The Attorney General (with whom was Mr. Moore, the Crown Solicitor), without making any statement of the case to the Jury, called the following witnesses:-

Catherine Hayes - I am a married woman; my husband's name is William Hayes; I live at the Curryjong, seven miles from Richmond; my husband is assigned servant to John Town, of Richmond, settler ad publican; I am a free woman; I came out bond; I have no children alive; I was travelling from Bathurst after Christmas last, on my way to Richmond; I stopped at the Weather-boarded Hut, and asked the mistress of the house, Mary Heyling, for a bed, as the drays were gone before, and I could no came up to them; I had come with three drays, more or less, from O'Connell's Plains;  I was coming with them and another woman; my husband was not with me; before I got to the Weather-boarded Hut, about six miles, I met with a soldier; the Weather-boarded Hut is a place for travellers to stop at; the soldier I met went in with me, and bid me and the mistress of the house good night; the candles were lit after I went in; whilst I was there, a Mr. Brown came in; three soldiers also came in; one had a blue coat, a police coat, a great big coat, and the others were in red; three soldiers came in; I knew one of them; John Spillane, was one; I had my back to the fire-place when they came in; the soldiers called for some rum and some brandy; they asked me to drink, and I said I would take o more than what I had before; I had a glass of rum before then from Mrs. Heyling; they asked me to drink; I refused; the three men went out, and then came in again; I do not know how long they were out; when they came in, they began to measure one another with chalk against Mrs. Heyling's door, to see which was the tallest; this was in the kitchen, and I was present, standing with my back to the fire; one said to the other, "I'll bet you half a pint of rum that the mistress standing there (meaning me) is taller than me;" the three were just in a cluster at the door; they called to Mr. Heyling for a bit of chalk, and Mr. Heyling called me to him, and said, "Mistress, put your head under my arm - there is no harm;" I put my head against the door, turning my back, thinking there was no harm, and one of the men put his two hands under me, and said, "We have her now;" and I put my hand against the jamb of the door, and they took me a little distance from the door, out of the house; one had hold of me by the gown at the back of the neck, and the other with his hands under me, as I mentioned before; the man who knocked me down when we got out had a big coat on; the others had not; they told me to be quiet; they were all Irishmen; I called to Mr. and Mrs. Heyling, and said, "Will you not come and protect me? Heyling said, "I am very sorry I can't protect you; my own life is in danger;" one of the men who had a hold of me said to the other man, "Put him in, or I'll blow his brains out." They took me a little distance further; they said I was too near the house; they lifted me up and carried me further; I felt one of the men put his hand into my pocket; I said, "do you want to rob me? - there is not much in my pocket; one of them told the other to get my certificate (of freedom), and they would make me out a bushranger; I had previously left my certificate with Mrs. Heyling to take care of; they told me to be quiet; I said "no - if you are all Irishmen, did any of you come from a woman?" One of them said   -------, and the other said ------- ; the middle man said that he ------- ; I should not have known him, but that I cut him in the nose at the time he said that; then they knocked me down, and what occurred afterwards I don't know; they hit me on the head and kicked me; I became insensible; I don't know what happened after; another soldier came while the others were with me, and said they had done a very wrong thing, and that he would protect me and take me into the place; he asked me if I would go with him, though a soldier? I said yes, if you protect me till morning; he took me into the place where the rest of the soldiers were; I remained till morning in a bed; the man who took me in stopped up all night; nothing took place before I became insensible - till they knocked me down; they knocked me down with a round stick; my bonnet was tore, my cap full of blood, and I lost seven shillings and sixpence; as long as I had my senses they did not injure me, and after that I don't know what happened.

Examined by the Jury. - I cannot tell how long I was insensible.

Mary Heyling - I am a married woman; my husband's name is Heyling; I live at the Weather-boarded Hut, opposite the barracks, on the mountain road going to Bathurst; I know Mrs. Hayes coming to my place, and asking for accommodations on the 27th of January, in the evening; candles were just alight; she came to the house with a soldier; three more soldiers came in after; on John Costello, John Spillane, and Ormsby; I know the prisoners at the bar; one had a policeman's cloak, Costello; after they came in they had something to drink; they were talking Irish the greatest part of the night; I did not understand what they said; one said they would have the woman that night; I understood them to mean Mrs. Hayes, who was then in the room; this was said in English; the woman made answer, and said "she would bet them a shilling they would not have her that night;" then they got talking about chalking to see which was highest; another man, named Brennan, was present, who first came in with the woman; one man got up to measure his height against the door, and the woman likewise, and then one of the men lifted the woman up in his arms and took her out of the house; John Costello was that man; the three prisoners at the bar, and the woman left the house together; a little way from the door the woman called out for assistance, "Murder," as loud as she could call; I, and my husband, and the waiter went out; when I went out I saw one of the soldiers having connexion with the woman; this was John Spillane; me and my husband called out shame; the man with that took the woman up in his arms and carried her further into the bush, and told us to go away - to go home to our own place; when we heard the woman call out, my husband and I went out; the woman cried out for mercy, and said "For God sake, come to my assistance;" my husband said, my good woman I dare not render you any assistance; two soldiers, Spillane and Costello, followed us home them and said they wanted the woman's certificate, to see if she was a bushranger; they thought she was a bushranger; the old waiter said to them it ought to be reported to Captain Wright, the Magistrate; they looked up and down for the man that said this, and said they would have his head that night or in the morning; the two men then went away to the woman; I did not see any thing else, only I heard the cries of the cries of the woman in the course of the night, calling out for somebody to assist her - "Murder," we heard, - "Be merciful to me, that they must have come of a woman themselves;" Serjeant [sic] Millwood brought the woman to our house next morning about seven o'clock; she then had no bonnet, her cap was all torn; her ears had been bleeding; she asked me to take her into a room; I took her in; she showed me where she was bruised; she was bruised over her shoulder, and all over her back; I examined her; she appeared greatly injured, as if she had been ill-used; I did not observe any thing more than usual; I did not take any particular notice; I gave her some wine, and put her to bed; when I saw them take her away, it appeared to me, that they took her against her will; during the time the men kept company with her, they had four half-pints of rum and one half-pint of brandy, and she partook her share of this liquor; she did not appear to be tipsey; I don't know quantity of this she took; I was going backwards and forwards; I saw her drink two glasses myself, what more I can't say; she was in conversation a long time in Irish, and I did not understand what passed; a prudent woman would not, I think, have the moenouvres [sic] and manners she observed towards the soldiers; they seemed all very friendly together; she was laughing and talking with them all the time; I had never seen her before to my knowledge; she remained the whole of the following day, and went away on Sunday morning with Mr. Frazier's ration cart; she seemed better; she appeared to be very ill-used; I heard her screams and cries until between two and three in the morning, and it was approaching ten when she was taken out.

Cross-examined by Mr. Therry - This was on the 27th January I was examined first by Captain Wright and Mr. Savage, and then by Sir John Jamison and Mr. Druitt, on the Bench; the woman was examined before me; I was examined by Captain Wright at Penrith, and again when Sir John Jamison came up to our house, about six weeks ago; from 27th January, until about six weeks ago, this matter all rested; Sir John Jamison made a stir abut [sic] it then; she took the drink freely; I saw her take two glasses myself; I did not see any shyness; she did not refuse to drink; next day she did; she was merry, skylarking, wheeling a large stick about that she brought with her; she was joking and gammoning the soldiers; I heard one man say, he would have her that night; she said she would bet a shilling that he would not have her that night; she had the shilling in her hand, and wanted to put it into my husband's hands as stakeholder; the shilling was not staked; from her manner and behaviour, one could not think any other than that she gave encouragement to the soldiers; when I saw her outside, she was at the stock-yard corner; it was a light night; I could see her distinctly: I don't think she was insensible; she did not appear so; I did not take particular notice of her person; next morning she made no farther reference to the shilling; she said if the men would give her a new bonnet she would make it up with them; she said she would not mind it, if they would only make her a recompense for her bonnet; and she said, that, out of a regard for me, she would drop the matter altogether; and the matter was dropped, till Sir John Jamison took it up about six weeks ago.

Examined by the Jury. - The other men were at the door when she was carried out; but one man took her out of the house - the man in the cloak; I only saw one man on the top of her; there was no other man; when I first saw her she was crying out, and must have been aware of what was going on.

Cross-examination continued. - Shortly after this Capt. Wright called, and I told him it was all settled; she said she would not have stirred a step in it but at Sir John Jamison's instigation; I felt ashamed of having such a woman in my house, but it being a travelling-house I was obliged to receive her; she paid for half-a-pint of rum; she said she would pay me another time; she did not say she had no money; I only saw the shilling in her hand, and the money she paid the rum with.

Examined by the Court. - One of the men in the room she said she knew; his brother was a fellow-servant, and lived with her; they both lived together at Mr. Marsden's; she says she is the mother of ten children; she came along the road; I did not take notice of any teams passing the house before she arrived; she said the teams she was going down with were on before; she said she had stopped on the road for refreshment, and so parted company with the drays; she was sober when they came; I listened to see if she did call out; I should not have thought any thing of it if she had one out with the men; after she was on the ground she called out.

In this stage of the case, the Attorney General (after conferring with Mr. Moore, the Crown Solicitor), addressed the Judge, and said he could not carry the case any farther; and as the prosecutrix did not, by her evidence, establish the fact required by law to be strictly proved, so as to constitute the crime of rape, he felt it unnecessary to take up the time of the Court by examining other witnesses. On the part of the Crown, therefore, he would not press the prosecution any farther.

This intimation having been conveyed to the Court in a tone of voice not very audible.

Mr. Justice Dowling said, "Be so good, Mr. Attorney General, as raise your voice, in order that the grounds on which you mean to abandon this prosecution may be audibly proclaimed to and distinctly understood by the world. Do I understand you to say, that there are no grounds for the prosecution?

Mr. Attorney General. - No, your Honor, I do not say that there are no grounds for the prosecution; but as I have no means of proving, by other evidence, the fact essential to sustain the capital charge against the prisoners, I, in the exercise of my discretion, beg leave to retire from the prosecution. I find, upon enquiry, that the other witnesses I have do not supply evidence of the important fact which the prosecutrix herself has failed to prove. As the charge cannot, therefore, be sustained in strictness of law, I do not feel the propriety of occupying the time of the Court by calling other witnesses whose testimony cannot carry the case farther.

Mr. Justice Dowling - Am I to understand from you distinctly, Mr. Attorney General, that you mean to call no more witnesses?

Mr Therry, the prisoners counsel, her interposed, and submitted that where the King's Attorney General publicly gave up a prosecution against a prisoner charged with felony, it was not usual for the presiding Judge to press the accused; he therefore hoped that His Honor, who was supposed by law to be of counsel for the prisoner, would not depart from the usual course, whence the counsel for the prosecution intimated that he could not sustain his case.

Mr. Justice Dowling. - I have a public duty to discharge, Mr. Therry, and I am bound to know distinctly from the Attorney General, the ground on which he abandons the prosecution, in order that that ground may go forth to the world. The public eye is upon this case.

The Attorney General. - I shall call not more witnesses; I cannot prove the fact of penetration.

Mr. Justice Dowling. - Gentlemen of the Jury - After the intimation from the King's Attorney General, that the case against the prisoners cannot be legally made out, I apprehend you are bound to return a verdict of not guilty. In order to sustain a charge of this nature, where the lives of the pri-prisoners [sic] are at stake, it is necessary to prove carnal knowledge, against the will of the party, though distinct proof of seminis is not in all cases necessary. The Attorney General to whose hands this case is confided, as the public prosecutor, admits that there is no case for legal conviction. If the whole case had been submitted to you, there are some circumstances to which you attention must have been directed. One is the alleged staleness of the charge, which, in all cases of this kind is expected to be made promptly; and another, is the conduct of the prosecutrix (if believed) in laying a wager with the prisoners upon her own chastity, before the alleged violence was committed. What could any woman reasonably expect when such a Ganntlet [sic] is thrown down to three drunken soldiers? The terms on which (according to the evidence) she proposed afterwards to look over the matter, namely, for a new bonnet, would also be to be taken into consideration as a circumstance, shewing her own sense of the injury. Most undoubtedly, the poor woman has been grievously ill used, but the question for our present consideration is whether the prisoners are guilty of a rape, in the legal sense of the charge. It had been insinuated that this prosecution has been got up in some quarter or other, but with that we have nothing to do. We must deal with the case as it is now presented to us. The Attorney General publicly notifies that he cannot sustain the case, and therefore you have no other course left, but to find the prisoners not guilty.

Verdict - Not Guilty.