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

R. v. Donnelly and Redmond [1827] NSWSupC 71

larceny, perjury, convict service

Supreme Court of New South Wales

Forbes C.J., 26 November 1827

Source: Australian, 28 November 1827

Patrick Donnelly and John Redmond, were put to the bar.[1 ]

FRANCIS LEVINTON examined.  I am by profession a bullock driver, (loud laughter.)  I am a government servant to Mr. Robert Dulhunty.  Sometime in the month of October or November last, I was sent, in company with a fellow servant, to purchase some wheat, at Mr. Johnston's Station, about six miles distant from my master's.  I took a tarpaulin in the cart with me; it was a large one, and nearly new.  Have heard it said, that the cost price of it in Sydney, was six guineas.  I arrived safe with my cart and the tarpaulin at Johnston's Station, and placed the bullock's harness and the tarpaulin in the government men's hut.  Prisoner Donnelly and a man named Graham were two government servants on the farm, and lived in this hut together.  I stayed at the hut for several days.  One evening on my return to the hut, I missed the tarpaulin.  That same evening the man Graham had been with me to one Marlow's a shoemaker, in the neighbourhood, where we had some spirits to drink.  I did not see Donnelly on my first going there.  I do not recollect whether Graham bid me go with him or not, he seemed to wish for me to go to Marlow's, which he left before me.  I do not recollect what he said on going out.  The tarpaulin, on my return back, was gone out of the hut.  Graham left about an hour before I did.  Neither Graham nor Donnelly were in the hut when I came back.  I did not see where Graham went to from Marlow's.  Graham did not return to the hut at any time during the night.  Prisoner Donnelly did a few minutes after me.  I took no particular notice of the tarpaulin.  There were no marks of identity on it.

Cross-examined. The hut is situated alongside of the government road. The entire of the bullocks' harness was deposited in the same place with the tarpaulin.  The bullocks' yokes might have been stolen at the same time with the tarpaulin.  Considers the tarpaulin was a sufficient burthen for any single man to carry.  There were some light portable articles in the hut, which might have been stolen, but these were of little value.  Was not invited by Graham to go with him to Marlow's.

WILLIAM GRAHAM, admitted an approver.  Knows the two prisoners.  Recollects the last witness coming to his master's farm with a cart for some wheat; this was nearly twelve months ago.  Saw him have a tarpaulin in his cart, which he left in the hut along with the bullock's trappings, &c.  He stayed there several days.  Witness had a conversation with the prisoner Donnelly respecting the tarpaulin.  It was agreed between them to steal and sell it.  Witness remarked, that perhaps they would be unable to meet with a customer for such a thing.  Donnelly replied that he would attend to that first.  A little time after this, he went out.  On his return he told witness, that Redmond said he would buy the tarpaulin, if the bullock driver, meaning the last witness, would be "strung" out of the hut, so as to have a safe opportunity of getting it.  About sun-set next evening, it was agreed that witness should take the bullock driver to Marlow's and treat him, whilst Donnelly undertook to carry off the tarpaulin.  This prisoner accordingly invited Levinton to go, which he agreed to do, and both left the hut together.  Whilst they were at Marlow's, Donnelly called witness out, and told him he had got the money for the tarpaulin.  Said he had sold it to John Redmond for six dollars, and produced a New South Wales Bank-note for the sum.  It was an old note, and had been pasted in several places where it had been torn.  Swears the name of John Redmond was about the lower part of the note.  Donnelly was away from the hut about two hours.  He saddled a mare belonging to his master, and rode off with the tarpaulin.  He was on the same animal when he called at Marlow's.

Cross-examined.  Donnelly was not long away when he went in search of a customer; he could not have been more than twenty minutes.  He had not had time enough to go to Redmond's Station, nor half that distance.  Swears it was a six dollar note.

MICHAEL POWER deposed that one afternoon, in the month of October or November last, he met the prisoner Donnelly on his master's farm, and was asked if he wanted to buy a tarpaulin.  Witness told him he did not, as he dealt in nothing but what had four legs.  He, however, referred him to two persons who had farms close by, as being most likely to become purchasers of such an article.  Donnelly made answer that White was a shuffler, but that Redmond was a good mark, and accordingly would take it there.

Cross-examined - Swears he never had any conversation with a person named White, living at Bathurst, relative to this trial.  Never said he would swear through an iron pot to convict Redmond, because none of the family had supplied him with money whilst in the gaol.  Never promised to give any  one 50l. to back his evidence.  The letter now produced is none of his hand writing, though it has been in his possession.  This letter was thrust into a prayer book belonging to him, when in the gaol.  He had it in his hand, and was about to read it, when it was taken from him.

Mr. JOHN BLACKMAN, chief constable at Bathurst, found the tarpaulin produced on Redmond's premises.

The case for the prosecution being closed, witnesses were examined on behalf of the prisoners.

The first witness deposed, that about the latter end of last year he was taken up by a constable and lodged in custody at Bathurst, upon a supposition that he could give some information against his master, the prisoner Redmond.  He was kept nine weeks in gaol, and seventeen days on bread and water.  A person named Webber, the clerk to the Bench of Magistrates at Bathurst, came into his cell, and asked him to speak the truth concerning his master, promising him his liberation from confinement if he did.  No one was allowed to speak to him, except the gaoler.  He was not allowed to go out of the cell to take fresh air. On the 26th of January last he was taken from his master by the Bench of Magistrates there, and returned into government employment, where he now is.  He was on Mr. Redmond's farm about this time last year; and for some months before.  Never saw any other tarpaulin but one - that he knows was brought on the farm from Sydney.

MICHAEL RODDY - Is a settler residing at Bathurst.  Prisoner, Redmond, and he have a hundred acre farm between them.  Last witness accompanied him from Sydney to Bathurst about eighteen months ago.  Took a tarpaulin home with them, which they got from Mr. Redmond, sen. in Sydney.  Witness frequently borrowed that tarpaulin from the prisoner.  It was the one whlch [sic] was taken by the Police.  Has lived on the farm full three years, and never saw any other one than it.

Mr. JACOB WHITE - Is also a settler at Bathurst.  Recollects having a conversation with the famous Michael Power on the 6th of November last.  Met him walking along the bank of the Fish River at Bathurst.  He spoke about the prisoner Redmond.  Said if any of the Redmond family had sent to him while in gaol he would never have done with them as he had.  Said he would take care that no man whom he took in hand should escape, and to accomplish this end would swear through an iron pot, and say any thing whatever, true or false, to get them convicted.  Witness knows part of the hand writing of a letter now shown him to be Power's.  Has frequently seen him write.  He would not in any wise believe Power on his oath, though he should not have scrupled, before he gave information respecting the cattle transactions.

Captain STEEL examined - Is governor of his Majesty's gaol at Sydney.  Knows the hand writing of Power.  Has seen him write whilst he was in the gaol, very often.  Often furnished him with paper to write on, and after he had finished, has taken up the writing and examined it.  The letter in his hand witness swears is partly in the hand writing of Power.  It was delivered up to him by Mr. Wilson, the gaoler.

HENRY MAROONEY deposed that he was in the Sydney gaol in the month of march last.  Michael Power and one Baldwin were in gaol at the same time.  Power was closely confined in a cell, and a sentry placed on the outside.  Had a conversation with Power one day as he happened to meet him coming out of his cell for exercise.  Had not seen him for four or five years before.  Power came up to him and said, "I'm better pleased to see you than 100l."  Witness made answer that it was not in his power to serve him, when Power replied, "yes you can, by conveying a letter from me to Baldwin," who was in the back yard of the prison. - He promised to give witness 10l. for his trouble, and 50l. to Baldwin, if he would comply with the terms of his note.  Witness told Power that the sentry was in the way, and might stop him. - Power made answer - "oh no, he's a countryman of mine, and he'll go on one side."  Power then wrote a note and put it into witness's hand, and then directly after taking it back again, said, "stay, I have another message."  [A note was here put into the witness's hands.]  A part of this is in witness's hand writing, and a part in Power's.  He said, tell Baldwin, if he will back my evidence against Redmond and Reilley I will give him 50l.  Witness then went into the back prison yard and saw Baldwin, to whom he delivered the message and the note from Power.  Baldwin could not read nor write, had witness read the note to him.  Baldwin then asked him if he knew Power.  Witness said yes, and Baldwin advised him to be careful what he did with him, for that he wanted him, Baldwin, to perjure himself.  Witness proposed to destroy the letter, when Baldwin said, "no, we will make use of it, to get money out of him," and added, "then it is not necessary that we should come to the mark after all."  The words in the note, "you will want for 50l." swears is Power's hand writing.  Understood from these words that Baldwin should not want for 50l.  This note was intercepted on witness's return to Power, on whose cell there was another sentry stationed, Power's countryman having been relieved.  Witness was observed by the sentry to give the note to Power, and took it from him.  It took witness about two-hours in performing the transactions alluded to.  He was punished for what he did on this occasion.  Had known Power four or five years ago, at which time witness was frequently in his company.

EDWARD BALDWIN confirmed the substance of the last witness's testimony.

Mr. WILSON, gaoler, stated, that about ten o'clock one morning, whilst Power was in close confinement in the Sydney gaol, the note now produced was taken from him.  Marooney, who acted as an assistant clerk in the gaol at that time, was seen to give Power the note.  His indulgence was taken from him on that account.  About an hour after he went into Power's cell, and spoke to him about the letter.  He at first denied having written it, but afterwards said, "I don't know whether it is my hand writing."  His conversation was an admission that that part of the letter was his. - Witness swears that part of the letter was written by Power, whom he has frequently seen write.  Recollected on the morning of this note being intercepted to have seen Marooney reading from a piece of paper to Baldwin, but took no notice of the circumstance.

MATTHEW MURRAY - Is in the employment of Mr. Christie, at Bathurst.  He has had a conversation with Power about Redmond.  He offered witness money to swear that six head of cattle, which he, Power, should select out of Redmond's herd, belonged to his master, and had been stolen from him.  Power said he had 200l. planted near Parramatta, and that this should be spent in providing them a passage to the Derwent, whether Power, said witness, could get to go, as by supporting his evidence the gentlemen would give him his liberty.  What Power wanted witness to say is untrue, as his master never lost any cattle.

This was the evidence for the prisoners.

The Chief Justice summed up at considerable length, and the Jury, without any hesitation, returned a verdict of Not Guilty.[2 ]

The Court, during the whole of this day, was crowded to excess.  It was considerably past seven o'clock when the Jury was discharged.

Notes

[1 ] This trial was also reported in the Monitor, 29 November 1827.  Wardell, Wentworth and Rowe acted for the defence.

[2 ] Power was subsequently committed to stand trial for perjury: Sydney Gazette, 10 December 1827.

Published by the Division of Law, Macquarie University