Benjamin Warby Hearing
12 May 1836 The Colonist (Sydney)
On Thursday last, Benjamin Warby was placed at the bar of the Supreme Court, charged with receiving a number of cattle knowing them to be stolen, the property of various individuals.
This case has excited considerable attention.
A brother of the prisoner was tried and convicted on the clearest testimony at the last Session of the Supreme Court, for cattle-stealing; it appeared on his trial that he had possessed himself of immense herds of cattle in a very short time, but that his character had been so good, that though all were surprised at the rapidity with which his herds increased, yet were they unwilling to suspect him of resorting to cattle-stealing.
Through the exertions of Henry O'Brien, Esq., J. P., of Yass, the immense extent of cattle-stealing carried on in that part of the country attracted public attention, and suspicion at last fell on Warby, for it was impossible in any other way to account for the rapidity with which he had amassed so much property in the course of a few years.
A cattle-stealer who had long been suspected was at last detected, and to save himself from the punishment due to his crimes, he made disclosures to Mr. O'Brien, before whom he was brought for examination, which led to the discovery of a system of cattle-stealing, so extensive in its operations, and so well organised in its various ramifications as almost to seem incredible.
From the information thus received, it appeared that Warby was deeply concerned in this trade, which he had managed to carry on for several years, with impunity.
The apprehension of the fellow who made these disclosures, together with several others who had acted as agents in these, nefarious transactions; and the apprehension created by the active exertions of Mr. O'Brien, had struck terror to the hearts of the cattle-stealers in the neighbour-hood; and when a warrant was, issued for the apprehension of Warby, it was found that he had taken the alarm and had made his escape.
It subsequently appeared that he had made his way to Campbelltown, where his parents reside, and in the neighbourhood of Benjamin Warby, the prisoner then before the Court also resides.
Apprehensive that his conviction should follow in the event of his being tried, and his property confiscated to the use of the Crown, he resolved to make all he possessed over to his brother, that he might thus prevent it from falling into the hands of the Government; he came accompanied by his brother to Sydney, to consult Mr. Francis Stephen as to the best means of accomplishing their object.
By Mr. S.'s direction a bill of sale was drawn out, and signed in the regular manner, disposing of all his stock, farming utensils, &c. to his brother, for and in consideration of the sum of two thousand five hundred pounds, for which he agreed to accept bills, payable at various times from three months to three years.
Having arranged matters thus they returned to Campbelltown, where William Warby was arrested on the warrant for his apprehension, which had been forwarded from Yass. Benjamin Warby was in attendance at the Court House at Yass on the examination before that Bench when his brother was committed, and was warned by Mr. O'Brien to take care how he meddled with his brother's cattle, which would, in the event of his conviction, become the property of the Crown.
He replied, that the cattle were now his own, that he taken legal advice on the subject, and was perfectly safe.
Mr. O'Brien told him that there were some more approvers expected who had not yet seen the cattle, and would probably be able to identify numbers in the flock; besides he told them the increase of those cattle which were stolen some years ago were still among them, and ought to remain open for the inspection of the public.
Warby said that he intended to take none but such as bore his brother's brand, and that there was a clause in the bill of sale securing him from the consequences of taking such as might be stolen.
A few days after, Mr. O'Brien hearing that Warby was moving all the cattle from his brother's station and sending some to Sydney for sale, rode over to the station, accompanied by some friends, and warned him again of the consequences of persisting in the line of conduct he was pursuing.
Warby made a similar reply to his former one, and persisted in doing as he pleased with the cattle. Some of those cattle which Warby forwarded to Sydney for the purpose of selling, were discovered to be stolen and claimed as the property of Messrs. Hill and Roberts.
Warby was brought up at the police, office and committed to take his trial for receiving stolen cattle.
After a long trial, he was acquitted by the Jury, as it was evident that his intention was not to receive stolen property, but to defraud the Crown.
He was remanded to take his trial for another offence, but subsequently the Attorney-General consented to his discharge on his own recognizance.
The Attorney-General in consenting to Warby's discharge said, that he understood that it was a regular custom when prisoners were committed to take their trial on charges likely to lead to their conviction and transportation, to purchase their property before the trial, in order to prevent its confiscation to the use of the Crown; and he signified his intention of prosecuting to the utmost stretch of his power, in all cases of this nature which came under his cognizance.
The Warbys are both natives of the colony; their parents, who reside at Campbelltown, came originally prisoners of the Crown to the colony, but they have always maintained a respectable character; they have gathered together a considerable property.
Their mother has given birth to no fewer than twenty-two children, all natives of the colony, and, until the present occurrence, all have behaved themselves well.
In addition to the two before mentioned, a charge of cattle-stealing is now it is said under investigation against a younger brother.