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

R. v. Bingle and Were [1837] NSWSupC 25

stealing, cattle - magistrate, prosecution of - court hours

Supreme Court of New South Wales

Dowling A.C.J., 8 May 1837

Source: Sydney Herald, 15 May, 1837[ 1]

Monday, 8th May, 1837. - Before the Acting chief Justice, and the following Civil Jury: - Mr. James Hindmarsh, Commissariat Clerk; Mr. Peter Howel, miller, Penrith; Mr. Walter Howel, miller, Penrith; Mr. Charles Hadley, grazier, Penrith; Mr. Thomas Hadley, grazier, Penrith; Mr. J. Howison, builder, Parramatta; Mr. Richard Hunt, landholder, Parramatta; Mr. Henry Harvey, landholder, Parramatta; Edwin Atwell Hayes, gentleman, South Head Road; Mr. J. Hadfield, dealer, Parramatta street; Mr. J. Hamilton, boot-maker, Kent street; and Randal F. Humer, Esq., Appin.

John Bingle, Esq., of Puen Buen, was indicted for stealing three oxen, fifty cows, fifty heifers, twenty cows, and ten bulls, the property of Jesse Coleman, on the 23rd of December, 1836; and William Were, was indicted for aiding, assisting, comforting, and abetting the said John Bingle in the felony aforesaid.  Other counts laid the property as belonging to one David Grover, and to our Sovereign Lord the King.

The Attorney-General opened the case, as counsel for the Crown.  He said it was his duty to conduct the trial, and the first part of that duty would be to lay before the jury a statement of the facts that he intended to produce in evidence in support of the indictment.  By the information the jury would have learned that the prisoners were charged with a very grave offence - cattle stealing.  The information contained six counts; the first count charged Mr. Bingle with stealing cattle the property of a person named Coleman; the second count charged Mr. Were, with aiding, assisting, and abetting in the commission of the felony; the third and fourth counts laid the property in a person named Grover; and the fifth and sixth in out Sovereign Lord the King.  The charge of cattle stealing was always a most serious charge when brought even against persons in the lowest station of life; but when brought against gentlemen - men moving in a respectable sphere of life, one of whom held the honorable and responsible office of a Justice of the Peace - men of large fortune - the jury had a most important duty to perform in investigating it.  There should be strong evidence given before the charge could be entertained, to rebut the presumption that men holding the character of gentlemen must be above the low and mean feelings which actuate the minds of those who are guilty of the crime of cattle-stealing, especially when they were men of large fortune, and the causes that often led to the commission of crime could not be supposed to operate.  When all these circumstances were combined, it would require strong evidence indeed to rebut their presumptive innocence.  In the exercise of that most unpleasant, and to him the most anxious duty, that of acting as Grand Jury - acting in the place of twenty-three individuals - he had paid great attention to these presumptions.  No man would more rejoice than he would at the Attorney-General being relieved from acting as Grand Jury: feeling as a British subject, and estimating and revering the institutions of Britain, he could not consider that he was acting constitutionally when occupying the place of a Grand Jury; but at present he was compelled to do it.  It had been suggested that he, as Attorney-General, had been ordered to institute the present prosecution; but he positively denied it.  He would not allow any power on earth to influence him: he was sworn to exercise the authority of his office to the best of his judgment, and he would do so, as he had always done, unassisted, unaided, uninfluenced by any one.  He could not shut his ears to the rumours that had been industriously circulated that he present prosecution was got up for political purposes - that it was a political prosecution; and those rumours must have reached the ears of the Jury.  With the present prosecution politics had nothing whatever to do, and the jury must dismiss such an idea from their minds.  If the jury had any preconceived opinions on the case, they must have been formed without knowing the facts of it, and they must decide on the evidence that would be brought before them; on the evidence that would be adduced the case must either stand or fall.  Of Mr. Bingle, he knew but little - of Mr. Were, he knew less; but he would rejoice if the jury, on their oaths, could acquit them of the crime for which they then stood at the bar.  Although the circumstances of the case occurred as far back as October 1835, they had not come under his notice until January last, when he received three depositions made before the Police Magistrate at Newcastle, one made by Jesse Coleman, who was unfortunately killed in February last, and whose evidence he should not therefore be able to lay before the jury; a second made by David Grover, who would come before the jury to be examined; and a third made by Mr. William Sparke, a respectable settler at Hunter's River.  When he saw that the affidavits had not been made in the presence of Mr. Bingle, he did not consider it would be fair to act on them, and he accordingly wrote to Mr. Bingle requesting him to call at his Office, and when Mr. Bingle called he placed the depositions in his hands. When he considered that the depositions were made by prisoners of the crown; that those prisoners of the crown had been in the service of Mr. Bingle, he certainly looked with suspicion on them, and if Mr. Bingle had satisfied him that they were false, no further steps would have been taken; but he defence of Mr. Bingle going to implicate the Bench of Magistrates at Invermein, who he was bound by his office to consider an enquiry on the spot, in order that the case might be fully heard.  The Police Magistrate at Maitland, Mr. Day, was ordered to attend to conduct the investigation, in delicacy to the Invermein Magistrates; for if Mr. Bingle was right, of course the Magistrates were wrong, and if the Magistrates were rights, Mr. Bingle was wrong.  The Crown Solicitor also went down to conduct the prosecution.  An investigation took place, when it appeared that Coleman and Grover had been in Mr. Bingle's service; having obtained their tickets-of-leave, they rented a piece of ground from Mr. Bingle, known as Sparke's farm, at £50 a year, ad they were to be allowed the use of fifty cows to be reasonably milked so that they could support their calves; afterwards they agreed to act as stock-keepers to Mr. Bingle; Coleman at £25, and Grover at is £18 per annum, which was very nearly the rent of the farm; in October 1835, a charge was made against Coleman and Grover by Mr. Were; certainly a most extraordinary charge for Magistrates to decide on themselves; they were charged with slaughtering cattle not their own, and branding cattle improperly.  The examination lasted several days. Captain Dumaresq and Mr. Little were the Magistrates until the last day, the 4th of November, when Mr. Little was not present, and Dr. Carlyle and Mr. Macqueen took their seats on the Bench.  The opinion came to by the Bench was, that the prisoners were guilty, and they recommended their tickets to be taken away, and their property be confiscated.  The case was not a case for Magistrates; it was a case for the decision of the Supreme Court, but with that the jury had nothing to do.  When men holding tickets-of-leave are found guilty of any delinquencies, an account is taken of all their property, which goes to the crown.  As the crown, by allowing the men to hold tickets, allows them to get into debt, all bona fide and just debts are always paid out of the proceeds of the property taken possession of by the crown; and from his experience in the crown office he was enabled to say, that claims for debt not bona fide due were often made, but after the sale of confiscated property just debts were always paid.  When the Bench came to the decision; they sent a letter to the Principal Superintendent of Convicts acquainting him with the confiscation of the cattle, but in so doing the Magistrates laboured under a mistake; they should have sent the information to the Attorney-General.  Mr. Hely was an officer who did his duty as well and as zealously as any officer in His Majesty's service, but he knew what that duty was, and he did not step beyond it; he acted on that part of the letter which concerned him, but took no notice of that which did not.  On the last day of the examination of Coleman and Grover, Mr. Bingle gave evidence, and it appeared that Coleman had sixty-eight head of cattle, and Grover twenty-five head.  After their conviction, Mr. Bingle requested that the men might be allowed to go home to their wives to settle their affairs, which was consented to , and it was agreed that the small things about the house should be allowed to be kept by the men's wives and taken no notice of.  As the cattle of Coleman and Grover which were branded diamond G and JC were on Mr. Bingle's land, Mr. Bingle and Mr. Were said they would collect the cattle and make a report to the Bench. The Bench gave no further authority; they could give no further gave no further authority; they only gave such an authority as they would have given to a constable, if Mr. Bingle had no undertaken to collect the cattle.  The District Constable or the Mounted Policemen must have done it if Mr. Bingle had not.  When the Bench gave permission to the men to go home, they of course did so.  There were three working bullocks on the farm belonging to Coleman, which Mr. Bingle caused to be branded with his brand, an anchor and the letter B. Captain Dumaresq has some recollection that Mr. Bingle said the prisoners owed him £30; but the men said the balance was the other way; at any rate Mr. Bingle never sent in his bill.  Dr. Macartney claimed £5 for medical attendance, which it was agreed should be paid out of the proceeds of the sale of the cattle.  The prisoners could not have been in Mr. Bingle's debt; for it would be seen that their wages as stockmen nearly equalled the rent of the farm, and besides that, they had supplied him with a ton of hay and one hundred and fifty bushels of wheat; they also had an agreement for four hundred and twenty rods of fencing at 2s. 9d per rod, and for eighty hurdles at 1s 6d. each.  At these facts clearly showed that they could not be indebted to Mr. Bingle, but that Mr. Bingle must owed them money.  But no matter whether Bingle owed them money, or they owed Bingle money, the Bench never gave authority to Mr. Bingle to pay himself, and place any value he thought proper on the property he appropriated to himself.  The prisoners had two colts, and the day after they arrived at the farm, Mr. Bingle asked them where they were; they replied they had sold them to Rushforth for £5; when Mr. Bingle told them that he thought the Bench would be angry if they knew the colts were sold while they were in the watch-house, and recommended them to get off the bargain, and he would take the at the same price, and pay them afterwards when they were assigned down the country.  The bargain with Rushforth was broken off; the colts were taken possession of by Mr. Bingle, and he never made any return of them to the Bench.  In the possession of Mr. Stokes they would find a book which fully corroborated him in what he said.  The colts were given over to Mr. Stokes along with the other property of Bingle, and Mr. Stokes had one of them broken in for his own use.  Mr. Bingle also bought some harness, and paid for it; Grover's share was £2 16s. Soon after the men lost their tickets, Mr. Were, Mr. Bingle's superintendent, wrote to the Colonial Secretary to know how it was that the names of Grover and Coleman did not appear in the "Government Gazette," as having lost their tickets-of-leave, as he had obtained a verdict against them, and their tickets were recommended by the Bench to be cancelled. Not receiving an answer, he wrote a second letter to the Colonial Secretary, and finally addressed a letter to the Governor on the subject.  Although Mr. Were displayed such anxiety to have these mane's tickets taken away, there was not a word said about the property all this time; and it would be for the jury to say whether this anxiety was bona fide, from an abstract love of justice, or with the intention of getting the men away that they might keep the property; for if the men's tickets were not cancelled the property would of course have to be given up again.  Captain Dumaresq made several enquiries as to what had become of the cattle, and was always answered that they had not been got in; that nothing had been done, though at the time three of them had been branded, and eight or nine of them had been slaughtered, in Mr. Bingle's yard.  This fact was not denied by Mr. Bingle - it could not be denied; it was too strong a fact; it was known to all his men, and some of them had been slaughtered before the letters were written to the Colonial Secretary by Mr. Were. Patrick Donoghue, Mr. Bingle's stockman, who had appeared as a witness against Coleman and Grover, got directions to bring in Mr. Bingle's cattle, but not a word about these men's cattle.  Thirty-five of them were driven over to Liverpool Plains; they were in the stockyard at Puen Buen, but they were not given to the Bench; they were not placed in the pound.  These cattle must have increased; no account of the increase had been kept; they had merged into Mr. Bingle's stock.  The three working bullocks which had been branded were used in his team until he sold them to Mr. Goggs, thereby making them entirely his own.  The only object of the Bench was to have them collected at once for confiscation; and the only authority given to Mr. Bingle was only such an authority at would have been given to a constable - to make his return.  Since these proceedings had been instituted the Mounted Police had been sent to Liverpool Plains to look for the cattle, and although not one half of them had been collected - only twenty-one cows, fourteen bullocks, and eleven calves, with the two colts and a chestnut mare - they had been sold at Maitland for upwards of three hundred pounds, before the enquiry commenced, Mr. Bingle had engaged his passage in the Cragievar, and had entered into an agreement with an honorable and respectable young man, Mr. Frederick Michael Stokes, to take charge of his property, and Mr. Stokes had given up a respectable and lucrative situation as joint Editor of the Sydney herald to proceed there.  In giving up the accounts, Mr. Bingle made no difference between the branded diamond G cattle and the J C cattle and his ows, [sic] in fact, Mr. S. had one of the colts broken in for his own use.  About the 30th December, Mr. Were left Mr. Bingle's employment, but remained living at Mr. Stokes' a his guest.  Had Mr. Bingle gone before any enquiry was instituted, he would ask, if any account would ever have been furnished?  Indeed he looked upon this as the most damning fact against Mr. Bingle, as clearly proving he intended to make a property of the cattle.  It might, perhaps, be said that Mr. Bingle being authorised to collect the cattle, had legal possession, and that if he afterwards converted them to his own use, it was fraud not felony; but in the first place the Bench had no authority to give any person possession; they could only act for the benefit of the Crown, in the second, of "Russell on Crimes," it was laid down, that if it appeared a person had only a bare charge of property, he could commit a larceny by converting it to his own use.  The question would be whether, ab initio, the animus farandi existed.  There was a circumstance which occurred in December last, which showed Mr. Were's connexion with the affair.  Coleman go permission from his master to come to Sydney and see Mr. Bingle; he came, but as he was since dead, they could not learn what the result of that interview was.  He afterwards applied for leave to go before a Magistrate, and that coming to the ears of Mr. Were, he requested captain Dumaresq to give a statement of his recollection of what took place at the investigation respecting Coleman and Grover.  Captain Dumaresq wrote back that he thought the cattle were to be put into the pound and sold; but this was not satisfactory to Mr. Were, who requested Captain Dumaresq to leave out about the pound, and asked him if he did not recollect that the cattle were to be sold after just debts were paid; and Captain Dumaresq not suspecting there was any sinister motive, destroyed his first letter and gave Mr. Were a second letter to the effect required.  As to any difficulty Mr. Bingle might labor [sic] under in collecting the cattle, he must have known that the Crown would pay any expenses that were incurred; but numbers of them were within his reach, so much so that he got thirty-five of them into his yard and sent them to Liverpool Plains.  These were the facts he meant to prove; the jury would receive the law from the Judge, and if Mr. Bingle could satisfy them that he did all in his power to have an account kept, no man would be more delighted than he would, at their acquittal.  Much had been said about the difficulty of his situation in acting a Grand Jury, but in the present case he had experienced no difficulty, for his judgment very much deceived him if on the prima facie case there would have been one dissentient voice out of twenty-three Grand Jurors us to the propriety of putting the prisoners at the bar on their trial.  The jury he trusted would not be influenced by what they had seen or read, but try the case entirely on the evidence.  He would be sorry to put any case on the testimony of prisoner of the Crown alone; but in the present case he had other testimony.  The circumstances of the Colony required that persons should be admitted into the witness-box who would not be admitted in England, but that should make the jury the more circumspect in examining their evidence.  Many of the witnesses were gentlemen, and if they had any feeling in the case it must be in favor of the prisoners, who were gentlemen.  After a few general remarks, the learned gentleman proceeded to call witnesses.

Mr. James Raymond, Clerk of the Records in the Colonial Secretary's Officer, said - I produce the Incidents of the ship Marquis of Hastings (2), I find the name of David Grover by the Marquis of Hastings; he was sentenced to fourteen years; and Jesse Coleman, by the Midas, sentenced life.

Mr. J. R. Brenan, Superintendent of Convicts. - This document is signed by Mr. Ryan, the Chief Clerk in the Office; it encloses tickets-of-leave for cancellation; I believe the work "cancelled" under the names of Grover and Coleman to be in the Governor's hand-writing; the tickets were cancelled accordingly; I produce the record; the tickets were destroyed by Mr. Ryan, who received them from the Clerk of the Bench at Invermein; on the 19th of January, 1836, I received directions from the Colonial Secretary to forward the letter of the Bench requesting the cancellation of the tickets, but it could not be found.

David Grover. - I am a prisoner of the Crown; I arrived in the Colony in 1827, in the Marquis of Hastings; I was assigned to Mr. Drew, who resided on the Wollombi; I was with him two years and ten months, after which I went to Mr. Bingle, with whom I remained until I got my ticket in 1834; I knew Jesse Coleman; he was in Mr. Bingle's service; he got his ticket before me; he and I married two sisters; we took a farm from Mr. Bingle at Dartbrook; I know this paper; I am no scholar; I can write; I cannot read; this is my name; we took thirty-five acres; the rent was to be £50 per year; we were to have the milk of fifty cows, and a team of bullocks; it was called Sparke's farm; I was employed by Mr. Bingle as stock-keeper; I was to receive £25 a year and the use of a man; the man was to do my work when I was looking after the stock; Coleman was afterwards employed: he took another man's place as stock-keeper; he was to receive £18 per year; I recollect being brought before the Bench at Invermein, in November, 1835; it was about a month from the time we were first brought up until we were discharged by the Bench; Mr. Were was superintendent to Mr. Bingle; he brought us up; my ticket was cancelled; Coleman was brought up at the same time; his ticket was cancelled; I told the Bench I had twenty-five cows, bullocks, and calves; I branded the with a diamond and the letter G; they were all branded but one calf; Coleman said he had sixty-eight; I could not swear he had that number; he had more than I had; his cattle were branded with the letter J C; I do not recollect telling the Bench I had any other property; the Bench told me they would cancel my ticket, and the property would go to the Crown; outside the Court Mr. Bingle said "it was a bad job, and he was very sorry"; he asked us if he could do anything for us; we said we would be much obliged if he would ask the Bench to let us have a pass for a few days to settle our affairs, as we owed a little money and were owed some; Mr. Bingle told Coleman he had better go himself, but at length Mr. Bingle went; he was gone about five minutes, and said it was granted, and we were to the farm in charge of Curtis; our wives went with us; we passed Mr. Bingle on our road up, where the men were washing sheep; about half an hour after we got there, Mr. Bingle came; we were to give over to him the things on the farm belonging to him; we gave them up safe; Mr. Bingle said the Bench had authorised him to take our property; he did not say what property; he did not say what for; he took one of my working bullocks; and one of Coleman's, they were branded; I branded them with an anchor and the letter B, Mr. Bingle's brand; he ordered two of his own servants to brand them; I think there were three branded that morning; the policeman was present when they were branded; our cattle were running on Mr. Bingle's farm; I did not see any more of our cattle about the stock-yard; Coleman had a mare and a foal, I had a foal; not at the time I lost my ticket; I sold him before, while I was in the lock-up, to Rushforth; Coleman sold his young horse; we got them back; Rushforth gave me an order for £10; after I lost my ticket I saw Mr. Bingle at his own house, when he asked me about the horse, I told him; Coleman was present; he said he thought the Bench would not be pleased, and he asked me if the man would take his money back, and I said I dared say he might; he asked me what kind of colts they were, I told him they were strong colts, and he said if Rushforth would take his money back he would take them at the same price, as he had go the rest; I saw Rushforth and gave the order back, and he gave up the colts; Mr. Bingle agreed to take them and give £5 each for them; he said he did not think it advisable to pay us then; as our tickets were only recommended to be cancelled he did not know how it might be, and if we were assigned down the country we were to write to him and he would send the money; the horses were on his farm at the time; we brought some things down the country on a dray lent us by Mr. Bingle; our wearing apparel, that's all; we sold some harness to Mr. Bingle; after we had returned him his own things, he said the harness was not good to us and he would buy them; he did so; my share was £2 16s.; I was paid by an order on Mr. Francis Mitchell: I left it with the landlord of the 'Black Swan,' near Maitland; we settled no accounts; I did not consider we owed Mr. Bingle anything; I thought he owed us about £30 for labour; for stock-keeping; we did four hundred and twenty rods of fencing at 2s. 9d. per rod; this is my name; I do not know whether this is the agreement; we made eighty hurdles at 1s. 6d. each; we sold him one hundred and fifty bushels of wheat and one ton of hay; when he gave us the money for the harness he did not say we owed him anything; he said if we got assigned out down the country to tell the master to write to him, and he would send a character of us; we went to the lock up when our pass was out, and from that to Newcastle Gaol; I was assigned to Mr;. Edward Sparke, near Maitland; Coleman was assigned to Mr. William Sparke; I told Mr. Sparke about the character and he said he did not require one; Coleman died about three months ago; I saw my cattle in the team just about Christmas; they stopped at our place; they were in charge of a bullock-driver and two or three other men; I knew the bullocks; I was not surprised at seeing them, as I heard before they were at work; I never saw Mr. Bingle himself afterwards; Coleman went to Sydney with his master; he said he would call on Mr. Bingle; I got some information  from Robert Carter about the cattle; I went before a Magistrate in company with Coleman after Christmas; I was sent out after the cattle with a policeman; I got forty-six altogether; there were fore policemen; the cattle were given up to Serjeant Lee; Mr. Were was not at our place when the three bullocks were branded; fifteen of cattle I got lately were mine; they had my brand on; the anchor was not on any of them but one; that was branded by mistake; there was a steer of Coleman's with two anchors; the stock-keepers said there were two of three other head of cattle; I went to Mr. Bingle's station on the Gwydir River; if the cattle had been collected when we lost our  tickets more would  have been collected; I could have got all mine within one or two; my cattle would have seven or eight increase in a year; I do not know how many Coleman's would have been, but I heard him say he got fifteen or sixteen every year; when our tickets were cancelled we were in Mr. Bingle's employ.

Cross-examined - I came from the lock-up-house; I was in custody; I have not got my ticket back; my cattle were of different ages; they had different brands; I bought them and bred them; I do not know whether I was apprehended on a charge of cattle-stealing; I was not at large after I was brought before the Bench; I never heard that the hides of the cattle supposed to have been stolen by me and Coleman were found with the brands cut out; we were in possession of the farm about sixteen months; we had some flour, sugar, salt, and soap, from Mr. Bingle, but we returned wheat in lieu of it; not the wheat before alluded to; we returned some of the things back, weight for weight; I do not recollect who was store-keeper at the time; we got about £12 from Mr. Bingle; everything we got from the store for the first six months we were to return; Mr. Docker got meat from Mr. Bingle; he might have had other things; we broke the shaft of the dray; there was a cross-cut saw; the plough was better when we left than when we got it; the harrow was as good when we left as when we went; I never owed Mr. Young £8 10s.; I do not know whether Coleman owed Mr. Macartney anything; he attended Coleman's wife, but he had a cow; I never joined in any order on Mr. Bingle; I owed Mr. Coxen nothing; there were near one hundred and fifty bushels of wheat delivered either to Mr. Sutherland or Mr. Bingle at 3s. 6d. per bushel; I could not swear to a few bushels; there was a ton of hay at £4; Coleman put up the fence with some of the men; he had put up a fence for Mr. Little before; I saw the fence lately; there was a panel or two down; I do not know that the posts are split, nor that the rails are falling out from being too short; Mr. Fisher sent me to Mr. Bingle's station at Liverpool Plains to look for the cattle; we found the cattle the day after we got up, some of them; Mr. Bingle's is a large runs I never brought the whole of my cattle to the yard; Mr. Bingle insisted on ticket-of-leave men registering the whole of their cattle; I registered mine at the Redbank court, about four years ago; I often brought my cattle into the stock-yard; Donoghue has seen my cattle: we were to be allowed the use of fifty cows; Mr. Bingle knew we had cattle; I could have collected my cattle; Mr. Bingle had not a thousand head of cattle when I lost my ticket; I could have got Rushforth's order cashed down the country; Mr. Bingle persuaded me to give up the order, and he took the colts; I should not have given the £10 to Government; after we were convicted we had no use for bullock-yokes and bows; there were twenty-five bushels of wheat in the house, which we never got anything for; when the Bench took away our tickets they said the cattle were to be confiscated; the things in the house were to be allowed us; a policeman went with us to the farm; I dare say he was the brand put on the cattle; he was within sight of the yard: those bullocks I saw in the dray, it was the wool season: there was a soldier with me to prevent my selling: we sold the colts outside of the lock-up: we never had a settlement: I made the charge to Mr. Day: Mr. Bingle was not present: Mr. Bingle was brought up shortly afterwards: Mr. Bingle promised to give us a good character: I never heard Coleman say that his master had applied to Mr. Bingle for a character: the cattle at Liverpool Plains were branded as they always were.

Re-examined - I do not understand the account just read; I considered Mr. Bingle was indebted to me; a few days before the lease we had a settlement when the balance due to me was £10; this is the account in Mr. Bingle's hand-writing (accounts put in).  Just after we lost out tickets I told Mr. Bingle we owed no person any thing but the tailor about £1; the one hundred and fifty bushels of wheat were independent of what we gave for the flour; the cheeses were never paid for, as we did not know the market price. There was never any complaint made by Mr. Bingle or the superintendent about he fencing; Mr. Bingle and his men knew more about the run than any one else; I should  have thought the cattle would have been as safe without Mr. Bingle's brand as with it; Mr. Bingle said as they were there it would be better to brand them; it was well known in the neighbourhood that we had lost our tickets; I made a complaint to Mr. Sparke about the cattle being kept.

Mr. William Sparke. - I am a settler residing on the Hunter's river between Newcastle and Maitland.  A man named Coleman was assigned to me; he died in January last for a blow; Grover was assigned to my father; I had some conversation with Mr. Bingle about Coleman; I asked Mr. Bingle what sort of character Coleman was, as Coleman requested me to do so; he said he was a bad character; that was the only conversation I had with Mr. Bingle about him; as Mr. Bingle was turning away I said, "he says he has got some cattle," and Mr. Bingle said 'no, they were confiscated.' Coleman many times asked me to let him go to Mr. Bingle; he said he would sooner let the cattle go to the crown then to Mr. Bingle, and I allowed him to go to Sydney to  make inquiry; he was not satisfied, and I gave him permission to make his complaint, and he told Mr. Wentworth about it, and then he was sent for by Mr. Day; Mr. Bingle did not seem to avoid the conversation about the cattle; he was turning away when I spoke to him about them; Grover was sent for at the same time.

Cross-examined. - I told Coleman Mr. Bingle had given him a bad character.

Captain William Dumaresq. - I acted as a Magistrate at the Invermein Bench, in October 1835; I recollect a complaint being made against Coleman, and Grover: - they were charged with slaughtering cattle not their own, and branding cattle improperly; Mr. Were, Mr. Bingle's superintendent, was the prosecutor; the case was under investigation from October 14th to November 4th; there were several adjournments; Mr. Bingle's deposition was taken on the 4th of November, (Decision of the Bench road); Mr. Little and myself took all the depositions, with the exception of Mr. Bingle's evidence; after the property was directed to be confiscated, the question was how the cattle were to be collected to be handed over to the crown; I saw Mr. Were in the body of the court; I understood the cattle were with the Mr. Bingle's on his run, and I said, "Mr. Were, will you undertake to collect the cattle ?" understanding he was acting as the superintendent of Mr. Bingle, and he said he would; he was present when the decision of the Court was given; I am impressed with the belief that he was aware of the decision of the Bench; I believe Mr. Bingle was aware of the decision of the Bench; I recollect Mr. Bingle getting a pass for the men; I cannot say whether Mr. Bingle was present when Mr. Were agreed to collect the cattle; the Bench must have found a person to do so; there was nothing said about it, but my idea was that when any cattle were collected, it would be reported to the Bench for further instructions; in that authority to collect Mr. Bingle or Mr. Were had no authority to appropriate them to their own use; there was nothing said about the cattle being placed in the pound; my idea was that would be the proper place to put them in; no report was made by Mr. Bingle or Mr. Were; two or three times in the course of that year, I asked Mr. Were if he had been able to do any thing in collecting the cattle, he said 'no, I was aware the seasons were adverse, and therefore I did not press the thing; Coleman stated that his cattle should amount to sixty-eight, and Grover's to twenty-five; I do not recollect anything about horses; I never spoke to Mr. Bingle on the subject this note is my hand writing; it is dated December 19, 1836; before that date, Mr. Were asked me if I recollected what the decision of the Bench was in the case of Coleman and Grover; I sent an answer that speaking from memory, the cattle were to be confiscated to the crown, after paying just debts, and the prisoners' tickets to be cancelled; when collected the cattle were to be sold at the pound; after this, Mr. Were called on me and stated that that part of my not which related to the sale of the cattle at the pound was not necessary for the purpose he wanted it; as that part of my note was not part of the decision of the Bench, I wrote this not, and destroyed the other; the impression on my mind was that he wanted the note to send to Mr. Bingle; Mr. Were did not say any thing about working bullocks; it was on another occasion that I gathered from him, that some of the cattle had been killed, and I told him he had done what was not right; I cannot swear it was at another time; he asked what was to be done, and I said he had better communicate with the Bench; I am not aware that the Bench at Invermein had any communication on the subject of the cattle; Mr. Bingle said the men were indebted to him, but the men said Mr. B. was indebted to them; I do not conceive that the Bench gave any authority to Mr. Bingle to pay himself; there was no account produced; I do not conceive that any more authority was given to Mr. Bingle than would have been given to the Chief Constable under similar circumstances.

Cross-examined - It was on Mr. Were's deposition that the men were apprehended; I think Mr. Bingle was superintending sheep-washing; he was absent; we waited for his evidence; after Mr. Bingle's evidence the case was closed the same day; I do not think the cattle could have been collected but by the assistance of Mr. Bingle and his men; that was the opinion of the Bench; Mr. Bingle and Mr. Were agreed to collect them; it was understood he was to collect them when he collected his own, and that he was about collecting his own immediately; it was mentioned that the parties owed some debts; Mr. Macartney said he had a debt for medical attendance; Mr. Bingle came to me and said, "do you think I will be safe in paying Macartney's debt;" I said I had no doubt the government would attend to what we had recommended, meaning that just debts should be paid; I do not recollect that the Bench authorised Mr. Bingle to pay the debts; we understood the debt was for rent or their transaction as his servant; I did not understand that the directions of the Bench were that the debts should be paid by Mr. Bingle; I had some conversation with Mr. Were about the payment of debts; this note is what I recollected of the decision of the Bench; I think Mr. Were said he had killed two or three head of cattle; I understood that Mr. Were was in bad health; Mr. Dumaresq made him some jelly and sent him; Mr. Bingle was a Magistrate at the time of the proceedings against Coleman and Grover; I have known Mr. Bingle nine or ten years; I always considered Mr. Bingle a man of the strictest integrity; I have very little knowledge of Mr. Were, but I always understood him to be a respectable man; when I was asked by Mr. Were for the second letter, my impression was that it was wanted to send to Mr. Bingle; I had not heard they were in any scrape at that time; Mr. Were said two or three head of the cattle were slaughtered, if he had some wrong it was his own act, and upon his own responsibility; I did not understand that Mr. Bingle was authorised to pay debts; my impression was, that when any cattle were sole the Bench would be authorised by government to pay just debts, and the remainder would be appropriated for the benefit of the crown; I understood Mr. Bingle was getting in his cattle; it was a matter of necessity to remove them from the great drought; I was not aware that the Mounted Police were employed collecting cattle; the suggestion that nobody could collect the cattle as well as Mr. Bingle's people, decidedly did not come from the prisoner.

By Mr. Kerr - I supposed that the Bench would pay the debts; Mr. Bingle might have had a different impression.

Thomas Potter Macqueen, Esq., J. P. - I sat as a Magistrate at Invermein on the 4th of November; I signed the decision that was come to on that day; the Bench decided that the tickets of Coleman and Grover should be cancelled; when their tickets were taken away their property fell to the crown; it appeared that each of them had a wife and children; acting on behalf of the crown, I did not suppose that the crown would take away the bedding and should be left for the benefit of the family; I recollect Grover saying there might be a few shillings, more or less, due to him on  settling accounts with different people; there was a medical man and a tailor; he said he owed small debts, and there were debts due to him; I recollect something about Mr. Bingle's accounts; but I am not aware that any positive charge was made by Mr. Bingle; the cattle were to be placed at the disposal of the crown; these cattle were running over a very wild and mountainous part of the country, and they authorised Mr. Bingle to collect them, which was the only mode they had of obtaining the cattle; I distinctly understood that Mr. Bingle would collect them when he was collecting his own and when he had done so he was to place them at the disposal of the crown; it was rumoured that Mr. Bingle was about to sell or let some part of his stock, being about to go to Europe; neither I nor the Bench gave any authority to Mr. Bingle to appropriate those cattle to his own use; nothing passed that could induce Mr. Bingle to think so; no official report of the collection of the cattle was made to the Bench; at the time I speak of Mr. Bingle formed one of the Invermein Bench.

Cross-examined  - It came out in evidence that there were some debts due to these men; I considered from the statements of the man that the dead stock on the property would pay the debts, leaving the cattle untouched; Mr. Macartney made a claim of 4l. 16s.; if the wheat and harness did not pay the debts, I considered an account would be sent to the Bench; the men said some debts were due to them; Mr. Bingle was to be answerable for the returns or the cattle; I am not aware that I said Mr. Bingle had authority to dispose of the cattle; I thought he was authorised to dispose of the dead block; the main object was to secure for the crown all the property except after debts were paid; we considered it was the most beneficial plan for the crown to get Mr. Bingle's overseer to collect the cattle; Mr. Were has been in very ill health; it was impossible for him to go out after cattle; the clothes and furniture were given up out of charity; I heard there was some wheat and some bullock chains; Grover was questioned about his debts; I heard Grover giving evidence, but I do not recollect interrupting his evidence, I recollect the question was raised whether he was swearing falsely or not; Grover was certainly checked once or twice for some inaccuracies; Grover's examination lasted two days, and from his former conduct I had a decided prejudice against him; Captain Dumaresq was the senior Magistrate when the business was gone through; I heard Mr. Were saying something about he cattle to Captain Dumaresq about twelve months ago; Captain D. asked if there had been any return, but I did not hear Mr. Were's answer; Mr. Were was then in a very precarious state of health, and had come to the Court to meet my surgeon.

Re-examined - My distinct understanding was, that the cattle were to be collected as soon as they could; Mr. Bingle offered himself to collect the cattle; if I had thought any of the things would have been sold to Mr. Bingle, I would not have authorised their detention by Coleman and Grover; I considered we were serving the crown by the arrangement we were making; Grover gave his examination very accurately generally; there were some technical mistakes about dates.

Re-examined for the prisoners - He said he had met some man on the road, which was doubted; I may have stopped him for saying he had not been examined about the debts; his conduct throughout appeared to be very improper; I understood it was Mr. Bingle's offer to take charge of the cattle; the impression on my mind is, that Mr. Bingle, to meet the views of the Bench, made the offer; I cannot swear he was not asked.

By the Attorney-General  - there was a doubt as to whether Grover had been examined about his debts, and the Chief Constable reminded me that he was sent for him; the point was satisfactorily cleared up afterwards.

Thomas Curtiss, private 4th Regiment - In November 1835, I was in the Mounted Police at Puen Buen; I was ordered to take Grover and Coleman to the farm on some particular business; I saw Mr. Bingle washing sheep; the prisoner spoke to him and Mr. Bingle spoke to them; Mr. Bingle came up to the house; it was the day after the Magistrates gave them to charge to me; there were chairs and tables and bullock chains; I saw no wheat; I saw some cattle; I saw some working bullocks; I saw three branded by Mr. Bingle's orders; he told a man that was there to assist Grover in branding them; another man heated the irons; I heard Coleman say there were two J C and one diamond G; Mr. Bingle's brand was put on; I saw no money at the time; I did not hear all the conversation that took place; I heard them talking about the bullock chains; I cannot say whether they made any bargain about the chains.

Patrick Donoghue - I am a stockman; I have been free about three years; I am in Mr. Bingle's employ; I remember Coleman and Grover losing their tickets; I was one of the witnesses against them; I know they had some cattle, but I do not know how many; they had some cattle, but I do not know how many; the most I ever saw at one time was ten; I saw their cattle about the time they lost their tickets; Mr. Bingle removed his cattle about nine months afterwards to the Gwydir; some of Coleman's went with them; I cannot say how may; we brought them in three drafts; I think we took thirty five of the cattle belonging to Grover and Coleman; we considered them as belonging to Mr. Bingle, as they ran with his; I never had any distinct orders about them; we had them in a stockyard; it would have been bad to collect Coleman's by themselves; what we had in the stockyard we could have kept; we branded the calves with an anchor in order that we might know them from Mr. Bingle's; I know that some of Grover and Coleman's cattle were killed by Mr. Were's directions; about six or eight head; they were killed in Mr. Bingle's yard; I cannot say when they were killed; we killed a bullock a week for the farm, other cattle were killed in intermediate times; the meat from these six or eight head was used on the farm; some of those cattle were lately got by the Mounted Police; we had a difficut [sic] job to draft them; they broke the yard down; two colts were running at Sparke's farm; I so not know whether they were considered as Mr. Bingle's; they were on the farm when Mr. Stokes came; I do not know how many bullock Coleman and Grover had; some of the their bullocks were used in Mr. Bingle's team; they were branded anchor B, and I considered they belonged to Mr. Bingle.

Cross-examined - I cannot say the exact time that the cattle were taken up the country; the feed was so bad and the cattle were so mixed that it was impossible to muster them; we took them away because no man could herd them; we took them away because no man could herd them; the first draft we took was eighty; some of Coleman's were among them; I had three horses to ride when the grass was so bad; it would be more than three horses could do to drive them over the range the first day or two; if we had let them out of the yard it would have been double the trouble to find them when Mr. Bingle's cattle were gone; our only choice was to take them to Liverpool Plains, or let them on to the old run again; I recollect when we were branding the cattle, Mr. Docker stood by with a book to take them down, and we put two anchors reversed on the calves in distinguish them from other; Mr. Bingle's brand was a single anchor and a B; the Mounted Police generally come and shoot our cattle for us; the brand and weight of every head of cattle slaughtered is entered in a book; Mr. Bingle is generally in Sydney; I have only seen him once in eighteen months, that was at the Court at Invermein.

Re-examined - I was on the farm generally about every two months, but I never saw Mr. Bingle there; I heard he had been there; if you wanted to get them into the pound at Puen Buen, you would find one here and another twenty miler further; I would find one of their's with fifty of ours; I should never see twenty of their's in one drove; it might take two months to have got them all in; I was about three weeks getting the first draft that was taken to Liverpool Plains; we got them all up in three month; we never attempted to draft Coleman's and Grover's cattle; we got no directions.

Robert Carter - I am a bulllock [sic] driver by profession: I was assigned to Mr. Bingle: I am now free: I recollect Coleman and Grover losing their tickets: they had some cattle: shortly after they lost their tickets I saw some f them about: I should think they might have been caught: I assisted to kill two or three of their cattle: I had no particular orders - I cannot say who gave me the orders: the cattle were generally killed by order of the storekeeper: I was there six years, but did not see many killed, being generally on the road: some of their bullocks were driven by Mr. Bingle's men: one or two of the bullocks were branded with Mr. Bingle's brand: I have seen tenor twelve of their cattle about the yard.

Mr. Frederick Michael Stokes  -  I have lately made an arrangement with Mr. Bingle; I am his agent and attorney for the entire management of his affairs on his going to England; he spoke to me about going home on the 8th or 9th of December; he was to go in the Craigievar; she was detained a long time; he had taken his passage in her; she was to sail early in the year: I do not know when she sailed: his daughter went in her: Mr. Bingle was up with me at Puen Buen in November: he was at the sheep-shearing: we had been negociating [sic] for two years off and on: we came down in December: he did not intend going to Puen Buen again: I had charge of his stock of every description: on giving belonging to Coleman and Grover: he did not particularise them: he gave me directions to settle several accounts, and among them he told me that Grover and Coleman had some cattle, and in consequence of some conversations which I had heard, he wished me to settle it as soon as possible: this was in December: I never heard that Coleman had threatened to bring the matter before the Magistrates: I went down with Mr. Were to get a statement of what had taken place: this book was copied from Mr. Bingle's private ledger: that is the ledger: I saw it when the negociation [sic] commenced: this is the day-book that was produced before the Invermein Bench: it has been in my charge since: there is an entry on 5th November, 1835, of Coleman and Grover having sold two colts for £10: there are debits for rent, damage to dray and cross-cut saw: credit for three bullocks, £2 10s. each, one mare £12: on the 11th November there are debits to the same account: Young's bill, £8 10; repairing barrows, ploughs, tin dishes, &c.: no list of cattle was handed to me: I was to get charge of anchor B cattle: the sheep and horses were given to me, but there was no specific number of cattle, there were J B cattle and J G cattle: I knew there were diamond G cattle at Liverpool Plains, but I had no charge of them: I have not heard what has become of the three bullocks for which credit is given to Coleman: I understood two of them were sold: I think Mr.

Goggs told me he bought them: I know I have not got them: Mr. Bingle told me in December that I was to get the account settled: I heard there had been a negociation [sic] between Mr. Potter Macqueen, Captain Dumaresq, and Mr. Macnaughton, the superintendent: I understood from Mr. Bingle that they had been in his service, and that he was to collect the cattle; I do not recollect that the Crown was mentioned, but they were under the direction of the Bench of Magistrates; I heard that the negociation [sic] was going on from hearing it talked of at our table: I should be surprised to hear there was no such negociation [sic]: I heard that Mr. Coxen and Mr. hall were to be referees between the Government and Mr. Bingle: the subject of the reference was to be the price of some cattle that had been slaughtered, and as to the disposal of those that were to be got in: I should not have believed that Government property could have been trifled with so, if I had not heard the proceedings before the Bench, who authorised a private individual to get in Government property: Mr. Were was in Mr. Bingle's employment in November: I am not aware of any attempt before Mr. Were left to get the cattle in: we were to get in the cattle: I understood the negociation [sic] had been acted on because I heard that these two parties were to be appointed to fix a price.

Cross-examined. - I am not lawyer enough to know that it would be compounding felony to take payment for the slaughtered cattle: there was a quarrel between Mr. Were and Mr. Bingle in November: Mr. Bingle was excessively annoyed to find that the account had not been settled, and the cattle got in: Mr. Were pleaded ill health and the extreme difficulty: in December, he particularly directed my attention to these cattle of Coleman and Grover: it is not true that he kept the matter a secret from me: it was Macnaughten and Were that told me about this arrangement: I do not think Mr. Bingle told me what the brands were: I suppose I should have had no difficulty in finding them out: it was well known that Mr. Bingle was going away: it was advertised that I had taken possession of his property: I do not know whether he advertised he was going home: this book, which contains an account of the cattle slaughtered, has been in my possession since January: the investigation at Puen Buen was before  Mr. Day and Lieutenant Beckham: Mr. Fisher was prosecutor: Mr. Macqueen and Mr. Little were examined: I took down the proceedings - all that took place: I was present when Mr. Macqueen was examined: Mr. Scott, Mr. Frazer, Mr. Fisher, and Mr. Day, took down the depositions: I think Mr. Dumaresq wrote his own deposition: Mr. Scott and Mr. Frazer were unable to take them down: before Mr. Macqueen was sworn, he said the Bench authorised Bingle to be the receiver and payer of debts: he recollected about bows and chains being mentioned as to be sold, and also that everything was to be taken by Bingle to pay claims: during the examination of Grover, Mr. Macqueen said he was ready to swear he sent Perry to Grover and told him Mr. Bingle was to pay debts, and if there was any blame he had a right to share it: Mr. Fisher here told Mr. Macqueen he was not called on to implicate himself, or words to that effect: I cannot recollect whether it was in evidence or not, but Mr. Macqueen said he considered Mr. Bingle could legally dispose of the cattle, but was still responsible to the Crown: Mr. Were was in very ill health: I have had these books in my possession since December; it appears that accounts have been kept of the transactions between Mr. Bingle, Coleman, and Grover.

Re-examined - I took down Mr. Macqueen's evidence: I have not taken notes lately: I took notes at the Old Bailey, twelve years ago: I also took notes abroad eight years ago: I cannot swear that I might not have made a mistake: I do not pretend to say I took down the exact words: very few reporters take down the exact words: very few reporter take down verbatim speeches; ever the best note-takers sometimes made mistakes; Mr. Bingle told me he had cattle belonging to Coleman and Grover running with his; he told me they had lost their tickets; after Mr. Were left Mr. Bingle's employ, he was not more bound to assist in getting in the cattle than one gentleman would be to oblige another; I am aware from these books that the cattle were slaughtered: when Mr. Macqueen said that Mr. Bingle had authority to sell I will not swear he did not exclude the cattle: there was no number of either Grover's or Coleman's cattle: the S O cattle were placed with Mr. Bingle by a relative: the increase of them were to be branded S O, I should have branded the increase of the diamond G cattle with the same brand as their mothers: Mr. Bingle told me to manage the affair, as it had caused him great anxiety: I was informed that some of the cattle had been killed, I believe by Mr. Were: I got no directions to hand the cattle to Government, but to settle the affair.

Mr. Macqueen was recalled, and the evidence of Mr. Stokes, as to what Mr. Macqueen said, was read. -  The general authority which Mr. Bingle had was to collect the cattle, to permit the appropriation of the apparel for the family and to dispose of the dead stock for the payment of debts; at the time I quitted the Court I believed the dead stock was sufficient to pay the debts; had it not been so, I should have said the just debts must be paid: Mr. Macartney's account was directed to be paid by Mr Bingle: I cannot say that I ever intended to pay the debts: Mr. Bingle was to pay the debts and collect the cattle: I was not aware that Mr. Bingle claimed a large amount: me conception all the way through was, that Mr. Bingle was the landlord of these men, but I question whether he was entitled to be so, they being ticket-of-leave holders: I know nothing about Mr. Bingle's rent: I consider I was acting illegally in even allowing the clothing to go to the family, I was incurring a responsibility; I think Mr. Stokes made my remark about the cattle too general: Captain Dumaresq took the lead in the whole affair: since I was in Court I have spoken to the Chief Constable, and I can speak to the point I was examined by Mr. Foster, which I misunderstood: Grover denied having been called back, and I reminded the Chief Constable that he had called him back, but it was of no consequence: Grover was re-called, his account of the debts being contradictory: I knew he had been examined about the debts, and when he swore he had not, I contradicted him, but I thought the point was of no consequence.

William Ledge  - I am a store-keeper to Mr. Bingle: I recollect Grover and Coleman: they had some cattle branded JC and diamond G: five of them were slaughtered by Mr. Were's direction: they were entered in the store-book; I kept the book and entered the brands; the entry was made the day after the cow was killed; December 1st a diamond G bullock was killed: on December 14th a diamond G cow: March 9th a diamond G bullocks: March 25th a diamond G cow: May 7th a diamond G bullock: these entries were made the day after the cattle were killed: sometimes there were four or five people present: the Policemen have spot some of them: my duty was to see the stock killed, and to tell Mr. Were what beast was killed: the hide was salted in the usual way, and the meat was turned into the store for the use of the men: the first beast appears to have been killed nine days after the men last their tickets: the beast was brought in by the stockmen and Mr. Were desired me to kill it; I do not think Mr. Bingle was present: I cannot say whether he was in Sydney: it was sheep-shearing time.

Cross-examined - Mr. Bingle was never present when any of these beasts were killed; he might have been on the establishment; he has resided generally in Sydney; the cattle were killed in the usual manner, and the entries were made in the book the day after they were killed, when they were weighed in; these books were handed over to Mr. Stokes after he took charge; by reference to the book Mr. Stokes would have been able to see about the cattle; Mr. Were has been very ill; in July last I heard Mr. Bingle talking loud to Mr. Were about the cattle; he said they should have been got in; in November I recollect the same; Mr. Were said the horses had been knocked up.

Re-examined - I cannot say that Coleman's stock were referred to more than the rest of the cattle; Mr. Were was ill last April: he was not particularly ill before then: Mr. Were looked over my books, and kept accounts from them: Mr. Bingle never troubled me for any accounts: Mr. Were kept an account of the cattle slaughtered.

By Mr. Foster - Mr. Were was not laid up at the sheep-washing, but he was very weak.

Mr. Raymond re-called - These letters were received and registered by myself: they are dated 13th December, 1835, and the 30th January, 1836, from William Were to the Colonial Secretary: the third is dated 17th February, and is from William Were to the Governor: these letters are all Mr. Were's writing.

[The different documents put in were read.]

Corporal George M'Knight - I went in quest of cattle on Mr. Bingle's station: three men went with me: we got forty head: I think we were thirty-two days away: I think we went two hundred and fifty miles from Jerry's Plains: we had not mueh [sic] difficulty, as we were assisted by Mr. Macnaughten and Mr. Bingle's men, who were getting gin cattle: we got them all in that I saw: there might have been three or four left: I brought in forty-fix [sic] head: two calves knocked up on the road: they were sold at Maitland: I do not now that any search was made at Puen Buen.

Cross-examined - We were out thirty days: some of Mr. Bingle's men assisted us: Mr. M'Naughten assisted me: we were eleven days there.

Edward Denny Day, Esq. - I am Police Magistrate at Maitland: some cattle were lately brought down from Mr. Bingle's station: they were sold for £353: I am not aware that any search has been made for the other cattle.

Cross-examined - Mr. Stokes told me where the three bullocks were: I think it was by the Crown Solicitor's order the cattle were sold: it was Coleman made the first complaint to me, I think in the latter end of December: I subsequently took further evidence at Invermein: I sent for Coleman and Grover to enquire into the statement made to me by Mr. Wentworth: he said that Coleman had made a statement to him as a Magistrate, which he did not feel called on to enquire into, but recommended them to apply to me: I did not send to Mr. Bingle about it: it was made before me in the course of business: I forwarded the depositions to the Colonial Secretary before I apprised Mr. Bingle, or took any other proceedings.

Re-examined - These are the depositions: Mr. Wentworth is a Magistrate of our District, and attends the Bench when in the District.

The Attorney-General  - This is the case for the crown.

Mr. Sydney Stephen - I would ask your Honor what sort of a case it is: is it a case you will call on the prisoners to answer.

The Acting Chief Justice - I must let the case go to the jury.  John Bingle, do you wish to say anything to the jury.

Mr. Bingle then read the following defence.

 

May it please you Honor - Gentlemen of the Jury  - The case of the Crown being now closed, it becomes my duty to address to you some observations, for the purpose of placing before you the real merits of the case.  Although we are deprived the benefit of the preliminary investigation by a Grand Jury, I thank God that we have left us the great bulwark of our liberties - Trial by Jury.  Gentlemen, this is no ordinary every day prosecution; you cannot but be aware of the extent to which, what is in this Colony called political feeling, has been carried.  Individuals, for merely exercising their right of opinion on certain public matters, have become marked me; and when argument has been found insufficient to crush an opponent, the power of the Attorney-General to institute a prosecution for Felony has been brought into operation.  The mode f proceeding has throughout been of an extraordinary character; the first intimation I received of this charge was not a warrant or summons from a magistrate, but a note from the Attorney-General, the legal representative of the Head of the Government, dated 14th January, 1837.  I accordingly called upon him, and finding that the subject of his note related to the cattle of Coleman and Grover, I stated to him all particulars, and the reason why the business had not been previously wound-up.  He observed the papers had been forwarded to him by the Colonial Secretary in an irregular manner, and said I must attend at the Invermein Bench, as he should recommend a court of enquiry there immediately, when I should have an opportunity afforded of detailing all particulars.  Gentlemen, the Crown Solicitor was dispatched, and two stipendiary Military Magistrates were sent, one from Maitland eighty miles distant, and the other Mounted Police Officer from Jerry's Plains - These Gentlemen were officially sent "out of their district."  If there was nothing else to show the real character of this case, would not this fact furnish an instructive commentary upon it?  It has been asserted that he mode adopted in my case, was adopted out of consideration for me - that the manner in which this case has hitherto been conducted, evinced a desire to spare my feelings!  Gentlemen, such as assertion is false.  The object was not to spare my feelings - not to show any consideration for me - but to give the case an appearance of the greatest importance - to make it stand forth as an enormity even in the history of Colonial cattle-stealing!  I wanted no consideration shown to me - I wanted, and still want, noting but justice.  Why should this case have been taken out of the ordinary course, if it was not for the express purpose of clothing it with a sort of political importance, to serve a political purpose?  Gentlemen, such is the reason why it has been taken out of the ordinary course; and I could prove the fact were it on an occasion like the present allowed for me to do so.  Why, a few days after this crime is alleged to have been committed, I was absent from my farm acting as a magistrate in the endeavour to discover the perpetrators of a foul murder.  Yet, Gentlemen, thirteen months after, depositions against me affecting my character, relative to matters which occurred about that period of time, were taken in my absence.  Witnesses were examined in private, and their statements transmitted to  Sydney; and upon those statements a preliminary trial was instituted, under the name of an enquiry, at which the ostensible prosecutor was the Crown Solicitor  and the Magistrate Military Officers, paid by and under the immediate orders of the Government.  Gentlemen, if such scenes as these do not occur in the ordinary course of administering criminal justice, is it too much to call upon you to ask yourselves whether some most disgraceful influence was not exercised somewhere in my case?  Gentlemen, I know how, and where, and for what reason, such influence was exercised; and, with the blessing of God, I will, at a fitting time, make all this known to the world.

Gentlemen, notwithstanding the high-sounding "note of preparation" with which this case had been ushered in - notwithstanding the influence arrayed against me, and the attempts made to prejudice the trial - I shall rely for my own exculpation upon a simple statement of facts: by so doing I shall better promote my own interests, and consult your convenience, than by entering at any very great length into what I religiously believe to be the real motives which gave rise to this prosecution.  I shall also abstain from what, under the circumstances, I should consider deserved animadversion, because, Gentlemen, the real prosecutor is not here.  Begging of you to bear in mind, that this is a prosecution altogether out of the ordinary course, as I have already shown - I shall proceed briefly to state the reason why it ought to be scouted from this Honourable Court with contempt it so justly merits.

Gentlemen, it is perhaps, known to most of you;, that for many years past I have been a settler residing in the upper district of Hunter's River, I have also, until very lately, been a Magistrate of the Territory.  To these facts I shall make no further allusion.

In the latter end of the month of October, in the year 1835, I left Sydney for my estate at Puen Buen, 180 miles distant from Sydney, with a view, partly, of being present at the sheep-shearing there; but also, in consequence of a letter received by me, just before, from my Superintendent, Mr. Were, in which he informed me that my evidence was required in a case of alleged cattle-stealing, then pending before the Bench of Invermein, against two men, named Coleman and Grover, holders of ticket-of-leaver, who rented a cultivation paddock on my upper farm, and who also possessed some cattle of their own which (but without any permission from me) ran with my herd, and depastured on my land.  The enquiry, as was stated to me, had been postponed till my arrival; and I accordingly left Sydney, for the purpose of affording any information of which I might be in possession, and which might be required of me.  The first Court held at Invermein after my arrival, was on the 4th of November, and, after my evidence have been gone into, the Bench caused a recommendation to be forwarded to the Government, that the prisoners  should be deprived of their tickets-of-leave, and sent to another district, and that the cattle over which they had exercised an ownership should, after the payment of all just claims against them, be confiscated.  On the occasion, some conversation occurred as to the readiest means of getting the cattle together; and as they were  known to be running on my land, and my people were then endeavouring to collect my cattle, the Bench solicited Mr. Were and myself to act for them in this matter, by causing the cattle to be collected for the purpose of paying all just debts - and, among others, one due to myself.  On the next day, I being then at my upper farm superintending the sheep-washing, Coleman and Grover were brought to me in custody of a Mounted Policeman, requesting, that as they were about to be removed to gaol, I would go with them to their dwelling and see that they took no property of mine away with them - I went with them , and previously to their departure, I purchased several articles of them - such as bows, chains, and furniture, which the Bench had permitted them to retain, in order to enable their wives and families to proceed to Newcastle, to the gaol at which place the prisoners were ordered to be removed to await His Excellency's decision.  That decision, Gentlemen, was not made known until after a lapse of three months, when an official notice appeared in the Government Gazette, dated 8th February, 1836, stating that His Excellency had directed that he tickets-of-leave of these men should be cancelled.  - To this fact, Gentlemen, I beg to call your special attention.  While at the prisoners' dwelling, I observed three small bullocks came to the stock-yard - I asked the prisoners what bullocks they were, and I was told that they were young bullocks belonging to them, which they had broken-in, (and branded with the prisoners' brands) - I then directed them to put my brands in the fire, and when the irons were hot, Grover branded the bullocks in the presence of the Mounted Policeman and others.  While Grover was thus employed; the two colts alluded to in the course of the evidence for the crown, came down to drink; I asked to whom they belonged, and I was answered by (I think) Coleman, that they belonged to him and Grover; but that they had sold them to a person named Rushforth (a man of bad character) for £10-£5 each; I said I would not permit that man to come on my farm, or any one to remove the colts on his behalf; but that I would take the animals myself at the same price; the mare which I had purchased from Coleman some months before, was with them at the time I speak of.  And here, Gentlemen, I must request your indulgence to me in what, under other circumstances, might be considered a digression; a reference irrelevant to the matter into which you are now assembled to enquire, but which I think requires explanation, in order that you may be made acquainted with all the circumstances of this case.  The mare to which I have thus incidentally alluded, had for merly [sic] belonged to one of these men, (Coleman) and was in fact considered mine with his full knowledge and concurrence; during my absence from the farm Mr. Were wrote me several statements respecting what was going on there, and, in his letter, expressed a wish that I would sell him this very mare for his own use; I acceded to his request, and told him he might have her for £12 the same sum which I had given credit in my books; on that understanding he became the owner of the animal, the possession of which is this day imputed to him, as a crime, and relied upon as evidence that he was my associate in alleged guilt; on the day upon which the bullocks were branded or the day following, I sent my groom for the colts, and had them put in a paddock at Puen Buen; and on my return home on the very evening of the day in which I caused this to be done, I made entries in my day book crediting Coleman and Grover for the bullocks and the colts, and debiting with the reasonable value of certain articles deficient on the farm, together with the amount of damage done to dray, &c; this was in the sheep-shearing season, and I being then particularly occupied in superintending the shearing of my own flocks, nothing further to my knowledge was done about the cattle while I remained up the country.  Mr. Were was present before the Bench at the investigation in the case of Coleman and Grover, and the order of the Magistrates respecting the cattle in question was equally directed to him as to me, and he acted in my absence under these orders.  And here, Gentlemen, I must beg to state, that on the court day above alluded to, a conversation occurred with the Magistrates, Mr. Were, and myself, as to the value of the men's cattle then running wild in the bush, and what credit ought to be given, as they were indiscriminately collected.  Gentlemen, a value was put upon them per head, but what that value was I cannot say, and it was in consequence of my forgetfulness and Mr. Were's uncertainty on that point, that I wished him to see the Magistrates on the matter.  Gentlemen, some of these cattle were, it seems, killed by order of Mr. Were to secure them as they were individually brought into the stockyard, he being fully aware of my claim against Coleman and Grover, and no doubt under this impression, he conceived he had a right to satisfy that claim by appropriating to my use so much of their property as was necessary for its liquidation; but were they killed furtively? is there a single animal unaccounted for? what then becomes of this mighty matter of cattle-stealing? was there, I again ask, any attempt at concealment? was not an entry made in my farm books of every animal appropriated? and may I not ask any man of common sense, whether a better course could have been adopted with wild cattle?  On again visiting my farm in July or August last, I found Mr. Were in so weak a state of health, that I was unable to obtain from him any information respecting the cattle, or any other matter of business; but I requested that as soon as he should be able, to get in and muster the cattle, and that he would by no means neglect it.  After that, I came to Sydney, and was not at my farm again until the beginning of last November; on the day I left Sydney to go to the farm, Coleman called on my and enquired about his cattle, I told him I had nothing to say to him on the subject; that he must apply to the Invermein Bench for the information he required; and, Gentlemen, I would press this fact upon your attention as evidence even if it stood alone, that the whole of my acts in the course of the proceedings now before you were open - that I concealed nothing, and wished to conceal nothing; the authority under which I undertook to act in this matter, was the authority of a Bench of Magistrates; to that authority alone I was accountable - and to it I referred the man Coleman for the information he required; where was the attempt at concealment here?  If Coleman had a complaint to make I myself told him where he might make it!  I told him to apply to the Invermein Bench, and he went away.  On arriving at my farm in November, one of my first acts was to enquire of Mr. Were (who still continued dangerously ill) if he had got in and mustered the cattle; the information I received was by no means satisfactory, and, Gentlemen, it was the dissatisfaction I felt at what I then believed to be Mr. Were's neglect, which caused the angry conversation of which Mr. Stokes has spoken in his evidence to-day, and which also caused me to engage Mr. M'Naughten for the express purpose of collecting and mustering my cattle; this duty, Gentlemen, I would have performed myself, but having late in an evening received a letter requiring my immediate presence in Sydney, I came away before daylight the following morning, accompanied with Mr. Stokes.  On that gentlemen becoming my agent, in contemplation of my departure for Europe, I handed him over all my books and papers, with instructions to arrrange [sic] all matters connected with my estate, and particularly this very affair respecting the cattle of Coleman and Grover.  Mr. Stokes knows that I considered myself in the light of an agent to the Invermein Bench of Magistrates in this matter, and he knows also that I evinced the utmost anxiety, when I was at Puen Buen, to have it finally and properly arranged.  Gentlemen, such is a brief, but in the presence of god, I aver, a faithful outline of all the circumstances within my knowledge connected with the alleged crime for which I am this day placed on my trial before you!  Can you, Gentlemen - can any jury discover even a shadow of guilt throughout the whole course of my acting in this matter?  Then why do I stand here to day?  Gentlemen, I will not now say why; but the time will come - the occasion will present itself - when I may and will denounce the motives in which this prosecution has originated - when I will show that my real prosecutor has not been in court to-day  -  when I will prove that it is a political prosecution - a base attempt to depreciate my character for the purpose of nullifying my complaint to His Majesty's Ministers.  Gentlemen, if you should be of the opinion that I have allowed myself to be betrayed into too great a warmth of expression, you will, I am sure, admit that it is a natural warmth; hunted down, as for some time past I have been - standing in a felon's dock, without the shadow of a case against me - can you wonder that I address you under excited feelings?  Could you feel surprised even if I were to denounce publicly, and by name, those parties whom I believe to have been the occasion of this outrage upon the character and feelings of a respectable colonist?  Throughout the whole history of public transactions there will not be found, even in this Colony, an instance of political atrocity to match that whereby it is attempted to crush me.  Gentlemen, since the commencement of an enquiry so absolutely unprecedented as this certain cattle have been seized at Liverpool Plains, and sold by order of the Crown Officers, as the property of these men, Coleman and Grover; according to Mr. Were's statement, three drafts of my cattle - collected together after very great pains - were sent off to a station of mine at Liverpool Plains, which I had formed for the purpose of a general depot, to secure the cattle as they could be collected.  Gentlemen, do not, I beg of you, forget what I have already stated - namely, that the cattle claimed by these men, Coleman and Grover, were running with my herds, and over my estates; at the time when the cattle thus collected by direction of Mr. Were were sent off to the depot station at Liverpool Plains, they were so collected in consequence of the herds generally being in a very weak condition for want of food and water, owing to the then prevailing drought; of the lots so sent it since seems that some of the cattle belonging to Coleman and Grover formed a portion; but, Gentlemen, does it appear that I was a party, in any way, even to the collection of these cattle?  I do not mean to say that had I been on the spot I would not have acted just as Mr. Were acted; I think I would; but I was not on the spot; I believe that Mr. Were acted as he did to prevent further losses from deaths and cattle stealer; I believe that such were the motives which influenced him.  Gentlemen, the main fact of this part of the case to which I desire to call your particular attention is this - namely, that the whole of the cattle which had been seized and sold by the Crown consists of those very cattle collected and secured by Mr. Were upwards of twelve months ago, and herded by my stockmen until the remaining portion were secured.  Gentlemen, these are said to be only a portion of the cattle belonging to Coleman and Grover, yet how is it that, after so great a lapse of time, no more have been secured?  If it was in the power of the Magistrates, at the time these cattle were order to be confiscated, to have done without my assistance - if it was so easy to collect cattle on my estate and those that spread over the adjoining country, how is it that the law officers have not yet caused means to be taken to gather in the remainder, which are said to be still running with my cattle?  Why does not the Crown look for the rest?  Why is it that these which my people have collected and herded have alone been disposed of by the Crown?  Why were they alone pounced upon?  In what way does it appear that there was any attempt at a fraudulent conversion of these cattle to my use?  I had authority to collect them; but how could they be collected except with my own cattle?  They were driven with my own cattle publicly, and to a well known run.  The were not secreted; their brands were not altered; they were ready to be given up whenever required.  And let me ask the Crown Solicitor whether it was owing to any diligence or superior sagacity of his that these cattle were found out and taken by the Crown into their possession, or whether it was not ascertained on the first enquiry?  But it may be alleged that the cattle seized by the Crown realised high prices when sold.  What had I to do with that?  At the time they were collected they were almost valueless; their present value is owing solely to a rise in the market.  If the cattle now claimed by the Crown had been impounded and sold at that period when they were recommended to be confiscated, the Crown would, in all probability, by now indebted to me.  Gentlemen, if the object of the law officers really was to protect the rights of the Crown, how is it that they have not taken any steps to collect the remainder of these cattle?  They have mow much finer weather for the purpose than the end of 1835 and the beginning of 1836 afforded.  Why do they not, then, take active measures to get in the remainder of the cattle?  There are still about five hundred head of my cattle yet uncollected; and, no doubt, among them many more of Coleman's and Grover's.  Then, let me ask you, why, with all the alleged anxiety to preserve the right of the Crown, these cattle have not been sought after?  Gentlemen, it is because the Government originators of this prosecution know that they could not find these cattle, or it they could find them, the cost of doing so would be more than the cattle are worth.

But, Gentlemen, I will not trespass upon your time by pursuing this theme; I will, as briefly as I can, refer to the facts which I have already stated to you.

My defence amounts to this, that I was the mere agent of the Invermein Bench in the matter which is the subject of this enquiry; and that I have never yet been applied to by the Bench for any accounts or any explanation respecting the course of proceedings I adopted, thought I was always prepared to render my accounts, had it been demanded.  Was not the authority of the Magistrates to take possession of these cattle, under the circumstances I have detailed, sufficient warrant for me to act in the matter?  Was anything done which that authority did not fully sustain?  Was there any concealment - the very essence of conscious guilt - attempted?  Why, Coleman and Grover branded the bullocks themselves in the presence of a Mounted Policeman - who then had them in charge?  Was there any secrecy here - anything denoting a consciousness of wrong?  Gentlemen, why did I interfere in this matter at all?  I will tell you, - the Bench of which I was a member directed that the cattle in question should be confiscated to the Crown after the payment of all just debts due by the parties who claimed a right to them. I was a creditor of those parties - the cattle were running on my lands - I only, or some of my people, could get them in - who then so fit a person as myself to be invested with the authority under which I justify my acting in this matter?  Creditors of individuals who die intestate are almost daily invested, by this Honorable Court, with the power of administering to the estate and effects of the deceased; and would it be asserted that even if the party so administering was guilty of an irregularity, arising from ignorance, or any other hones conviction in satisfying his own claim first, that he would be guilty of felony?  At the time the tickets-of-leave of these men were cancelled, they were in debt to me to the amount of about fifty pounds; independently of which I afterwards paid cash (admitted by them as just debts) on their account, amounting to about twenty pounds more.  I credited them with seventeen pounds ten shillings for the colts and working bullocks - their full current value at that period - but still there remains a considerable balance due to me from which, the value of the cattle slaughtered during my absence in Sydney is to be deducted.  Is this felony?  And Gentlemen, I ask you whether I could have supposed that when the Magistrates authorised me to pay just debts, they specially excepted the just debt to myself?  Had I not, in fact, a lien on the property of these men for rent and sundry other claims which have not been attempted to be disputed?  What are the expressious [sic] in the letter of the Magistrates to the Government?  - "We have further directed that the cattle, the property of these individuals may be confiscated to the Crown, after the payment of just debts."  The Government, in the absence of all directions to the contrary, must be assumed to have acquiesced in that direction of the Magistrates.  Without my assistance it would have been in vain for the Magistrates of Invermein to order these men's cattle to be collected for the purpose of confiscation - as I have already told you, they were and still continue on my runs and amongst my herds - they could not have been got in except by me or some of my people.  That task I undertook at the request of the Bench.  Three Magistrates who were present at the  time, state that I did so.  These gentlemen are Captain Dumaresq, Doctor Carlyle, and Mr. Potter M'Queen.  Their testimony individually ought at once to have put an end to this case; but no, there was an object - a political object to be gained by exhibiting me in the felon's dock.  The very day afier [sic] the decision of the Bench in the case of these men, I credited them in my books with the value of the working bullocks and colts - in thus acting I have followed the spirit, if  not the very letter of the Magistrates directions.  I have acted upon their authority, and notwithstanding Gentlemen, I this day stand arraigned at this bar!  Even at the unprecedented enquiry which has led to this trial - unprecedented, not only in technical forms, but also in the temper and spirit displayed in its management, and other circumstances by which it was characterised, I afforded every information required of me.  I shrunk from no investigation; on the contrary, I courted it - and handed several written documents to the Bench for the purpose of enabling them to comprehend the merits of the case and the motives under which I acted throughout.  From first to last, I have felt and manifested the utmost anxiety to have the matter satisfactorily concluded.  Mr. Were and I had actually quarrelled in consequence of my belief that he had now been as diligent as he might have been in arranging these matters.  Does this look like conspiring with Mr. Were?  No - but it appears the evident wish and intention to couple Mr. Were with me for the sole purpose of depriving my case of the benefit of his evidence, which evidence alone would have exonerated me from all improper motives, and at once have cleared up my character of all suspicion or fraudulent intent.  I say the most diabolical part of these proceedings is the putting Mr. Were in the dock with me to prevent my having the benefit of his testimony.  Gentlemen, I have nearly concluded all I have to offer in refutation of the vile charge which I now stand here to answer.  But as my address has been necessarily lengthy, and as my frequent appeals must have diverted your attention from what I consider the principal features of my case, I will recapitulate briefly.  First -

By drawing your attention to the unnecessary, harsh, and unprecedented manner

it has been got up by taking depositions concerning this matter in my absence.

By sending paid Military Magistrates with the Crown Solicitor as prosecutor to enquire into it.

By stopping Mr. T. P. Macqueen's evidence proceeding, when found favorable to me.

By refusing to examine my accounts which was necessary before determining the case.

By depriving me of Mr. Were's evidence.

This, Gentlemen, bear in mind, was a departure from the customary mode in criminal cases, and must have been for a particular purpose.  It was my anxiety that you should be made acquainted with even the most minute details, which induced me thus to trespass on your patience.  Such details I have presented to you; and, relying on your justice, I ask whether you can find the slightest grounds for placing me in the position in which I am now standing before you?  Gentlemen, I have established the fact -

That I acted as an agent of the Government by order of the Bench of Magistrates, who of themselves are minor judges,

That these men's debts were ordered to be paid by the Bench, and I was deputed to see this done.

That they were my debtors.

That in my books credit was given for the value of bullocks and colts.

That those books are authentic documents and have been in Mr. Stokes's possession.

That my accounts would have been produced when applied for by the Bench.

That the working bullocks were openly branded on the day after the decision of the Bench.

That they were branded by the two men themselves in presence of the Mounted Police.

That I had a lien on the property.

That throughout there has been no concealment.

That on Coleman's application to me in Sydney I referred him to the Invermein Bench; which shews that I had no intention to defraud him or the Government, or that I had any felonious intent.

Gentlemen, I have ever borne the character of an honest man - of this I challenge contradiction; and feeling that I may do so fearlessly, is it too much to ask you whether I, already possessed of tolerably ample means, would for the sake of two or three head of cattle, steal - blast my own character, and render miserable for life those who look up to me for countenance and protection?  Can you credit that another respectable man would descent to aid in a purpose of the kind merely for a portion of the paltry value of the cattle spoken of to-day?  Gentlemen, need I say more?  I feel that I need not.  Yet whatever may be your verdict, let it, I implore you, be founded upon a conscientious view of the whole merits of the case.  Send me from this place untainted, even by suspicion, or consign me to infamy for life.

Gentlemen, I have nothing more to urge - my case is now with you.  You are my judges, and I place myself with confidence in you hands.

William Bell Carlyle, Esq., J. P. - In 1835 I was one of the Invermein Bench: I was present on two days of the proceedings against Coleman and Grover: I remember Mr. Bingle being examined: the men alleged they had branded the cattle under his orders, and the case was remanded for his evidence: their cattle were ordered to be confiscated after the payment of their just debts; the men were originally charged with stealing cattle: I have seen nothing of the proceedings of the Bench for the last twelve months, since I left the district; after the sentence was given, Captain Dumaresq observed, "how are we to get these cattle in:" I do not know whether Captain Dumaresq spoke to Mr. Bingle or Bingle to Captain Dumaresq: it was agreed he should get them in, as it was conceived he was the only person who could do so: we agreed he should get in the cattle and carry the sentence of the Court into execution: of course it alluded to the payment of the just debts and the confiscation of the cattle after the debts were paid: that I understood to be part of the sentence: I should think that Mr. Bingle's branding three of them would be the best way to secure them for the crown: Mr. Bingle has been a Magistrate many yours, and I always considered him an upright honorable man, and an active Magistrate: so far as has reached my observation, Mr. Were is an honorable active young man.

Cross-examination. - I was two days at the Bench - I might have been present without taking part of the proceedings - we sometimes sit in two courts for the despatch of business - Mr. Bingle did not sit as a Magistrate - I do not recollect with whom the proposal originated - it was one of the inducements to employ Mr. Bingle to get in the cattle that it would be done speedily - I thought they would have speedily been made available - I think Mr. Bingle said that they owed him £60 - I sold cattle a twelve month ago which the purchasers have not yet got - I did not consider there was any power in the Bench to kill any of the cattle - it is impossible for me to judge of the mind of another person - I considered that after the cattle were collected accounts should have been sent in - I recollect being very much struck at their having more cattle than they could possibly have come honestly by - the men were not perhaps aware they were going to lose them when they specified the number - I never heard anything about the working bullock - told the commencement of these proceedings I knew nothing of the working bullocks - I do not recollect any one suggesting that the dead stock would be sufficient to pay all debts - I was much astonished to hear that the cattle were slaughtered.

Re-examined. - I do not see what interest Mr. Were had in slaughtering the cattle when they were entered in the public books of the farm - they might have easily antedated an order for the delivery - but not one would buy Coleman and Grover's cattle with Mr. Bingle's brand on - had I been taking charge of these cattle I should have put a distinguishing brand on them - I always considered Mr. Bingle was to carry the orders of the Bench into execution.

By the Court. - I perfectly recollect what was said on the 4th November after the sentence was passed - no time or place was fixed or appointed at which the cattle should be got in - nothing was said that I recollect about selling them at the pound - I cannot say whether this sheet of paper was entirely when I signed the decision - I am not aware of any memorandum to Mr. Bingle - it was left entirely to Mr. Bingle to carry into effect the sentence of the Bench.

Mr. Michael Macartney. - I am a surgeon: I was present in November, 1835, when Coleman and Grover were before the Bench - the decision of the Bench was that the tickets be recommended to be cancelled - Coleman owed me £4 16s., and I applied to the Bench to know how I was to be paid, and I was told Mr. Bingle had authority to pay debts and collect the cattle - he has paid my - we have had a settlement, and Mr. Bingle has credited me with the money - Coleman told me in the presence of the Chief Constable, the day he was going down the country, that Mr. Bingle would pay me.

Cross-examined - The Chief Constable is here Captain Dumaresq told me that Mr. Bingle was authorised to collect or receive the cattle and pay the debts - Mr. Bingle said a considerable sum was due to him - I have been living with Mr. Bingle but not for the last two years.

Re-examined - Cattle at that time were very cheap - cattle were lying in every water hole - they had got there and could not get back to feed.

Thomas Young - I am a tailor - I knew Grover and Coleman - in 1835 Grover owed me £3 10s. 6d., and Coleman owed me £5 for clothing and a little money lent - I recollect their losing their ticket - they sent for me to Mr. Bingle's - they admitted that they owed me the money, and said that Mr. Bingle had orders to pay all just debts - if Grover has sworn he only owed me £1, he has sworn what is false - directly I took my account to Mr. Bingle he have me credit in his books.

Cross-examined - He owed me £3 10s. 6d. for clothes - there was a waistcoat (articles enumerated) - I saw Grover the Sunday after I was paid, and I told him I was paid - Grover owed me the money for eighteen months - there are gentlemen in the Court at this time that have owed me money for clothes for eighteen month - Grover had paid me money before - at the time he came from being married he paid me £2 on account of a suit of clothes he went down to get married in - I always considered the money sure - I put my signature to the account when Mr. Bingle paid me, a short time after the tickets were taken away - Coleman was in my debt longer than Grover - I never asked Coleman for the money - I saw them when they were in the lock-up, and they told me whatever happened I should be paid.

Alfred Charles Palmer - I am servant to Mr. Bingle - I knew Coleman and Grover - I recollect seeing Coleman on the 4th November - he came to my master's house and said he wanted to know what become of his cattle - my master said he knew nothing about it and referred him to the Bench at Invermein - I met him the same day - he told me he had seen the Governor while at Newcastle, and spoke to him personally.

Cross-examined - I recollect it was the 4th of November - my master left the house immediately after he had spoken to Coleman.

Martin Herring - I am a farming man - overseer to Mr. Docker - I have been a fencer for fourteen years - (at the suggestion of the Court this witness was not examined any further.)

This closed the case for the defence.

The Attorney-General re-called David Grover - I never owed Young more than from eighteen shillings to a pound - I never had more than one pair of trousers from him - I got a wedding suit from him, and paid him £3 5s. for it - I never owed him for more that the trousers - I never recollect is telling me that Mr. Bingle had paid him - I never had the trousers from him - I should have owed him the money if I had taken the trousers - Young purchased a bedstead from me, which he paid for.

Cross-examined - I never asked my master to pay Young anything  - I told him I owed Young eighteen shillings, which he said he would pay - I came out here for fourteen years for receiving stolen property - I have got three years and eight months to serve - I do no not [sic] expect to get my ticket-of-leave again on the issue of this.

William Ledge - I recollect the tailor buying a bedstead and some glass - I do not know what he paid  - I used to keep Young's books - I made out in account of £3 10s. for Coleman and Grover - the Sunday after their tickets were taken away I heard them ask Young if the account had been presented to Mr. Bingle, and Young said it was all right, on which Grover said, "if it was £20 you would be paid."

The Attorney general said that he should claim his right of reply.

The Acting Chief Justice - I cannot deny your right Mr. Attorney.

Mr. Sydney Stephen - This is the first time, may it please your Honor, that I ever knew a Crown Officer exercise his right of reply in a case like this.

The Attorney-General said that he considered it right and proper after the imprudent and ill advised line Mr. Bingle had adopted in his defence, to insist on his privilege of replying on the prisoner's case.  He should consider he was unworthy to wear the gown upon his back, or hold the situation he had the honor to fill, if he allowed  such remarks as had been made by Mr. Bingle to pass unnoticed.  The line of Mr. Bingle's defence went to accuse him (the Attorney-General) of being the tool of some person behind the scenes, and insinuated that the instigators of the prosecution were actuated by political motives; and he would not allow the case to go to the Jury with the odium which such a charge involved.  Whatever situation he might be placed in, he should always have too much regard for his character, both as a private man and as a public man, to be made the tool of by any one.  Although it was not stated, the insinuations was too broad to be misunderstood, that in instituting the prosecution he was actuated by other than bona fide motives.  He would only reply to that portion of Mr. Bingle's speech which had been made for him by some political firebrand, that stated that the prosecution was brought forward from political motives; thus converting an ordinary prosecution into a political case.  In the exercise of his duty he would make no difference between a gentleman and the meanest person in the Colony.  Since he had come to the Colony he had kept away from all politics; and while the functions properly belonging to a Grand Jury were lodged in him, he felt it his duty to do so.  He would "rather be a toad and feed on the noisome vapour of a dungeon" than be a tool to any man, and when any man wanted a tool he must not come to him.  He would not bind himself to any person, and he denied the right of the Governor or any one else to direct him to prosecute any person, and if the Governor did attempt so to direct him he would be stepping out of his duty; if the governor did so he would tell His Excellency that he was infringing on his province.  He would never put any man on his trial against whom he did not consider there was a prima facie case.  As to the prosecution being a political one, it was very evident that the defence was a political one; it was a weak, paltry, miserable defence.  The foolish document had been written out of the Court, and assumed facts directly opposite to those proved in evidence.  What was the evidence of Captain Dumaresq (the learned gentleman then spoke to evidence at considerable length and continued).  "So help me God."  Gentlemen, I put this case to you apart from all political feeling and from a conscientious sense of duty.  Who or what is Mr. Bingle that the government of this Colony should wish to crush him?  What does the government care whether Mr. Bingle is friendly or hostile to them?  The learned gentleman concluded by saying that he thought he had clearly proved a case that authorised him to call on the Jury for a verdict of Guilty.

His Honor commenced his summing up by observing, that the King's Attorney-General in the exercise of his undoubted right has replied on the evidence.  It was undoubtedly his right, although it was the first time he had ever heard an Attorney-General exercise the right.  The Attorney-General was probably induced to do so, in consequence of the topics urged by the prisoner in his defence - that the prosecution was instituted from political motives; but there certainly had not been anything proved before them that day, to shew that the prosecution had been instituted on any other than public grounds.  Had there been any evidence to shew that he gentlemen at the bar had been persecuted from political motives, he would have been the first to interpose and protect them; but it certainly did not appear that the prosecutors had been actuated by anything but an abstract love of justice.  A Court of Justice was always a bad place in which to manifest political feeling, and especially a Criminal Court of Justice, wherein politics should never be allowed to intrude themselves.  As one who had the honor to hold a Commission as one of the King's Judges, he would not allow the temple of justice to be polluted by the entrance of political feeling.  Even at sixteen thousand miles from our native land he trusted that justice could be as faithfully administered as in England; and he joined with the Attorney-General intreating [sic] the jury to dismiss from their minds all that they had heard out of doors respecting the case; for they were to decide according to the evidence only; and he trusted that he jury would apply their minds to the case with the same impartiality that they would if the prisoners were the meanest of the Kings subjects, instead of being the persons they were stated to be; they were not to bear in mind the rank of the parties, but coolly, calmly, and dispassionately determine the case.  There could be no doubt that if the prisoners got possession of the cattle to dispose of, and afterwards converted them to their own use, they were guilty of cattle stealing.  There were two positions in the case: first, had the prisoners a felonious intent ab initio? did they get possession of these cattle with intent to covert them to their own use? if they did, they were certainly guilty of felony; but he was bound to tell the jury there was no evidence in support of that position, and they must therefore fall back on the second position, which was, that if a person had the bare charge of property and afterwards converted it to his own use, he was guilty of felony, and it was to this point he must draw the attention of the jury.  The case certainly was, whether, having a bare charge for the benefit of the crown, they converted the cattle to their own use, not intending to account for the property they ad so converted.  It certainly appeared that the prisoners were employed as agents; had they so conducted themselves, as to lay themselves open to a criminal charge? if the prisoners had had a specific charge and had abused it, they would come within the meaning of the cases quoted.  The question would simply have been, had the prisoners applied the cattle for the specific purpose of for another purpose? but it appeared from all the witnesses that the prisoners had had a general and not a specific direction; and then arose the question where, in what manner, at what place, and at what time, the cattle were to be collected? and on this point there was no evidence of the precise terms; all was left to the impression of parties; no one spoke positively; the witnesses all said it was understood - that it was their impression - that the cattle were to be delivered at the pound, but there was no injunction.  If the prisoners had had any authority to dispose of the cattle, and ultimately account to the Crown, it was clear there could be no case of felony.  In looking at the case one very important point was, had there been any attempt at concealment?  If there had been any attempt to conceal the property, then the Jury might have thought there had been a design to commit felony.  Look at the time the three bullocks were branded; they were branded openly, and the conduct of the accused, in this respect, was fair to the world.  So in the case of the beasts that were slaughtered; they were killed in the light of day; sometimes some of the Mounted Police were called in, from they being very good shots, to kill the beasts, and an historical statement of the whole matter kept in a book.  If the parties had intended to commit felony would they have acted thus?  Would they thus subject themselves to the chance of being discovered?  It was strange, also, that none of the parties were able to say on what terms the cattle were delivered to Bingle; they could only speak to their impression.  If Mr. Bingle had really and bona fide ground for believing that he was authorised to sell the cattle, and account for them afterwards, the charge of felony must fall to the ground.  It was alleged that the prisoners had given in no accounts; but then on the other hand it was not alleged that the Magistrates had called for any account.  His Honor then recapitulated the whole of the evidence, pointing out as he went along the different facts that appeared to shew there was no felonious intention on the part of the prisoners; and remarked on the unusual circumstance of a reply from an Attorney on Evidence, and the uncourteous behaviour of Mr. Day towards Mr. Bingle and towards the Magistrates at Invermein, with respect to the manner in which the original depositions were taken; and towards the end of his summing up, which was both laborious and minute, observed, that from the evidence, the fair presumption was, that something might have induced Mr. Bingle to believe he was authorised to sell the cattle.

At a quarter before three in the morning, the Jury retired, and, after an absence of an hour and a quarter, returned a verdict of Not Guilty, but appending a remark thet [sic] they could not dismiss from their minds that the prisoners had acted with great impropriety throughout the transaction.[2 ]

 

 

Notes

[1 ] See also Sydney Gazette, 9 May 1837; Australian, 12 May 1837; Dowling, Proceedings of the Supreme Court, Vol. 136, State Records of New South Wales, 2/3320, p. 115, and Vol. 137, 2/3321, p. 1.  For editorials about the case, see Sydney Gazette, 13 May, 3 June 1837; Sydney Herald, 25 May 1837.  One of these editorials led to an action for attachment for contempt of court: see Ex parte Attorney General, 1837.

For earlier litigation, see Bingle v. Stephen, 1836.

[2 ] The Sydney Gazette, 9 May 1837, reported this as ``In returning this verdict the Jury cannot wholly deny that the conduct of the prisoners has been marked with much impropriety." Dowling, Proceedings of the Supreme Court, Vol. 137, State Records of New South Wales, 2/3321, p. 45 recorded this, apparently verbatim, as the jury saying ``the conduct of the prisoners in this case has been marked with great impropriety".

 

 

Published by the Division of Law, Macquarie University