Supreme Court of New South Wales

[Index] [Search] [Introduction] [Contents] [Help]

R v Raine [1828] NSWSC 105 (9 December 1828)

Last Updated: 12 October 1998

[convict, pardon - convict escape - convict indents - convict, proof of conviction - imprisonment for debt]

This was a prosecution instituted by His Majesty's ATTORNEY GENERAL, against the defendants, for contriving, and aiding the escape from the Colony, of one James Doran, then being a prisoner of the Crown under an unsatisfied sentence of transportation.

The SOLICITOR GENERAL opened the case, and stated that the information contained six counts. The first count charged the defendants with contriving the escape of James Doran from Sydney; the second count, with contriving his intended escape from Sydney; the third, with aiding and abetting his escape from Sydney; the fourth, with aiding and abetting his intended escape from Sydney; the fifth, with contriving his escape from the Colony; and the sixth, with aiding and abetting his escape from the Colony.

Mr. Charles Nigh, a Clerk in the office of the Colonial Secretary, produced the indents, of the ship Atlas (4), Capt. Short, in which James Doran arrived a prisoner of the crown for life to this Colony; he appears to have been tried at London in the year 1819, on the 17th February; the ship arrived here on the 19th October, in the same year; the indent bears no official signature but is an assignment of the prisoners whose names are contained in it from the clerk of the arraigns in England to the Governor of the Colony; it is filed at the Colonial Secretary's as a record; the office of the Colonial Secretary is the usual record Office for documents of this nature which ate invariably sent with prisoners.

Mr. Thomas Ryan, a Clerk in the Office of the Principal Superintendent of Convicts, stated that he keeps a schedule of sentences of prisoners of the crown, from home, as well as Colonial; indents such as this produced are the only documents that come to the Colony with prisoners; this is the original indents of the ship Atlas (4); it contains the name of a person named James Doran, a prisoner for life; it is 8 or 9 months since I saw Doran; I knew him from the time of his arrival in the year 1819; he was in the service of Messrs. Berry and Wollstonecraft, and thence sent to Wellington Valley; I remember his coming to Sydney, as a witness on a trial, some time after; I saw him then, and knew him to be the same person; he came to the office to me enquiring after his conditional pardon, which had been granted by Sir THOMAS BRISBANE he, never had it in his possession; he repeatedly applied for it after it was registered, but Major Goulburn, the then Colonial Secretary refused to deliver it to him; it was regularly registered in the Colonial Office, but he never had it in his possession; the pardon bore date 23d November, 1825, No. 126; pardons registered in the same way, have been acted upon; I never knew another instance wherein a pardon was registered in a similar way, and not delivered;[2] it was a conditional pardon; a conditional pardon renders the holder free without the limits of the Government; I do not know when Doran left Sydney, or if he left it at all after the trial.

Cross-Examined by Dr. Wardell. -- The conditional pardon was in my hands; I filled it up; it was signed and sealed by the Governor, and then went to the Colonial Secretary; I think after that, Mr. Crawford took it out of Major Goulburn's desk to give it to Doran when he called, and I took his description, but Major Goulburn refused to put his signature to it; there is money paid on receiving pardons, in the nature of fees; Doran paid his fees on it; I never saw the pardon after the day Doran's description was taken; I believe Major Goulburn destroyed it, as Mr. M^cLeay made several enquiries and searches after it, upon Doran's applying for it to him; there is a register made of the names of persons who receive pardons; Doran's name is registered in the Colonial Office; we do not designate persons who hold conditional pardons prisoners of the Crown.

Re-examined. -- Pardons are signed by the Colonial Secretary as well as the Governor; Doran's pardon never was signed by Major Goulburn; it was never transmitted to Doran.

By the COURT. -- I cannot say whether a duplicate of the pardon was transmitted to England, but I rather think not. There were no duplicates forwarded in those days, only a list of names; I can't say whether it came to the knowledge of the Governor that there was any demur on the part of Major Goulburn with regard to Doran.

By Dr. WARDELL. -- It was not usual then to send home duplicates; all was done in Doran's case, as was done in the cases of persons who now enjoy freedom.

By the COURT -- At the time Doran's pardon was made out, it was usual to deliver pardons to the persons when they called for them; Doran's pardon was granted on the 23d November, 1825; he was then in the service of Messrs. Berry and Wollstonecraft.

Mr. George Kerridge; I am clerk to the Attorney General; I remember a trial for manslaughter taking place in the Supreme Court in February last; I remember a person named James Doran coming to the office several times; I understood he was a witness in the case; it is usual for all witnesses to report themselves at the Attorney General's office, on their arrival, and he reported himself about 10 days before the trial, and on the day after the trial, which took place on the 27th of February, he came to me and I gave him a certificate for his expenses in coming down.

Cross-examined by Mr. Stephen. -- I do not know he was James Doran, only from his own report; I do not know he was James Doran by Atlas (4).

Mr. John Weston, Superintendent of Hide Park Barrack, stated, that on the 5th of March, a person named James Doran reported himself to witness, and was received into Barracks; he reported himself from Wellington Valley, as an evidence on a trial; he appears to have been discharged from Barrack on the 7th of March, together with a man named Johnson; Doran was not accompanied by the usual messenger, but was allowed to proceed by the evening coach to Parramatta, on his way to Wellington Valley.

Cross-examined by Mr. ROWE. -- The entry of these facts is not made by myself, but by a prisoner clerk who is now on the roads; I cannot swear to the date, but I am aware of his having received a discharge; I saw him when he came to be received; he told me he was sent from the office of the Superintendent of Convicts; I never considered him a free man while I knew him in Sydney; he never slept in the Barracks during the time had charge of it; he did not sleep there from the 5th to the 7th; he had no leave from me to sleep out; I could not swear that he was the James Doran who came out in the Atlas, but he was pointed out to me as the person who was in the service of Barry and Wollstonecraft.

F. A. HELY, ESQ. -- I am Principal Superintendent of Convicts; I remember a person named Doran reporting himself to me in the early part of the year; I knew Doran perfectly, and having a very good opinion of him, I did not wish to deny him any such indulgence as we constitute with orders, I gave him permission to sleep out of barracks, he stated he came down as a witness; I am Doran that came from Wellington Valley, is the same who was in the service of Berry and Wollstonecraft -- he was in the Colony before I arrived -- he mustered in my office as an assigned servant at the general muster which took place shortly after the present Governor's arrival -- when he was leaving Sydney, I gave him permission to go by the coach to Parramatta, and he was to join the other prisoners who were proceeding to the same station, at Emu Plains'; Doran was about 5 feet 7 inches high, dark hair, and of a ruddy complexion; I have received letter since from Mr. Maxwell, the Commandant, stating that Doran had not arrived at Wellington Valley, dated the 18th of March.

Cross -examined by Dr. Wardell. -- I do not know this James Doran to have come out in the Atlas.

By Mr. ROWE. -- I have never heard from any person in office, that Doran's conditional pardon was lying in the Colonial Office; prisoners who receive conditional pardons are considered free within the Colony. Van Diemen's Land was, in 1825, under the control of the Governor of this Colony; I think so, but it is merely matter of opinion.

Re-examined. --The impression on my mind is, that the name of James Doran appeared in the Gazette as one of those to whom Sir Thomas Brisbane had granted a condition pardon.

Thomas Smith. -- I am clerk to Messrs Berry and Wollstonecraft; I remember seeing a man named James Doran in Sydney, in March last, he came up as an evidence in a case of murder; I saw him in Messrs. Berry and Wollstonecraft's office, after that he went int[sic] Bax's opposite, and Mr. Wollstonecraft sent him up to the Police; I have also seen him at the London Tavern, in George -street, kept by a Mr. Pollack, he was with me there, but I can't take upon myself to say whether he accompanied me back; I did not see him depart the last time I saw him there, but he told me he was going by the coach.

Mr. STEPHENS here objected to anything said by Doran being received as evidence; inasmuch as what he stated was not evidence against Doran, but against third persons.

Dr. WARDELL supported the arguments of Mr. Stephen.

The SOLICITOR GENERAL contended it was admissible evidence.

Mr. ROWE contended, if what Doran said in one instance was received, it should also in another; therefore, what lie he said about his own freedom should also be admitted.

The Court ruled that, so far as the question went, it was of no import one way or other. All it amounted to was, that Doran had told the witness he was going to Parramatta.

Examination continued. -- I can't say whether he did go on the coach or not; I saw him about one of the places from which the coach starts; I left him before the coach came up; I never saw Doran write.

Cross-examined by Dr. WARDELL-- I have frequently walked about with Doran, he has mentioned to me that his pardon was made out, and that he could not obtain it; he complained of it as a grievance.

John Bell was then sworn and examined. -- I was Superintendent to Mr. John Raine, at Parramatta, in February last; I remember in that month, or the month of March, a person named Doran coming to Mr. Raine's house at Parramatta; I knew him for some years as clerk to Berry and Wollstonecraft; his name was James Doran; he came to my house, and asked me if Mr. Raine was at home; I told him he was, but was at the Darling Mills; he told me he had just come from the mountains, and that his feet were so sore he could not walk, in consequence of which I took him to the Mills in a cart; when I arrived there, I informed Mr. Raine that Doran had arrived; they shook hands together, and Doran remained at the Mills the remainder of the day, and returned in the evening to West Grove; the following morning Doran went to Sydney, and returned again to Parramatta, where Mr. Raine procured Doran's shoes to be mended bought him a new hat and took him again to Sydney; after Mr. Raine's return, he said Doran was very miserable, and that Berry and Wollstonecraft would do nothing for him; a day or two after, I asked Mr. Raine, on his return from Sydney, if he heard anything of Doran, he said he was a great fool, for he had got on board ship, but in consequence of the captain being detained at a wedding he left the ship; a day or two after a letter arrived, which Mr. Raine read in my presence and said it was Doran, it was requesting the loan of a few dumps to keep some parties who could not manage without several; it was signed "Johnson" -- the following day, I brought a letter from Mr. Raine to Mr. Lee, containing an order for some goods, and a message to him to know what was become of Johnson, if he had sailed, and with whom he went; I received a letter in answer from a clerk of Mr. Lee's named Townsend; Mr. Raine shewed me the letter after he had read it, and I filed it in his office; I can swear this is the letter from particular marks on it.

[The letter was then put in and read, and contained, besides accounts of some goods forwarded, some expressions to the effect that their friend Johnson was all right, and had sailed in the Wellington, Captain Dowsette, to the Sandwich Islands; it also stated that Kemp had done wonders, and had proved very staunch.]

Dr. Wardell objected that the letter was not admissible in evidence, the defendants were not at all connected with it.

The ATTORNEY GENERAL admitted it was not evidence just then, but he would make it so when the witness Townsend was called. Witness, in continuation --Mr. Lee was in Parramatta after that letter had been received, in the absence of Mr. Raine; he saw the letter, and wanted me to give it to him, or they "would all be sold," but which I refused to do as it was filed in the office, without Mr. Raine's permission; the last time Mr. Raine and Doran left Parramatta, they went in Mr. Raine's boat; Mr. Raine said he was going to Kissing Point for some pumpkins; he might have returned the same evening, but he did not come back til the next day; he brought no pumpkins with him.

Cross-examined by Dr. Wardell; I took the letter out of Mr. Raine's office, and took it to prevent Mr. Lee having it, you may call it stealing it if you like; I did not take it with the intention of using it as evidence at the time; I should have given it to Mr. Raine then, if he asked it; I never, to my knowledge, said I would make Mr. Raine "fly like hell;" I might have said he treated me ill, and as I had given the letter into the hands of the police, I would go on with it; I did so because Mr. Raine came to my house at night and abused me; I am 16 years in the Colony and came as a prisoner for life; I am assigned to my wife at present, and have been for seven years; I never applied for a ticket-of leave; I have been all the time at Parramatta; I held the office of gaoler then; there was no poor's box there; I never saw one; I know what you mean, but you have got the wrong end of the stick; prisoners in the gaol have boxes; I don't know that there are two ways of getting at the inside of a box; I was charged, when I was gaoler, with robbing the box of a prisoner; but I was innocent; I gave the name of every person to the Police, when I handed over the letter, who would corroborate my statement; I did not see Townsend before I gave the letter up to the Police; I know man named Robert May, and also a man named Granstone, servants to Mr. Raine; I asked them who the men were that took Doran in the boat; I might have said to them that Mr. Raine had done me an injury, and there was a rod in pickle for him; I never said anything about sending him to hell.

Re-examined -- I was convicted of the charge laid against me at Parrammatta [sic] but it was on the evidence of the under gaoler whom I had previously been charged with suffering prisoners to escape out of the gaol; I was since in the employ of Mr. M^cArthur and Mr. Raine.

The Hon. Alexander Berry. -- I am a partner in the house of Berry and Wollstonecraft; I was 1825; we had a clerk named James Doran in our office for three years; I know his hand writing; I believe these papers to be in his hand writing; but I am positive.

Thomas Arnold; I am a baker, and hold a ticket of leave; I was in the employ of Mr. John Raine from January to May in the present year, I resided at West Grove; sometime in the month of May, a person named Doran came there; I know him perfectly well, as he was in Newgate with me; I am positive of his being the same person that I knew in the year 1819; I did not see him leave West Grove at any time with any person; I have never seen Doran since.

Cross-examined by Dr. Wardell -- Mr. Raine was a contractor for vegetables with Government, and was in the habit of going to Kissing-point for various things in that way.

Henry Seymour Townsend. -- in the month of March last, I was in the employ of Mr. Lee, and remained till the month of May following; I remember at the end of March or beginning of April, I saw [?] named James Doran at the house of Mr. Lee; he was there several times; I conversed with him frequently about his intended departure, in the presence of Mr. Lee & Mr. Raine. Doran was then secreted in Mr. Lee's house. Mr. Raine told him that he was sorry that no ship was sailing just then, and promised him every assistance; he also told me to be very careful and not allow any one to see him; I think Doran came first to Mr. Lee's in company with a man of the name of Smith; he was secreted in a room upstairs, and his meals taken to him by Mr. or Mrs. Lee, and sometimes left at the door by a servant who did not know who was inside; I had particular orders from Lee and Raine, not to allow him to be seen by any one; I myself brought him in disguise from he house of Mr. Kemp to that of Mr. Lee; previous to leaving Kemp's house, Doran took me into a little room below from which he took some linen and stockings; when we came to Lee's, we knocked at the door which was opened by him and he brought us into the parlour; Doran was disguised in an old sloushed [sic] hat ; Kemp did not come with us that night; Lee and Doran had frequent conversations in my presence, when Lee told him he would render him every assistance in his power; Kemp and Lee subsequently stated to me that he had made his escape in a vessel commanded by Capt. Dowsett, which sailed in the beginning of April, and had gone to the Sandwich Islands; I received a letter subsequently from Mr. Raine, requesting some goods to be sent, and desiring that I would let him know whether Doran was off and every other particular; I wrote him in return that he was off and mentioned with who me sailed, and where he was going to; Doran and I went out one night after Mr. and Mrs. Lee were in bed, and returned very late, when we were met by Lee who would not receive him then in consequence of leaving his house so late, but at the same time stated his readiness to render him every assistance in his power; we then went back to the house we had left, where Doran staid [sic] the whole of the next day and in the evening went to a public-house in Pitt street; he never came to Lee's house after to my knowledge; whilst Doran remained at the Public-house, I was prevented from seeing him, but I received several letters from him, signed "Johnson"; the defendants knew that was the name Doran assumed, and the one Mr. Raine used when writing to me about him; two or three days after Doran left Lee's, Mr. Kemp called at Mr. Lee's house, and said to me, "Townsend, Doran is about going, it is necessary he should have some little things with him. You have some preserved meats, have you not?" I said we had and he requested me to pack up some and send them to his stores, which I refused to without Mr. Lee's order; Kemp replied "o never mind the order, Lee will have no objection to sending the meats, and if he has I'll stand half;" Mr. Lee subsequently consented as Kemp said he would stand half the expense, and I accordingly packed up the meats and sent then; some time after Kemp called again and said that Doran was off; that Mr. Raymond, the Searcher of Customs, had been on board, but could not find him, though he was actually so near as to hear Mr. Raymond's conversation with the Captain.

Cross-examined by Dr. WARDELL. - I wanted to be off, too; I was once concealed a little; I was trying to effect my escape from the Colony, but it was in consequence of debt; I was detected concealed in a box in my wife's house; I mean my present wife; I won't answer who she was; you must ask her; it was sometime in May when I was found; I left Mr. Lee's house unknown to him to join the vessel at Botany, leaving a letter behind me stating that I was gone out of the country; a warrant was obtained by a man named Nicholson on a charge of obtaining a gun under false pretences, but the bill was thrown out by the Grand Jury; Mr. Lee made several charges against me, but the Bench dismissed them all, with the exception of one, which was afterwards thrown out when it came on before the Grand Jury; I never went on my knees to Mr. Lee not to prosecute me, it was to forbear arresting me for a debt; I never in the most piteous terms implored Mr. Lee not to prefer a criminal charge against me, it had reference solely to the debt; I might have written to him to that effect; but I never addressed him personally on the subject; it is very probably I might have written, as I was in very great trouble at the time; I cannot say whether he forbore pressing the charge against me; the grand Jury threw out the bill on the merits.

[A letter was here read from the witness to Mr. Lee, dated on the day the Grand Jury threw out the Bill, thanking Mr. Lee for his forbearance.]

Witness -- I wrote that letter in the hope that, by succumbing to Mr. Lee, and getting on good terms with him, he would not arrest me for the debt I owed him.

[Another letter was here read in which the letter expresses the witness's contrition for his conduct to Mr. Lee, and implores his forbearance, dated from the Sydney Goal.

Witness --I have had another idea of escaping since; I applied to Kemp for money to assist me in going away, I never asked Lee for money for that purpose; I never told Mr. Raine that I had; I saw Mr. Raine on the same subject, and requested him to get me a passage, and I would go away; he said it was too late to think of a passage, as he had gone so deeply in the case which was coming on on Monday, and that he had attempted to see in me in town, but could not find me; I account for his not being able to find me, from my having left the house I lately lived it; this was on Friday last, the 26th instant, in Mr. Raine's bed-room, as I believe, but I can't say the house; it was in an upper room; I told Mr. Raine then, that I had given my evidence under fear, in consequence of Captain Bunn telling me that I would be prosecuted myself if I did not; I had very great reluctance in coming forward today; I have received an indemnification from the Attorney General.

Dr. Wardell here submitted that, in fairness, the witness ought to have been presented to the Court as an accomplice.

The ATTORNEY GENERAL stated, that he did not consider the witness exactly in the light of an accomplice.

Witness -- I was told by Captain Bunn that if I did not give evidence I would be prosecuted as principal -- I would not have given evidence only for fear of that -- Lee refused to take Doran into the house after leaving it late one night -- I took him back to the house where we had previously been -- it was my wife's and there were several persons present in the house -- there was a woman there named Maria Reilly -- I might have told her not to tell anyone that I had concealed Doran -- I told Mr. Kemp, if he would assist me in going out of the Colony, and give me a few pounds, I would leave a certificate behind me, to say that my evidence was given under threats -- Kemp said it should be arranged -- I do not think I ever made an offer to swear another affidavit that what I had already sworn was false --I won't swear one way or the other -- I can't recollect that I ever offered to perjure myself -- I was under that anxiety to get away that I was willing to do anything to prevent my appearing in this box as an approver -- I would not have sworn it though I told them so -- I will not swear I did not make the offer to perjure myself by swearing that what I had previously sworn was false --- upon my honor I can't recollect [laughter] whether I did or not.

Re-examined-- I was very much harassed, and therefore tried every means to get out of the Colony -- the charges preferred by Lee and Nicholson were thrown out by the Grand Jury -- I was also arrested on a civil suit by Mr. Lee, and was bailed out by Mr. Raine -- I had not given any information about Doran at that time.

James Raymond. Esq. Searcher of Customs, stated that he went on board a vessel called the Wellington, on the 9th of April in the present year, when she was under weigh in Sydney Cove -- I went with her as far as the heads -- there was a number of persons besides the crew on board -- there were Captain Shand, [???]Watson the pilot and Mr. Kemp -- Kemp left her between the heads and come on shore in my boat with me -- Mr. Dowsett was master of the Wellington -- I had conversation with him while I was on board, but I can't recollect on what subject.

This was the case on the part of the prosecutor.

Several legal objection raised by the defendant's Counsel were over-ruled by the Court, after which an adjournment of the case took place, by consent, in consequence of the lateness of the hour, to Tuesday morning.

The CHIEF JUSTICE having taken his seat upon the Bench this morning, directed that the case of the King against Raine and Others, should be proceeded with.

Dr. WARDELL, on behalf of the defendants, addressed the Jury at considerable length, commenting on the character of the principal witnesses for the prosecution, and contending that the person whose escape from the Colony it was alleged his clients had contrived, was de facto, and de june [sic], a pardoned man.

The learned Counsel then proceeded to call the following witnesses: --

Mr. Francis Mitchell -- I am a merchant in Sydney; I know the witness, Townsend; he came into my office one morning, in company with Mr. Kemp, and said if the defendant a sum of money and enabled him to leave the Colony, he would leave a certificate behind declaring that all he had stated was false.

Cross examined by the ATTORNEY GENERAL. -- Townsend was in very great difficulties at the time, and was extremely anxious to get out of the Colony; he said he had been called on by Captain Bunn, and he had been obliged to make a deposition, but that if the defendants would give him £25, he would go out of the Country and leave a certificate stating that what he before said was false; I have no reason to disbelieve Townsend on his oath.

Mr. Wm. Stewart -- I am a master mariner, and lately commanded the Fly; I know Townsend; he applied at one time to me for a passage to India or anywhere; wished me for that purpose to interest myself with the Commander of the Sir Joseph Banks; I knew that, at the time I speak of, he had made his deposition in the case; I asked him how he would manage about it,, when when [sic] he replied he would soon upset it, as he made it through threats and promises; he said, as a reason for wishing to go away, that he enthralled in debt; I was at the house of Mr. Kemp, one day when Townsend came there in company with Doran, and remained nearly and hour, and then went away together, he did not find Doran at the house when he called, but came with him there; he did not find Doran at the house when he called, but came with him there; I was residing at Mr. Kemp's house at the time; Doran was not sitting at Mrs. Kemp's when Townsend called; they came together, and went away together; Doran was not at all disguised when he went away; Doran was never concealed at Mr. Kemp's while I was there; there was no possibility of concealing him, as every room in the house were occupied; I mentioned the subjects of my conversation with Townsend to Mr. Kemp, and his proposal, and he treated it with contempt.

Cross-examined -- It is about a month or five weeks since I had this conversation with Townsend; I swear that I never saw Townsend and Doran in Mr. Kemp's house but the one evening I have spoken to; between the months of March and May in the present year, I never saw Doran in Mr. Kemp's house but the one time I speak of; I sailed in the Fly, on the 19th of May, to Hobart Town, and returned to the colony on the Magnet; I left the Fly in consequence of a difference with the owners on account of pay; Townsend told me he wished to get away, as a great deal would devolve on himself; I did not know Doran was a prisoner.

Mr. William Barnes -- I am an auctioneer, and general dealer in Parramatta; I knew the residence of Mr. John Raine; I know man named Townsend; I saw him at Mr. Raine's on Friday last, and heard a conversation between him and Mr. Raine; I was not in the same room where it took place, but close at the door; Mr. Raine informed me that Townsend was in the house and that he did not wish to have conversation with him unless in the hearing of some person in consequence of which I placed myself at the door which was left partly open, and took down the conversation in writing; he told Mr. Raine, that he would not have give (sic) any evidence in the case of Doran, but for threats of Captain Bunn, and Colonel Morissett he said if Mr. Raine would assist him to get out of the country, it would be all right as the prosecution could not go on; Mr. Raine replied that, with such a prosecutor staring him in the face, he must expect nothing from him; Townsend was not aware that I was in hearing; he said he applied also to Mr. Lee and Mr. Kemp, that Lee was a d--d rascal, and Kemp a milk and water fellow who thought more of a pound than Mr. Raine of one hundred; he said he had called upon them both and that they treated him with contempt; Mr. Raine also treated his proposals with contempt; after the conversation I slipped down stairs, and immediately Townsend came down and left the house.

Cross-examined. -- Mr. Raine was aware that I was listening and Townsend was not; he treated Townsend with contempt; I have stated all that took place as nearly as I remember.

Re-examined. -- Mr. Raine stated to me that he wished me to be within hearing lest Townsend might make a false report of the conversation between them.

Maria Reilly. -- I know a person named Townsend; I knew a person named Doran; Townsend brought him and a man named Manson to Mr. Lee's house, on the day he was married, and during his absence in Parramatta; Townsend called for some clean glasses; and they had two or three glasses of Champagne; they went out together shortly after, and I saw no more of Doran till a few days shortly after when Doran brought him to Betsey Grey's house, and concealed him in a back room, saying that Mr. Lee had turned him out, and all his friends had forsaken him; he remained there about a week, and then went away one night with Townsend.; I did not see him for a fortnight after, when he came again to Betsey Grey's in company with Townsend and a person named Manson as he said, to bid her good bye, as he was agoing; he remained about an hour and then went away in company with Townsend; on the following Day, Townsend told me that he had seen Doran safe off.

Cross-examined. -- I left Mr. Lee's employment about four days after he was married; I lived opposite Betsey Gray's and used to wash for her; Mr. Lee was married in the beginning of April, and about a week after, I think it was I first saw Doran at Betsey Gray's ; he remained a week, and about a fortnight after I saw him there again; I think from the time of Mr. Lee's marriage until the last time I saw Doran, might be about four weeks altogether.

Thomas Raine, Esq. -- I became the proprietor of the Darling Mills in the early part of the present year; I knew a person named Doran; he delivered me a letter from my brother, requesting me to give him employment at the Mills as a clerk, which I could not do, as I had engaged one; Doran came from Parramatta, where my brother then was; I think Doran had been up to Parramatta to obtain the letter, and brought it to Sydney.

Mr. Robert Howe -- I know Townsend by sight; I remember his making an application to me, about six months ago, to beg my interference with Mr. Lee, not to be hard on him; nor to prosecute him; he told me, that, on the previous day, he had married a currency girl, named Grey, who had been very kind to him; from Townsend's general character, he is a man whose veracity I would very much doubt, unless his testimony were well corroborated.

Cross-examined-- I never knew Townsend to be charged with perjury, or to have perjured himself; I would not think a trial for felony had any imputation when the party charged is acquitted; Townsend was not convicted of the charge laid against him by Mr. Lee.

Robert May -- I reside at Parramatta, and am overseer to Mr. John Raine; I know a person named Beale; he was overseer to Mr. Raine when I first went into his employ, but was discharged; I have conversed with him since he left Mr. Raine; I remember merely [sic] him in May last, when he said, "will [sic] May, how do you get on now?" I replied "very well; and he said "I'll be damned if I do'nt [sic] sweat Mr. Raine -- I'll make him smell hell before I stop;" he said he would be revenged on Mr. Raine for his treatment of him and his wife; I saw by his manner that he was inveterate against Mr. Raine, he said that I knew all about the affair of Doran; and, if I would give evidence against Mr. Raine, the Attorney General would allow me 23s. a-day while I was in Sydney, and good living besides.

Cross-examined -- I am assigned to Mr. Raine, and am chief overseer; I would not injure him; I took Mr. Raine and Doran to Sydney, in the boat, on the 26th of February last; Mr. Raine said, Doran was a poor fellow, come from Wellington Valley, on a treat, and he wanted to give him a passage to Sydney, we landed at the Slaughter-house Wharf, where Mr. Raine usually landed; Beale is in the habit of using very bad language.

Re-examined -- Mr. Raine did not conceal Doran in any way.

Joseph Grant -- I am an assigned servant to Mr. John Raine; I know a man named Beale; he was overseer to Mr. Raine, and discharged by him; after he left, he stopped me several times at Parramatta, and asked me if he said anything about him; I said "no;" and he replied, "Never mind, I'll have him tight enough by-and-by; I'll send him to h--ll before I've done with him;" he never asked me to swear anything.

Cross -examined -- I am 16 years of age, a native of Somersetshire, and was sent to the Colony a prisoner for life.

Mr. John Thorne -- I am Chief Constable at Parramatta; I know a man named Beale; he was once jailer at Parramatta; he had not been generally considered worthy of belief; I would not believe him, on his oath, if any benefit was to be derived from a swearing false, or any revenge to gratify.

Cross-examined -- I never knew Beale to perjure himself.

Mr. Andrew Nash --- I am an innkeeper at Parramatta, and owner of the famous horse Junius; I know a man named Beale, as well as I know Junius; I have not so good an opinion of him as I have of Junius: I know him to be a very bad man, and would not believe him on his oath; he offered to perjure himself at one time for me, if I would have permitted him.

Mr. James Elder -- I have resided nearly 12 years in Parramatta; I know a man named Beale during that time; for what I know of him, I would not believe him on his oath.

Cross-examined -- I never knew him to perjure himself; I speak from his general character.

Israel Chapman -- I am a Police Runner; I knew a man named Beale who was gaoler at Parramatta, and dismissed; I would rather have his money than his oath; I know Townsend; I had an apprehending warrant against him some time ago, on several charges laid by Mr. Lee; it was thought he was about to leave the Colony, and Mr. Lee took very great pains, and went to a great expense to apprehend him; I found him in a house on the rocks, concealed in a box.

Counsel for the defendants closed their case here.

Alexander S Manson called by the ATTORNEY GENERAL. -- I know a person named Townsend; I remember being being [sic] with him at Elizabeth Grey's house, and have met a person there who was named Doran; he was introduced to me by the name of Johnson; I can't swear positively how often I saw him, nor in what month it was.

The CHIEF JUSTICE, at an advanced period of the day, proceeded to sum up the evidence, and after a luminous charge left the case to the Jury, as one depending solely upon the impression which the mere circumstantial evidence had been adduced in support of the prosecution, should make on their minds, as well as on the degree of credit they should give to the witnesses on either side.

The Jury had scarcely retired when they returned into Court with a verdict of Not Guilty.

"The charge against three individuals, of aiding and abetting in the escape of James Doran, an alleged prisoner of the crown, was gone into on Monday, during the entire of which day and Tuesday, it occupied the undivided attention of the learned Chief Justice and Court. It terminated in the acquittal of the accused, on whose behalf respectable witnesses were called, who concurred in representing the testimony given by the two principal witnesses as altogether unworthy of credit.

"It appeared on the trial that James Doran held a conditional pardon under the hand of the late Governor, on which Doran had paid the customary fees; but through Major Goulburn, who was then Colonial Secretary, the pardon had never undergone the usual form of registry. It was very justly observed from the Bench, that the negligence of a subordinate should never be allowed to thwart the benevolent and just designs of a superior. This pardon therefore Doran could have claimed, and should have obtained had he continued in the Colony."

On the difficulty of proving the convict status of prisoners from Ireland, see Historical Records of Australia, Series 1, Vol. 15, pp 541-543.

[2] On 10 September 1827, Governor Darling sent Forbes C.J. the following extract from a despatch by Earl Bathurst to Lieutenant Governor Arthur of Van Diemen's Land (despatch No. 50, 1 November 1826) (source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 111-112):

"It now becomes necessary that I should advert to the question of Law to which you have directed my attention in that Despatch

"It appears that the Acting Attorney General of Van Diemans land is of opinion that the Statute 30 Geo 3rd Cap 47 is still in force and that in pursuance of that Stature all remissions of the sentences of Convicts which may be granted by the Governor or Lieut Govr of the Colony must be included in the next general pardon which may pass under the Great Seal

"It must of course be admitted that the Statute 30 Geo 3rd Chap 47 is in force since it is recognised and referred to in the Section 35 of the 4 Geo 4 Cap 96 as the Act under the authority of which all remissions of sentence are to be issued but it does not therefore follow that the method of proceeding prescribed by the 20 Geo 3rd Chap 47 is not to be followed, and it may therefore be convenient to enter into the following explanation of the reasons by which Parliament were influenced in passing the recent Statute.

"The 3 Geo 3rd Chap 47 by requiring that the remissions of sentence granted by the local Government should be perfected in the next general pardon under the Great Seal had given rise to great difficulties.

"The habit of issuing general pardons having latterly fallen into disuse the pardons granted by the Governors of New South Wales continued in many cases incomplete from the want of this additional solemnity the Convict consequently remained an attainted person and laboured under all the legal disabilities incident to that condition.

"From this cause embarrassing questions had arisen [pg 112] respecting the titles to land and the power of a numerous body of persons to hold certain Civil offices and even to given evidence in Courts of Justice.

"The object of the 35 Section of the Statute 4 Geo 4 Cap 96 was therefore to provide a simple and convenient method by which persons pardoned in New South Wales and Van Diemans Land might within those Colonies be restored to the enjoyment and exercise of all civil rights notwithstanding any previous attainder in England.

"That method is the signification of His Majestys pleasure through one of the principal Secretarys of State and that course had therefore been pursued at present and will be followed on all future occasions.

"Considering the great importance of preserving an authentic record of the names of all persons who may thus receive a complete remission of their sentences you will transmit a copy of my despatch of this date No 50 to the Chief Justice of the Colony with an instruction conveying my desire that it should be deposited and preserved in the Registry of the Supreme Court."

Forbes responded to this by writing his Convict Assignment Opinion, 1827, the footnotes to which contain other relevant correspondence.