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

R. v. Bendall [1812] NSWKR 4; [1812] NSWSupC 4

convict escape, aiding

Court of Criminal Jurisdiction
Bent J.A., 19 February 1812
Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 5/1120[1]

[78] Mary Bendall charged by the Judge Advocate's information with unlawfully secreting Joseph Wilmot a prisoner whose term of transportation is yet unexpired, with intent to enable him to escape from the territory. To this charge the said Mary Bendall pleaded that she was not guilty.

           William Thorn sworn says I am a constable at Sydney. I am acquainted with Mary Bendall. She was a woman who used to live on Chapel Road and was going away on the ship Friends. I went on board the ship Friends on a Saturday in November at the latter end of that month with the Redmond Chief Constable, to see if there were any convicts settled on board the ship. I had information that Joseph Wilmot was on board the ship. Joseph Wilmot is a prisoner. We searched all parts of the ship. Mary Bendall was a passenger on board the ship Friends. She was there at the time. By the desire of the Chief Constable we searched her birth or cabin. It was in the steerage. She went down the steerage cabin with me and desired me to search her boxes. I went into her cabin with her and searched. I found Joseph Wilmot there. He was lying at the bottom of the cot, which was hung up and made and covered with a flowered counterpane. He was covered with the bed and blankets. I brought him out and took him in charge. Mary Bendall said she knew nothing about his being [79] there. The Chief Constable was on deck. The prisoner Wilmot was brought on shore by me. She herself came on shore on the Monday and said she would not go in the ship. The whole steerage was parted off for passengers. We found Wilmot in Mary Bendall's compartment. I do not know of any intercourse between the prisoner and Wilmot. I believe she always kept an orderly house. I should say again that Wilmot could not be concealed where I found him without the prisoner's knowledge.

           John Redmond Chief Constable sworn, says in consequence of information I received that Joseph Wilmot was concealed on board the Friends I directed a search to be made. He was found secreted on board that ship. He is a prisoner for life, and came on the Anne to this country in 1810. Mary Bendall was also a prisoner but lately got the pardon from his Excellency the Governor. I do not know that the prisoner and Wilmot live together. She came on shore voluntarily and declined going on the ship. There was some disagreement among the passengers. The prisoner denied knowing any thing of Wilmot being there. I cannot imagine that Wilmot could be concealed in the cot as he was without the prisoner's knowledge. Mary Bendall had been some days on board the ship. The ship was lying below Garden Island ready for sea. She sailed on the Monday following the Saturday he was discovered. The vessel was cleared out for Rio de Janeiro I believe. [80] The prisoner in her defence puts on a written statement of her case which is read in her behalf and calls Joseph Wilmot as witness.

           Joseph Wilmot sworn, says I am a prisoner for life I believe in this territory. I mean to say upon my oath that I have taken that the prisoner had no knowledge of my being secreted on her cot. The prisoner never advised or encouraged me to make my escape. I never lived with the prisoner. Two persons of the names of Kelly and Palmer, who were then assigned on board and on the same part of the ship as the prisoner, assisted and encouraged me to make my escape some time before they went on board the Friends. I was assisted to cover myself in the cot by the wife of Kelly. Mary Bendall's was the smallest birth. I went on board on Wednesday evening. I remained in Kelly's birth until Saturday and at the time the constables were alongside of the ship I got into Mary Bendall's cot. It was quite a sudden thought.

           The court having duly considered the evidence produced as well on behalf of the prosecution do on behalf of the prisoner at the bar do adjudge that the said Mary Bendall is not guilty of the misdemeanour wherewith she stands charged.

By the Court
Ellis Bent J.A.


[1] See also Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, State Records N.S.W., 5/1146, p. 453.

Published by the Division of Law, Macquarie University