more room to stowe the fire wood away ?

           Peter Ferguson Carpenter Sworn

           Question by Prisoner: The same as the proceeding

           Answer: I do not.

           2: The same

           Answer: I believe not

           3: The same

           Answer: To make more room for the firewood

           The Court is unanimous by of opinion that the Prisoner was not aiding and assisting or in any manner was it with his privity that Thomas Shirley got on board do therefore acquit him.

Published by the Division of Law, Macquarie University