SYDNEY.

New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 65, 14 March 1843, Page 4

SYDNEY.

SUPREME COURT. (criminal side.) Wednesday, October 19. BEFORE HIS HONOR THE CHIEF JUSTICE. James Woolf, alias Mordecai, John Jones, Nicholas Lewis, Thomas Whalan, George Beaver, and John Sayer, were placed at the bar, charged with piracy on the high seas, in having attempted to carry away the brig Governor Phillip, the property of her Majesty the Queen, on the 21st June, within one mile of Norfolk Island, and with assaulting one Thomas Whitehead, a person belonging to. the said brig, with intent to murder him. The indictment contained four counts, in which the offence alleged to have been committed by the prisoners was differently described. The prisoners all pleaded not. guilty. The Attorney-General informed the Court that a seventh prisoner, named Berry, had been originally included in the charge, having been committed to take trial for the offence by the Police Magistrate at Norfolk Island, but upon mature consideration, he (the Attorney-Gene-ral) had not thought it advisable to put him lipbn his trial. Mr. Purefoy objected, on behalf of the prisoners, to the indictment being proceeded with in its existing form, and contending, : that as there was four counts in it, which each comprised separate charges, and involved distinct punishments, the Attorney-General was bound to elect the count on which he would proceed. After some argument, however, it was held by the Court that as the offences charged in each count were all alleged in the same manner, as having been committed while the prisoners were engaged in an act of'piracy, the objection was not tenable.

The Attorney-General said that previous to going into the evidence, the duty devolved upon him of detailing the nature of the charge preferred against the prisoners, and the evidence upon which that charge was founded, without going into any of the technicalities which were usually adopted in legal forms. He was aware that public feeling had been to much more than an ordinary extent, excited by the circumstances ; it involvedone of the few crimes upon which the punishment of death was awarded. It was a trite observation, that the jurors before coming to the investigation of such a case as this, should divest themselves of any particle of prejudice ; and it was the more especially necessary that they should do so in this case, as the accounts of the transaction which had been current among the public were either highly exaggerated, or erroneously deficient and understated. The information was filed under the second section of the Ist Victoria, c. 88, by which it was enacted, that if any person engaged in an act of piracy should assault and wound another, he should b§ considered guilty of the capital felony ; and,.in accordance with the terms of the Act, been charged with assaulting \»erjeant Charles Whitehead, who was on board the vessel at the time in execution of his duty, as the non-com-missioned officer in charge of the guard. Seven prisoners had originally been committed on the charge ; but one of them, a man named Berry, he had not deemed it proper to prosecute, as from the whole of the evidence which had been submitted to his consideration, it was evident this man was not aware of the act of violence meditated by his companions, and so far from taking any active part in the transaction, had been the subject both of the suspicions and the threats of the others. There was also some palliative circumstances in favor of the prisoner Woolf, who was proved to have been the means of saving the life of one of the soldiers, and to have expressed some reluctance at being concerned in the transaction, he (the Attorney-General) should therefore have also abstained from placing this prisoner on his trial, were it not that, in opposition to these circumstances in his favor, it had been proved that he had been the author of a proposition to the captain to give up the vessel, on condition of receiving provisions, and being allowed to depart in the long-boat. The learned gentleman then went on to detail the circumstances of the case, as subsequently shewn by the evidence, and commented at considerable length upon the several features of the affray, although from want of space we are precluded from following np the whole of his address. John Williams, who deposed as follows : —I am steward of the Government brig Governor Phillip , and was at Norfolk Island with that vessel in June last, with a cargo of Government stores; we were almost twelve days going down, and lay there about five weeks, tacking off and on, waiting to be discharged; vessels are sometimes discharged near the cascade, and at others near the Government House. I remember the 21st of June last, on which day we were on the cascade side, about a mile and half or two miles from the shore. The Coquet had been discharging there; she was about 70 or 80 tons, but the Governor Phillip was about 180 tons burden; the total number of our crew, including the captain and mate, was eighteen; we had, besides, eleven soldiers of the 96th regiment on board, whom we had brought with us from Sydney ; but they were allowed to go on shore, one or two at a time, upon liberty. The Coquet had sailed away from the island the night before the prisoners came on board the vessel, which they did for the purpose of discharging her ; the whole of the prisoners were among the boat’s crew, hut the total number of the boat’s crew was twelve and the coxswain ; the others who came on board with the prisoners, were the coxswain, Kelly, Sea, M'Lane, and Berry ; they came alongside, for the purpose of stopping on board, having left their work on board the Coquet; they came on board the vessel, and the captain put them in the prison abaft the forecastle, but they were not locked up, and there was no door to lock them in; there were two sentries stationed on the deck. I went to bed on that night at ten, -and I rose at half-past six the following morning; when I got up, I went forward to the cook about the tea, when the coxswain of the island boat came.on deck, and the second mate told him to .get his men on deck to haul up the boat which was then made fast astern. The coxswain accordingly ordered them aft, when- they immediately rushed aft, exclaiming they would take the vessel; I went round to the galley door, where I saw Sayer beat serjeant Whitehead on the head, with a billet of wood, the fellow pieces of Wood* to this (producing a heavy piece 6f wood about four feet long, and four a half inches'square.) He struck the seijeant more than’once on the head, and the result was, tli£t he hied severely. The serjeant was in the act of coining on deck at the time, and his head'was only a little'above the combing of the hatchway; Jones said, “ If you don’t go below, Til blow your b -y brains out;” he had a pistol and a drawn Cutlass, and I therefore went below into the cabin, immediately. I saw none of the ship’s crew on deck at the time, but I took no parti-

cular notice, as I was hastening to get below from fear. The Captain was just entering the cabin from his state room as I got down, and I told him what was going on. After I got down the skylight was barricaded down with tarpaulins, &c., there were two carronades on board, but I did not notice anything particular in their position ; the cabin doors were also fastened ; the soldiers were in their barrack at the same timef which is separated from the cabin by a bulk head, and I let them into the cabin by opening the store door; the soldiers were prevented from getting on deck by some of the prisoners, one of whom I saw standing over the hatchway with a billet of wood in his hand ; we were kept below for about an hour.

Cross-examined by Mr. Purefoy. I have been at the Island several times with the Governor Phillip, and have often seen prisoners on board; they are generally allowed to sleep on board after doing their work ; they sleep in the prison, but although I have been in the habit of going to the Island for five years, I never saw them secured by a chain, they are generally secured by a gentry over the hatchway; I did not see the men put into the prison on the evening in question, but a sentry armed with a pistol and cutlass, was stationed at the hatchway; the piece of wood I spoke of is quite similar to the piece produced, but it could not be found; I saw the billet of wood in Sayers’ hand, and I saw blood upon it; I never gave any information upon these circumstances until I came to Sydney, when I did so before Captain Innis, in the presence of all the prisoners,; I know a soldier, named Lachlan, and I saw him on the quarter deck of the Governor Phillip as I came from the cabin ; he was sitting on the hen coop, when I rose about half past six, but I did not see whether he was armed or not; I did not observe that he was talking to any one; I know a seaman called Rogers, but I did not observe him to be standing near Lachlan; I was on deck about ten or fifteen minutes altogether; I have no doubt whatever as to the striking of serjeant Whitehead, who was coming on deck from the barracks, in consequence of having heard the rush ; the vessel was laying to at the time, and I saw no one at the helm.

William Winter —I am a private soldier in the 96th regiment, and I was on board the Governor Phillip on the 21st June last; I went off watch at four o’clock in the morning, and afterwards I heard a noise which I thought arose from the soldiers and sailors fighting; I went on deck through the hatchway to see what was the matter, when three or four men got round me, and one of them cut my head with some weapon ; some one cried out “ fling the b—r overboard, he’ll tell no tales,” and I was at once flung over the side, but I cannot say by whom, as I was insensible from the blow; I remained some time in the water, but at length made to the boat which was towing astern, and the prisoner Woolf took me up, saying that I should not be hurt; I saw Moss standing astern giving orders for the management of the vessel; I was swimming three quarters of an hour before I got into the float, and I was a quarter of an hour in the boat before I got on board; Woolf saw me hanging to the boat and endeavouring to get in, and he came from the deck and picked me up, after which he went on board again. By Mr. Purefoy —I made my first deposition at Norfolk Island a day or two after the occurrence, and I think now that I remember Woolf saying, “ I wish we could get the boat adrift and we would go ashore ;” Moss heard Woolf say this and threatened to shoot him if he did not go on board, and Woolf said to me that he dared not refuse ; I should have been drowned if it had not been for the exertions of Woolf; I know the prisoner Beaver, but I did not see him assist Woolf in getting me into the boat, yet some one must have helped him to get the boat alongside by pulling the rope on board ; when I got on deck the Captain had command, and I saw none of the prisoners, but they were subsequently called from below and put in irons; several shoots were fired after I got on deck ; only one man at a time could get up from the forecastle ; I do not recollect seeing any one of the prisoners hold up his hands and cry out that he had no arms and was willing to surrender; I saw a man nicknamed “ Spoty” shot dead on the deck after I came on board, and I saw another man shot in the boat whose name I do not know, I think the latter was shot by Ulsworth ; the boat was towing about five or six yards astern at the time this man was shot; there were sentries on deck that morning, named Lachlan and Macdonald. I recollect Captain Boyle giving orders to cease firing, and’ I heard no shots fired afterwards; Seijeant Whitehead was’in charge of the guard; when I'left Norfolk Island the ‘ Serjeant was in hospital, and although he was able to walk about, I did not think he was able to travel up'here. Similar testimony was given by other witnesses, and the Counsel for the prisoners having addre- sed the jury at considerable length, the Judge summed up, and left the case to the jury. The jury, after about five minutes consideration, returned a verdict of Guilty against all the prisoners, accompanied by a strong recommendation to 1 mercy on behalf of Woolf. The prisoners were all remanded for sentence.