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

R. v. Gore [1808] NSWKR 2; [1808] NSWSupC 2

Bligh, Governor, rebellion against - perjury - Provost Marshal - courts, legality of in rebel period

Court of Criminal Jurisdiction
Grimes A.J.A., 21 March 1808
Kemp A.J.A., 30 May 1808
Source: Historical Records of Australia, Series 1, Vol. 6, pp 214, 235, 535-536, 560-563, 629 [1]

[214] ... ( Trial and imprisonment of Gore.)

Mr Gore, the Provost Marshal, has also been brought before another Court of Criminal Judicature, charged with wilful and corrupt perjury, but, having objected to one of the members, on the plea of his being prejudiced against him, the court admitted the objection; and, as he thought proper to refuse giving bail to appear before another court, he was committed to gaol until he does give bail, or until a court can be found in which there shall be no member to whom he has any objections...

(Enclosure No.3)

[235] ... (Gore charged with perjury by members of the criminal court):

Memorandum by the members of the Court of Criminal Judicature, made the 26th January 1808.

It appearing to the Court of Criminal Judicature now sitting under authority of his Excellency the Governor's Precept, bearing date the 25 instant January, that a prisoner yesterday brought to the bar, and remanded to his former bail, has since that been committed to the common gaol of Sydney, forced out of the hands of his sureties by a warrant from the Bench of Magistrates, founded on a deposition made before said bench by Mr William Gore, Provost Marshal, "That the prisoner (John Macarthur, esq.) was at large, and escaped out of his custody contrary to law." We therefore think it a justice due to the prisoner to declare that the deposition so made by Mr William Gore is false and ill founded and that every legal step will be resorted to by the court to bring the offender to justice.

           We are, etc.,

A.F. Kemp, Captain N.S.W. Corps

J Brabyn, Lieutenant N.S.W. Corps

William Moore, Lieutenant

Thomas Laycock, Lieutenant

William Minchin, Lieutenant

William Lawson, Lieutenant

 

Source: Bligh to Castlereagh, 30 June 1808, Historical Records of Australia , series 1, vol. 6

 

[535] (Gore imprisoned by Macarthur on a charge of perjury.)

...[O]n of the night of the 25th of January, Mr William Gore, the Provost Marshal, made oath that Macarthur was out of his custody. It was in consequence of a pretence of this oath being false that he was ordered to gaol by Macarthur on the night of the 26th. As this was done without any examination before a Bench of their Justices or committal, he was afterwards liberated, and on the 1st of March was summoned before Mr Jamison, Principal Surgeon, and John Blaxland, settler, who committed him to be tried by a criminal court for wilful and corrupt perjury. He gave bail, and on the 21st of March was brought before their court, consisting of Charles Grimes (Judge Advocate), James Symons (Acting Lieutenant and self created Acting Commander of the Porpoise ), Captain Edward Abbott, Acting Second Lieutenant William Ellison of the Porpoise , Lieutenant William Moore, [536] Lieutenant Thomas Laycock, and Lieutenant Cadwallader Draffin, when he denied their authority as being convened by the Precept of Major Johnston, who could have no authority to issue a Precept without the death or absence of the Governor. They then put off his trial, but as he knew the charge was groundless, and that they only wished to harass him by it, he would not again give bail. On this they committed him to a cell of the common gaol, from whence many an unfortunate creature had been dragged to the gallows. Here he lay until the 30th of May and then, without giving him any previous notice to summons his witnesses, as they had done before, they suddenly brought him to their court house, which was a military barrack. After some time the court met, consisting of Captain Anthony Kemp (their Judge Advocate), William Kent (Acting Commander of the Porpoise ), Captain Edward Abbott, Lieutenant William Moore, Lieutenant Thomas Laycock, Lieutenant William Lawson, and Lieutenant Cadwallader Draffin, all of the New South Wales Corps. The Judge Advocate read the indictment. Mr Gore denied their authority and refused to plead. The court was then cleared, and on its reopening their Judge Advocate pronounced sentence, transportation for seven years, and he was sent to the Coal River at Newcastle on the evening of the 4th of June, the anniversary of the birth of our Most Gracious King, leaving behind him his affectionate wife and four fine children, the eldest of whom is about eight years of age, wholly dependent on his friends for support. Thus they have treated a loyal officer of the Crown who had always done his duty with attention and great humanity.

           ...For the farther illustration of this outrageous act, I recommend to your Lordship's particular attention the inclosed copy of Mr Gore's protest on the 27th of March, and of the defence he intended to have made on that day had they proceeded on his trial, together with copies of his letters to me of the 31st of May and 2nd of June....

[560] ... (Enclosure no. 13)

[A] Provost Marshal Gore to Governor Bligh

Cells, Sydney Jail, N.S.W., 31st May 1808.

Sir,

I presume you have already been informed of the additional unprecedented outrage and atrocious violation of the laws of England, that a body of persons styling themselves a Court of Criminal Jurisdiction has perpetrated against the person of a British subject and of a British officer who has the honor of holding a commission under his Majesty's Sign Manual, by dragging me yesterday from the dungeon in which they have cruelly and illegally immured me since the 21st of last March, before them, without the least warning, without a minute's notice, when the infamous Kemp, who acted as Judge Advocate on the occasion, read an indictment charging me with having committed wilful and corrupt perjury, and asked me, "Are you guilty or not guilty?" "I have a few observations to make. I believe I have them in my hat." "We do not wish you to say anything. We do not wish you to speak. Are you guilty or not guilty?" "I deny your jurisdiction." "We are not to be harangued by you, Mr Gore. We are not come here for you to harangue us." "I will not plead. I deny your jurisdiction." "It is not for you to deny our jurisdiction. I will pass sentence on you if you will not plead." "You are an unlawful assembly, and illegally constituted. The most disgraceful, the most rigorous sentence you can pronounce on me I shall receive as the greatest honor you can confer on me. I shall not [561] acknowledge your authority; I deny your jurisdiction." Captain Abbott: "Mr Gore, you can challenge any member. You can challenge any member." "No, possessing my fealty and my allegiance to my King, I deny your jurisdiction. I will not plead, for you are an unlawful assembly." Captain Kemp: "Clear the court. Clear the court." The court having been opened again, after a lapse of about 20 minutes, Kemp said: "We have recorded that you have refused to plead." "I have. I do." "And we have sentenced you to be transported for seven years." "You have conferred on me the greatest honor you are capable of conferring, the only honor I could receive from such men. Loyalty and treason could not unite. Treason and loyalty could not associate, could not agree." Kemp: "Take him away, take him off; take him away, take him away."...

[562] ... [B] Provost Marshal Gore to Governor Bligh

Cells, Sydney Jail, N.S.W., 2nd June, 1808.

Sir,

           From the agitation my mind has undergone, I inadvertently omitted, in my letter of the 31st of May, to tell you that, when I was taken by four constables from the cell in which I am incarcerated, on Monday the 30th of May. I was conducted by them to the military barracks (it was then precisely 25 minutes after 12 o'clock), where I was ordered to be kept until 2 o'clock (the court, as I was informed, being adjourned to that hour) as a show and spectacle for the derision and amusement of the soldiers, one constable keeping constantly by my side on the parade, and the Chief Constable occasionally attending and walking on the other side whenever he observed Macarthur approaching to and coming on the parade.

           The barrack being at length opened, which they called the court house, and the persons assembled who were to compose the court, it is now, sir, for you to judge how great must have been my surprise on seeing the identical Captain Kemp presiding as Judge Advocate who, on the 25th of last January, acted so conspicuous a part by threatening to commit his Majesty's Judge Advocate to jail, and who at length turned him out of court. The very Monster who volunteered as a witness to swear, before Jamison and Blaxland, two of his self-created fellow Justices, that I was guilty of the pretended crime (for which he was actually sitting in judgment on me), with which the traitor, Macarthur, had charged me. For Kemp had sworn, on the first of March, before the above two persons, that "I heard him tell me that the court would return Macarthur to his former bail, as I bowed to him at the time of his telling me so."

           Lieutenants Moore, Laycock and Lawson, who had likewise been subpoenaed as witnesses against me in this cause, and Captain [563] Abbott also, who allowed the validity of a challenge I made to him on the 21st of March, in this very cause, too, were all members of the court; or, rather, of this traitorous assembly. They, of course, prejudged me, for they had long before declared themselves ready to swear to my guilt. This base stratagem was artfully planned by them, in order to discredit my testimony hereafter, by levelling (what they imagine) a fatal blow against my reputation. But, although I must suffer great hardship by their barefaced violation of all the rules of justice and decorum, they have, however, fallen themselves into the pit they dug for me. For, in fact, they had no intention of trying me on the 30th of May. They were fully satisfied of the too palpable injustice of keeping me locked up in a dungeon, and they saw that the public began to observe it, and to express themselves freely on the subject. Notwithstanding which they considered it prudent to continue me in prison with so infamous a charge hanging over me. But, in proportion as their preconcerted injustice appeared more evident, they became more solicitous to remove from themselves the blame and odium of my confinement on so false a charge by making a show and a deluding display of their moderation and affected clemency in granting and acquiescing in the propriety of the challenges which, in the vanity and folly of their hearts, they flattered themselves I would make; and, had I fallen into their snare, there not being any other officers in the country who could try me, they would then propose to me to give bail, and, on my refusal, they would have re-committed me to gaol. Thus the purpose of their iniquitous designs would, in a great measure, have been effected. However, as my seclusion from society within the walls of a prison had not as yet broken down my spirit, nor the power with which they had so traitorously invested themselves had intimidated me, their project, deep and artfully laid as it had been, was frustrated, and by my denial of their jurisdiction, they have been precipitated into the perpetration of the foulest and most flagitious enormity and offence against the laws of the realm and the rights and liberty of the subject. And their having debarred me the indulgence of offering a few observations to them precludes them from the suspicion even of intended impartiality, and stamps their injustice with the rankest inconsistency.

I have, etc.,

William Gore...

 

Source: Foveaux to Castlereagh, 4 September, 1808, Historical Records of Australia , series 1, vol. 6

 

[629] ...At the first criminal court which assembled after Captain Kemp's appointment, Mr Gore, the suspended Provost Marshal, was, in the ordinary course of business, brought up for [trial] on a charge of perjury preferred against him by the officers of the court accused by Governor Bligh of treasonable practices (the particulars of which have been detailed to your Lordship in Major Johnston's letter of the 11th of April last).

           Mr Gore having contumaciously disputed the legality of the court, and refused to plead to the indictment, there remained no alternative but to pass the sentence of the law upon him, which was that he should be transported for the term of seven years, in consequence of which he was sent to the Coal River by Major Johnston...

Note

[1] The prosecution of Gore occurred before two acting Judge Advocates of the rebel Court of Criminal Jurisdiction, Grimes on 21 March 1808 and subsequently Kemp (who replaced Grimes and was the chief witness against Gore at first instance) on 30 May 1808. The rebel courts were legal in form but not in substance, due to the unlawful disposal of Governor Bligh and Judge Advocate Atkins.

In some respects, the attempt to prosecute Gore on a false charge of perjury resembles the prosecution of Isaac Nicholls in 1799 (R. v. Nicholls, 1799). Evatt suggests at pp 74-75 that, like Nicholls, Gore was faithfully carrying out Governor Bligh's policy. In addition, Evatt at p. 75 characterises Gore, like Nicholls, as "a very efficient chief of the constabulary... an honest, as well as a courageous man". However, other commentators, as well as Gore's contemporaries, have held contrasting views of Gore. King, for example, suggests that Gore was often described as "odious" and that in 1807 Deputy Commissary Fitz described him as "the principal source of the present dissensions".

Both charges against Gore broke down in court. Evatt comments at p. 183:

"Judged from a legal angle, the treatment of Gore was perfectly outrageous. He was committed although there was no corroboration of the evidence of Kemp to the effect that he had informed Gore that Macarthur had been remitted to his former bail. Further, all the surrounding circumstances and the direct testimony of Griffin negatived Kemp's allegation. The documents were manipulated so as to afford some basis for the prosecution. Kemp was permitted to preside at the trial where, if Gore had pleaded not guilty, he would have been the chief witness."

Gore was restored to his office as Provost Marshal soon after the arrival of Governor Macquarie.

See Evatt, Rum Rebellion, 74-76,179-185; M. H. Ellis, John Macarthur, 2nd ed., Angus and Robertson, Sydney, 1967 ; H. King, "Gore, William (1765-1845)", Australian Dictionary of Biography, vol. 1, 459-460.

For other cases concerning the coup against Governor Bligh, see R. v. Macarthur, 1808; R. v. Sutter, 1808; Crossley v. Johnston and others, 1810.

Published by the Division of Law, Macquarie University