Forbes C.J., 21 November 1827

Source: Australian,  23 November 1827

This witness underwent a severe cross-examination by the prisoners' Counsel, during which he admitted that he had been implicated in so many transactions of cattle stealing that he was unable to state the number; and further, that on his evidence there were at present upwards of twenty persons in charge in the Sydney gaol on charges of cattle stealing, in which he had himself taken an active part.

ISAAC SMITH examined - I recollect about two years ago I went to the prisoner's, Joseph West's, house.  I went there for the purpose of getting a trifle of money due to me.  In crossing a place called Rouse's Flat, on my way to the prisoners' farm I heard the report of a gun, from which circumstance I was induced to cross the hills leading to the prisoners' house, and in my way thither passed by their stock-yard.  I observed Michael Power, the last witness, and Joseph West, one of the prisoners, employed in the yard, Power having a knife in his hand, in the act of skinning a bullock which lay dead, and the other assisting in holding up one side, as it seemed to me, in order to facilitate Power in his operations.  The witness then went on to state that his errand to the farm was to see the younger prisoner about a debt due to him, which the latter, in a close conversation, promised to pay by giving an order for the amount, on a person living in the neighbourhood.  Witness consented to this arrangement, and was about going away, when Power called him back, and asked if he would not "sign his hand to it?"  This is a "cant" expression, and witness understood from it that some "cross work" was going on; he therefore refused the invitation, observing, he did not belong to the same branch.  Witness is a shoemaker by trade.  There was a brand on the beast, which witness saw in the hands of Power and the younger prisoner.  It appeared to resemble a figure of 10.  [Here the witness described the brand on paper.]  It was a large bullock, and might weigh so much as five cwt., and worth from 6 to 7l.

Cross-examined - Witness saw no other person in the yard than Joseph West and Power.  The stock-yard is about 40 or 50 rods from the house, and is situated on a hill, from which persons have a good opportunity to distinguish any one going from thence to the house.  Did not see any one leave the stock-yard and go towards the house.  The time witness alludes to of going on the farm was between nine and ten o'clock on the morning of a week day, about two years ago.  Had no idea that any thing wrong was going on with regard to the killing of the bullock.  The brand of the beast was quite common in the neighbourhood at the time.  Prosecutor lives close by.  Witness belongs to a road party stationed at the Fish River at Bathurst.  Has seen Power, the informer in this case, in Sydney, but has never spoken to him on the subject of this business.  Has once been punished for speaking about his own property.  Swears he was never punished for any fault whatever.  What he was punished for was for making use of an unguarded expression, when speaking of the sugar and soap, which formed part of his weekly rations, being stopped from him by the Commandant of the settlement.  The charge alleged against him on that occasion, was for saying, that Captain F--- had gone to Hell.  Witness had previously heard that that person was dead.  It was sworn by witness's overseer that witness had declared he saw Captain F--- go off in a flame of fire, which passed over his house.  Swears this was the substance of the charge.  He was punished with one hundred lashes for it.  The overseer misrepresented what he had said.  Witness expressed himself to this effect: - On hearing of that person's death, he said, "then my soap and sugar has all gone to Hell together."  Witness will not say whether he ever went before a Magistrate, and made a voluntary declaration that he had stolen three sheep.  Did not take any particular notice of the beast (the subject of this prosecution) at the time he saw it in the hands of Power and one of the prisoners.  Cannot say on which hip of the beast the brand was.  Had a conversation with Power in the course of yesterday, but it had no reference to this trial, or the subject matter thereof.  In a previous conversation which witness had with Power, he accused him of withholding part of some testimony he had given in this case on his examination before the Magistrates.  Power charged him with wishing to exculpate the old man, meaning the elder prisoner.  Witness has been twelve years in the Colony, and is still in government employ.

Re-examined - Has never heard the prosecutor called Samuel Orton Hassal.  He is generally known by the name of Mr. Samuel Hassal.  Did not see the elder prisoner in the yard at the time the other prisoner and Power were employed about the bullock.

TIMOTHY FOLEY deposed; that he lives at Bathurst.

About two years ago, in the months of October and November, he passed the prisoners' station, and saw Power and two other men in the prisoners' stock-yard.  He distinctly saw the faces of Power and the younger prisoner; but the third person he did not see, nor take notice of.  Power made some trifling observation to him, as he walked by.  It did not extend beyond asking witness where he had been, and whither he was going.  The prisoner Joseph West, was assisting Power at the time, in skinning a bullock, which lay before them in the stock-yard, and seemed to have been just then killed.

Cross-examined - Witness did not go into the stock-yard.  Took no particular notice of the beast, or any brand it might have borne.  Has since been called upon by Power to give evidence in this case.  Has never to his knowledge seen the younger prisoner since, until to-day.  Cannot say what is that prisoner's age.  He is a young man; but it is now two years ago since he saw him last.  Would not have known his person in passing him in the street.

Here the case for the prosecution having closed, the following witnesses for the prisoners were called; -

CONNOR HAYS deposed, that he is now confined in the Sydney gaol, under a charge of cattle-stealing, which has been preferred against him by the approver (Power).  Was in the service of the prosecutor in this case about two years ago.  Had charge of his cattle about that period; and, as was his duty, frequently mustered them.  Recollects doing so in the month of November 1825.  Knows that no cattle were missed from the prosecutor's run at that time.  Prosecutor branded his cattle O. H.  If a red and white bullock had been stolen off the farm, he must have missed it.

Cross-examined - there were between four and five hundred head of cattle on his master's run at the period alluded to; and an increase and decrease of stock, from various causes, were quite common.  Of the number of stock kept on the farm, no very exact account was kept.

MORGAN POOR deposed, that he is a native of the colony.  Lives at the Seven Hills, and is a land and stock holder.  The prisoner Thomas West had business to transact in the Supreme Court, which rendered his attendance at Sydney necessary.  He therefore chose witness's house, being an acquaintance, to stop at.  He staid there permanently for the following moths, from the early part of August to November.  Swears he was never off the farm for more than four days together, during that period.  Supposes the Seven Hills to be a distance of 120 miles from Bathurst, and between 15 and 16 miles from Windsor.

Mrs. MARY WEST examined - Is wife of Dr. West, Lives with her husband at South Creek.  In the month of November, 1825, they resided at Windsor.  The younger prisoner is witness's nephew.  There was a lawsuit pending between the elder prisoner and witness's husband about that time.  The younger prisoner was generally at Windsor every week in the month of September, October, and November, in the year 1825.  Saw him so frequently during those months, as to think it morally impossible he could have proceeded from Windsor to Bathurst, and return again without her knowledge.  Recollects this young man in company with his father, leaving Windsor, on their return home to Bathurst, in the month of November of that year.

JOHN BUTTERFIELD, constable, stationed at the Weather-boarded hut, on the high Mountain-road, leading to Bathurst, swore, that in the month of August, 1825, the two prisoners called at his place, on their way towards Sydney, and put up there for the night.  The elder prisoner slept in the house, while the other remained out all night in the neighbouring bush, in care of a herd of cattle which they were about driving in a direction for Sydney.

Mr. R. COOPER deposed to the elder West being in Sydney in the month of September, 1825.

On 23 November 1827, Forbes C.J. wrote to Governor Darling as follows (Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 120):

"I have the honor to inclose the precept which your Excellency signed, for the business of the present sittings of the Supreme Court, and to request that your Excellency will name an entirely new panel for the following reasons.

"The Crime of Cattle Stealing has been carried on to a great extent, within the last year or two; and it appears by the confession of Michael Power, formerly a Transported prisoner, but afterwards free in some form or other, that he and other persons, any of whom are free inhabitants of the Colony were concerned in the larcenies of Cattle from various owners and at many distinct times - From the character of Power his testimony is open to great objections and the nature of the transactions in which he has been engaged, does not allow of much auxiliary proof - It is desirable that as many different gentlemen who are required by the New South Wales Act to sit in Criminal trials in this Court should be placed upon the panel of Jurors, as the public service will allow both because it is just that the testimony of an accomplice, should be weighed as nicely as possible and because the impressions received by one panel either in favour of or against the credibility of Powers evidence, can not but have a very importance effect upon other cases, of which there are, I am informed, a great number untried, and in the course of being brought on during the present sittings."