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

R v Mossman and Welsh [1835] NSWSupC 1

convict escape, assisting - convict indents - convict, proof of conviction - deeds, proof of

Supreme Court of New South Wales

Forbes C.J., 2 February 1835

Source: Sydney Herald, 5 February 1835[1 ]

Before His Honor the Chief Justice, and a Jury of Inhabitants.

Adam Mossman and James Welsh, the former chief officer, and the latter a seaman of the whaling barque Juno, stood charged with aiding and assisting one John Wheeler, a convict under sentence of transportation for life, in an attempt to leave the Colony.

The Attorney General in opening the case to the jury, directed their attention to the great importance of the offence charged against the defendants, which was manifested on the very heavy penalty which the local legislature had considered it necessary to attach thereto; the serious evils to public justice resulting from holding out encouragement to Convicts to escape from lawful restraint would be obvious, and they were called upon to judge whether the defendants were guilty of the offence charged or not. 

Thomas Ryan. - I am Chief Clerk in the Principal Superintendent of Convicts office; I have examined the records of the of the Colonial Secretary's office; I produce an extract from the original indents of the Convict transport ship General Stuart, which arrived in the Colony on the 31st December, 1818, and I find the name of John Wheeler therein tried at Dorset Assizes on the 12th March, 1818, and sentenced to transportation for life; I knew a prisoner named John Wheeler, he was attached to Hyde Park Barracks, and was to my knowledge treated, in all respects as a prisoner; he was assigned to a person in Parramatta named Lackay, from whom he absconded; I have not seen Wheeler since the charge was brought against the prisoner at the bar; I would know Wheeler were I to see him.

The Attorney General moved, that Wheeler who was in custody in court should be produced in order to his identity by witness.  This was objected to by Mr. Sydney Stephen on the part of the prisoners at the bar, which was however overruled by His Honor, and the prisoner was produced.

Witness proceeded. - That is the man whom I know as John Wheeler, a Convict by the General Stuart; I have no doubt that I was present at the muster of the Convicts by that ship on its arrival in 1818, but I do not recollect Wheeler; my knowledge of him arises from having seen him subsequently as an ordinary Convict; I cannot swear he did arrive by that ship, but I have always understood so; Wheeler is now a prisoner; he was recently sent to Port Macquarie by order of His Excellency for refusing to pay a debt; but having subsequently paid it, he was withdrawn.

John Dalley being called as to the identity of a John Wheeler by the General Stewart, in which he arrived, stated that he did not recollect distinctly although it was something like a dream to him.  Being informed that the jury could not decide on dreams, the witness withdrew.

John Wheeler the prisoner in question was called by the Attorney General to give his evidence.  Mr. Sydney Stephen objected to this witness being examined, his answers being calculated to involve him in punishment.

His Honor observed, that as to that it was a matter of discretion of the Court, not of objection by counsel; the witness would be cautioned as to giving such testimony as would criminate himself; it was quite competent for the Attorney General to produce him as evidence.

John Wheeler. - I am a prisoner of the Crown, and arrived in this Colony in the ship General Stuart in the year 1818.

Cross-examined by Mr. Sydney Stephen. - The prisoner Mossman did not assist me in attempting to escape from the Colony; I did not make such an attempt; I went on board the ship to which the prisoner Mossman belonged, in order to obtain a sum of money which he owed me; I obtained the amount of my claim on that occasion, that is my receipt for the same; I was considered generally to be a free man; Mossman understood so, and treated with me accordingly.

Re-examined by the Attorney General. - I was at large in Sydney on my own hands; I had permission from a person in Parramatta to whom I was assigned; I had no pass, I had not been in the habit of getting a pass; I did not consider myself as a runaway from Mr. Lackay; I had frequently been three months away on his business without a pass; I did not ask his permission on this occasion; I did not go back again because I was put in prison; it might be about six weeks from the time I left Mr. Lackay's service until I was taken on board the ship by the constables; I had sold Mossman a coat for 25s. about a month before; he had no money, and told me to go on board and he would pay me; I had frequently seen Mossman ashore, but he had no money about him; I waited for his going off on the evening in question in order to get my money, as the ship was about to sail; it was about nine o'clock when I went off; I received my money, and asked Mossman to allow me to light my pipe; he told me not to light it on the deck as there might be gunpowder about, but I might light it in the cabin; I then went down for that purpose, and was followed by the constables and taken in custody.

Cross-examined. - I am a married man and have three children; my wife conducts a public-house in Parramatta for a person named Cooper; I was employed by Mr. Lackay to ride through the country on his business, sometimes he allowed me to do a little for myself for the support of my family; I formerly kept a public-house on the Brickfield Hill, called the Black Swan, for upwards of nine years; I also had livery stables there; the licence was held in my name for about two years, when it was transferred to my wife on account of my being a prisoner; I have formerly brought actions on the Supreme Court, to the amount of upwards of £1000.

The Attorney-General expressed some astonishment at this part of the evidence, that the prisoner of the Crown, who arrived in the near 1817, could have been allowed to hold a license public-house thirteen years ago.

Mr. Sydney Stephen submitted to the Attorney-General whether, under such evidence, he could wish to press the prosecution further.

His Honor observed that, under the circumstances disclosed, it appeared hard to apply the law strictly to the case of the prisoners, where an individual, even under the nose of the police, acted in all respects as a free subject, it was difficult to assume that the prisoners could have known to the contrary.

The Attorney General. - I'll admit, your Honor, that if the man, Wheeler, had at that time been in possession of a public-house, the defendants might have been deceived, but he had been assigned servant long previously thereto, had absconded, and was published as a runaway in the ``Official Gazette," at the time he intended to leave the Colony.

His Honor. - We will not discuss that matter now, Mr. Attorney, that will be matter hereafter for the consideration of the Jury.

Mr. Ryan recalled. - I am aware that a notification appeared in the ``Official Gazette," of the 7th November, that John Wheeler had absconded from Mr. Lackay, of Parramatta, published for general information, he was reported as a runaway to the Principal Superintendent of Convicts.  The Convicts, by the ship ``General Stuart," were mustered by John Thomas Campbell, Esq., the Secretary to the Government; the muster roll is in the hand writing of James Hardy Vaux, a Clerk in the Office of the Colonial Secretary, which document is signed by Mr. Campbell; the name of John Wheeler appears therein; I am not aware that any other person of that name arrived by that ship; John Wheeler is described as a gardener.

Mr. Newcombe was also put in the box to prove the authenticity of the indent, under the authority of which the Convict, Wheeler, was detained in custody in the Colony.

Mr. Sydney Stephen. - Do you, Mr. Newcombe, call this an indent - do you happen to know what an indent is?

His Honor here took up the question of Mr. Stephen, observing that he was aware that he, Mr. Stephen, would set forth such an objection, in consequence of the document not being cut, but perhaps the Attorney General would set aside that difficulty by drawing his knife through it.

Mr. Stephen observed, that it was then too late, a thing must be proved to be what it is set forth as, the document produced was evidently not an indent.

His Honor stated an anecdote of a similar objection, which had been made before Lord Mansfield, when his Lordship desired the document to be handed up to the Bench, upon which he touched it with the point of his knife, handing it down to counsel and stating the objection, was now set aside effectually.

Mr. Stpehen held that it had been frequently a fatal objection with cases of apprentices.

This objection being, however, overruled by the court, the following witness[e]s for the prosecution were produced.

John Ryan. - I am a constable in the Sydney Police; I remember being engaged to search the ship Juno, then about to sail, as was the general rule on the sailing of all vessels in order to prevent the escape of convicts from the colony.  I was on board that ship when the prisoner Mossman came on board accompanied by Wheeler, whom I recognised as a prisoner, and mentioned my suspicions to constable Murphy, but in consequence of his being well dressed, I did not then interrogate him; I told Murphy that we would see who he was in the morning; I afterwards asked the chief mate Mossman whether the man in blue belonged to the ship and he said he did; I told hsm [sic] of my suspicions that he was a prisoner, when he told me if I thought so I might take him away; Wheler [sic] was then in the cabin; I afterwards saw Wheeler in the forecastle when I went to light my pipe, I told Wheeler that I knew who he was and that he must be aware that he had no business there at that time of night; it was then about ten o'clock at night; he offered me a soverings to say nothing about it; I then called constable Murphy and took Wheeler in custody; I took him to Colonel Wilson, who sent me to put him in the watchhouse; by Colonel Wilson's order I returned to the vessel and took Mossman in custody; after I had taken him to Colonel Wilson I asked him what Wheeler was doing on board the ship, when he said he had no doubt he intended to stow away meaning to escape from the colony.  This witness was cross-examined at considerable length, but nothing material was elicited.

Michael Murphy. - I am a constable in the Sydney Police; I remember being on board the June, I was sent there to prevent the seamen of the Adelaide who were bound over to prosecute the Captain of that vessel, for assisting in the escape of a convict from Hobart Town, from leaving the harbour.  I remember the chief mate coming on board about 12 o'clock, accompanied by Wheeler and some others; I did not know Wheeler at that time, nor that he was a prisoner; I was standing at the gangway at the time; the mate remained on deck, and Wheeler immediately went down into the cabin; Ryan went to the mate and asked him who that man was, that had gone down into the cabin he said, oh, it's all right, he belongs to the vessel; having seen the vessel cleared out, and not recollecting a man like Wheeler, our suspicions were excited that he was a prisoner; in about ten minutes afterwards Ryan went into the forecastle to light his pipe, and immediately called me down, when he stated that the man's name was Wheeler, that he was a prisoner of the Crown for life, and had formerly kept a public-house on the Brickfield-hill; he then went to the mate and taxed him with having told him that Wheeler was a seaman belonging to the vessel, when on the contrary, he was a prisoner of the Crown, Mossman said, if he was a prisoner, he would lower the boat and send him ashore; we kept him in custody until morning, when we took him to the watch-house, he made an attempt to get away from us, but was prevented, I saw him offer Ryan something which Ryan rejected; I heard Mossman say while he was going to the watch-house that he had no doubt Wheeler intended to stow away.  In searching Wheeler in the watch-house, we found a gold watch, a variety of jewellery, two razors, a sovereign, and about eighteen shillings in silver.  The prisoner Welsh came on board about 10 o'clock, in a waterman's boat, accompanied by a prisoner of the Crown attached to H. M. Dock-yard, named Smeaton, and we took them also in custody.

This was the case for the prosecution.

Mr. Sydney Stephen on behalf of the prisoner Mossman, addressed the Jury at considerable length and called the following witness for the defence.

Captain Richard Banks. - I am a master mariner; the defendant, Mossman, has sailed with me two voyages in the capacity of second and chief officer; he is the last person whom I would deem likely to engage in such a transaction as that with which he is now charged; my reason for forming that opinion, is founded on a knowledge of his character, and the recollection of a circumstance which occurred on one occasion when a prisoner had concealed himself on board for the purpose of escaping from the Colony, but being discovered by Mossman, then second officer, he was reported to me, and we put the vessel into Norfolk Island, and gave him up; I should certainly consider the defendant incapable of conniving at the attempted escape of a prisoner of the Crown.

This was the only witness for the defence, when his Honor summed up elaborately, and left the case with the Jury, who retired about half an hour, and returned a verdict of Not Guilty.  Mossman was discharged; but Welsh was detained on another charge of a similar nature.

 

Notes

[ 1] See also Australian, 10 February 1835.

Published by the Division of Law, Macquarie University