[riot – assault – convict escape]

R. v. Roberts

Court of Criminal Jurisdiction

Dore J.A., 7 April 1800

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1798 - 1800, State Records N.S.W, X905 - 431

            [431] Thomas Roberts placed at the Bar

            Arraigned on and Indictment for Riot, Assault and Rescue to which he pleaded

            Not Guilty.

            John O’Neale being Sworn, Deposeth that on Friday Evening after dusk he was in his Hut at Toongabbie when a number of people came to enquire if a man of the name of Donnelly was there, to which he answered there was no such person. That several of them came into their Heart and the witness offered them believed to take a light and look thro’ the Room which they declined . That when they departed day strike one of the men belonging to the Hut, namely Robert McAlister. The Witness then demanded why they struck their men when the same Person (who is named Windsor) also struck the witness. That the witness returned the blow and they fought a few Rounds together. That a Second Scuffle arising the Whitney showed the Prisoner Thomas Roberts coming forwards with a drawn knife towards the Green they were fighting in. That the witness and Windsor at the time fell down together. On seeing this witness felt he had been cut across his Linings and Hip, and thinks the Prisoner gain him such wounds. But he then went into the Heart and asked Protection of the Piece Offices. But he saw no other person that the Prisoner with a Knife.

            Questioned by the Prisoner: Was there ever any animosity between us that could occasion you to think I overdue any ill will?

            Answer: No. I never had any Difference whatever with you.

            Question: Did you fall through the means of the man you were fighting with.

            Answer: I knew no other.

            Robert McAlister being Sworn, He poses that he belongs to the Hut of the foregoing witness that some persons came to enquire after one Donnelly who was not there. But he was knocked down by the Prisoner and saith that O’Neale was also knocked down by the Prisoner who held [432] held a drawn knife in his hand. Saith he saw no other person with a knife.

            Daniel McClees being duly Sworn, saith he is employed as a overseer at Toongabbie and that on Friday Evening last between the hours of eight and nine he was present at a Riot in Toongabbie of which he had Received some previous Intimation and understood it was to be against the Constables and peace Officer. That he saw John O'Neale fighting with another Prisoner, when he observed the Prisoner Come forward with a drawn knife in his Hand. That the Prisoner entered the Ring wherein the men were scuffling but would not take upon himself to swear that the Prisoner of that time held a knife. That he heard the Prisoner when he got into Ring, exclaim in a loud Tone of voice "Cut every B….r of them down" and immediately drew his right Hand across O'Neale's Back in with his left hand knocks said O'Neale down. That's he heard it said O'Neale instantly call out he was cut.

            Question by the Prisoner. Did you see any other persons with Knives

Answer: Yes I saw several and many were armed with sticks

            Alexander Seaton, being sworn, Deposeth that he was present when the Riot happened and that he saw the Prisoner strike James Windsor that after O'Neale was wounded as aforesaid, the witness who was an overseer at Toongabbie, entered the Ring, and desired the Prisoner to go home. That he then went to Mr Fitzgerald, who came around to quell the Insurgents.

            Bryan O'Connor, Surgeon, being Sworn, Deposeth that he attends the Surgical Department at Toongabbie saw the Convicts. That he was sent for in order to examine O'Neale's wounds. That it was a flesh wound and not mortal. That it was across the smalls of the Back, and appears to this witness to have been inflicted with a sharp Instrument with a knife or Sword.

            Rescue: Francis Holligan, constable of Toongabbie, Sworn Deposes that he had in his Custody on Friday Evening last one William Jones charged with having assaulted and obstructed him in the Execution of his Duty. That he was met by the Prisoner who told the witness he saw no Reason why he should take said Jones into Custody and insisted on his being set at Liberty. That a scuffle ensued and the Prisoner forcibly took away said Jones from out of the Custody of the witness and against his will. Thereby receiving him from the Hands of Justice.

            Question by the Prisoner. Did you ever know me guilty of any Riot or the like, or had I had any knife in my hand

            Answer: No, nor do I know you had any knife.

            [433] John Richards, being Sworn, Deposes that he is also a Constable at Toongabbie and on Fridays last between the hours of four and five in the Evening he met the foregoing witness Holligan, in whose Custody William Jones then was. That he went to Holligan’s assistance when a scuffle ensued and the Prisoner struck the witness and with others rescued the said Jones from the Custody of the said Constable. Further Deposeth that on the sworn day and before the above Rescue was effected he saw the Constable (said Holligan) take into Custody one Donnelly, when the Prisoner came from his Hut thro’ the Window with a Tomahawk. That the Prisoner went to Holligan and made several cuts with both hands at the Parties, but does not know whether said Blows were intended for or aimed at the Constable Holligan or his Prisoner Donnelly. But that these menaces of the Prisoner the said Donnelly was also rescued.

            Here closed the Evidence for the Prosecution.

            The Prisoner being called upon for his Defence, denies the Fact of the cutting but calls no witness. Throws himself on the mercy of Court.

            The court directed the Provost Marshall to enquire respecting the Character of the Prisoner and the Provost Marshall having reported that he knows nothing ill of him but rather ascribes this Insurrection to the Effects of Drunkenness. And Holligan confirming the Provost Marshall's Report the Court Acquits the Prisoner of the first Count in the Indictment

            But finds him Guilty of the second Count and sentenced him to receive the Corporal Punishment of Two Hundred lashes on his bare Back to be Publicly Inflicted at Toongabbie, and then to be discharged.