Genealogical Data

The South Australian Chronicle and Weekly Mail Saturday, August 16, 1873


Thursday, August 14
Before His Honor Sir R. D. Hanson, Chief Justice


Joseph Adams, 18, and Thomas McLean, 21, were charged with the wilful murder of Charles Alfred Withecombe, at Port Adelaide, July 26; and Wm. Edgar, 25, and Benjamin Rebbeck, 22, were charged with being accessory to the murder.

The Crown Solicitor suggested that as the prisoners were undefended counsel should be assigned to watch the case on their behalf. His Honor could take no cognisance of gentlemen, excepting those before him, and he saw no member of the bar appearing as counsel before him. He quite felt the difficulty, but could not remedy it.

Upon the Jury being called, G. J. Shanks, one of those selected, said he would like to be excused from service, and that a person of maturer years should be appointed in his place. His Honor said no doubt the duty was an unpleasant one, but he could not release Mr. Shanks from his responsibility as a juror.

The Crown Solicitor then opened the case on behalf of the Crown. He explained the law with regard to murder and manslaughter; and as to the complicity of the parties, said, when persons were banded together for the commission of an illegal act, and death ensued in the performance of the act by the act of one of the party, the whole of them were liable. He would put a broad case: Supposing five persons went out armed to rob a deer park, and a keeper was shot by one of the party, though the other offenders were two miles away, if death ensued the whole of the party would be liable. He then explained the circumstances of this case.

The deceased was captain of the ship Tongoy, and these men were men belonging to the ship, and as such were bound to obey his orders; and he would point out-not with a view of straining the case against the prisoners, but as matter fairly worthy of consideration, and wishing them to deal with this case as a matter of law, swayed by no feelings upon what they had read and heard-the importance of a captain having command on board his vessel; because not only was he responsible for the vessel, the goods, and so on, but to a great extent for the lives of the passengers and those under his control. There could not have been a more illegal act than their banding together, and having what they termed a row with the captain. It would appear from the evidence that this row was not a sudden idea, but had been thought of for some time. It seemed that the prisoners Adams and McLean having misbehaved themselves-having broken a skylight-had to be punished and they were taken before a magistrate and were imprisoned.
McLean-I never broke a skylight, and was not punished for it.

The Crown Solicitor said he had been misinformed. Adams was the man who broke the skylight, and had been punished. McLean laid an information against the captain for an assault, but it was dismissed. Just after leaving the Court on that occasion McLean struck the captain a blow on the face, and for this he was imprisoned.

On Thursday July 24, the ship was about to sail for Newcastle, New South Wales, and the two men, Adams and McLean, were brought on board from Gaol. On reaching the vessel, they used bad language, and said they would soon be back in Gaol again, or words to that effect. They refused to do any duty till they had seen the captain, and on Saturday they were joined by Edgar and Rebbeck. On Friday night the captain went on board, and of course there was a deal of altercation and bad language. The ship was unable to weigh anchor in consequence of the refusal of these men to perform duty, and it was evidently the wish of the disaffected men to get back to shore.

On Saturday morning, the captain went ashore, and returned about 5:30 in the evening. The men wished to see the captain, who had gone into his cabin, and he came on deck. He went on the poop, raised about two feet above the level of the deck. These four men came up to the captain and surrounded him. Adams said they wanted to go on shore and see a magistrate. The captain said they could not till they arrived at Newcastle. The men then asked what he was going to do with them. He said he would tell them on Monday morning. The Jury would notice that the men wished to know what was to be done with them, knowing that they had refused duty, and that they were continuing in what was an illegal act. Then men went and had tea, and during tea Adams was noticed to take the rolling pin and stow it away upon his person. The cook would speak as to the using of the pin, and to his subsequently missing it.

In the evening these men again saw the captain, stood round him, and asked him what he was going to do with them. He put up his hand and said, "I've told you" and, as if to wave them off, "Now, now." Adams then stepped forward and struck the captain a blow on the head; and, if they believed the evidence, it would seem that there was not the slightest reason for the blow which was given. It would be shown that McLean kicked the captain when he was down.

The following evidence was then called.

Wm. Bruce Fergusson, mate of the Tongoy said on the 26th July last he came on board about 5 o'clock in the evening, and went to his cabin. The prisoners were sailors on board. After the captain came on board saw them, and Adams and McLean said they wanted to see the captain. They came aft, and witness told the captain they wanted to see him, and he came on to the poop. McLean and Adams asked what he was going to do with them, to which he replied that he would tell them on Monday morning. Prisoners then went forward and the captain returned to tea. Between 6 and 7 prisoners came to witness on the main deck, and again wished to see the captain, who came up on being called.

They saw him on the poop-all being close to him, and Adams the nearest. Adams repeated his former question, to which the captain replied as before. A blow was then struck by Adams, and witness heard something roll along the deck, which he supposed was the weapon. The captain dropped and witness seized Adams, and after getting assistance, carried the captain below. The prisoners went forward upon his orders. The captain died at a quarter past 9 o'clock. There was a cut on the side of the face, and also on the lip, and blood flowed from the mouth. Sent at once for the doctor, but the captain died before he arrived. Adams and McLean had been away from the ship for about two months. Adams had been in Gaol, for smashing the skylight , and McLean for striking the captain. They came on board on 24th July, and the ship was to have sailed on the 26th for Newcastle.

Ordered them to work several times, but they refused until they had seen the captain. The captain came on board on the afternoon of the 25th. McLean and Adams-who were the only ones who up till then had refused duty-demanded to be sent on shore to see a Magistrate, but the captain refused compliance with their request, and the prisoners were forward. Heard a noise in the forecastle on that evening (Friday) and he and the captain went to that part of the vessel and found Adams and McLean shouting and making a disturbance. Rebbeck was also there, but the other sailors were in bed. The captain had a revolver tucked in his trousers, and as he came forward Adams said "Look out, he's got a shooter." Adams and McLean said they would strike him if he drew his revolver. One had a bottle, and the other a shoe last. The captain did not draw his revolver, but took witness's advice and went away, leaving him to quiet the men.

About 3 or 3:30 o'clock on Saturday morning the captain left the ship to go ashore. Adams and McLean again asked to go ashore, and called him names. Edgar and Rebbeck refused to work that morning, and the four were together during the day amongst the other men, but refusing duty. There were 13 hands connected with the ship, including witness and the captain. Did not hear either of the prisoners threaten the captain before he was struck.

By Adams-You told him that you wanted to go ashore to see a Magistrate. Adams demanded to go on shore, but witness could not let him, as it would have been contrary to orders.

By Edgar-On Friday evening you were on watch on deck. You and Rebbeck did not refuse duty till Saturday morning.

By Rebbeck-Did not say you struck the captain, but you all refused duty, and surrounded the captain when he came on to the poop.

By the Crown Solicitor-Saw prisoner Adams throw what fell on deck overboard.

Robert Gothing, surgeon, Port Adelaide, deposed to having been summoned to attend the captain of the Tongoy, and to finding him dead. He had a wound on the upper lip, the bleeding appearing to have been internal. Upon making a post-mortem examination on Monday, found on removing the skull three contusions on the head, with the blood coagulated, a contusion on the temple, and the muscles surrounding completely lacerated. There was also a fracture from the left temple-where the blow evidently had been struck-to right across the head. The upper lip was severed to the bone. A blunt instrument would be the most likely thing to cause such wounds. There were two large clots of blood on the membrane of the brain. Death resulted from coagulation of blood on the brain caused by the blows.

McLean-Would any of the wounds be caused by a kick?
The Witness-I think not.

McLean-Would you have been able to tell the difference between human and other blood on the boot?
The Witness-No.

By a Juror-The blow on the lips would not have caused death.
By the Crown Solicitor-There was blood on the boot when he examined it. A kick probably would cause the blow on the lip.
By McLean-The cut on the lip might have been produced by a kick, but there were no external marks of such a kick.

Christopher Lawless, boatswain on the Tongoy, corroborated the evidence regarding the prisoners' refusal to work. When the captain come on to the poop after tea on Saturday evening, and was turning from prisoners to go to his cabin, saw Adams strike him, and heard the blow. The captain fell, and the mate called assistance, and witness and some of the other men carried the captain below.

Alexander Adams, seaman of the Tongoy, said on the evening of 26th July he was in the galley with the cook. As he came out Adams passed him and said, "The son of a -----, I've had my revenge." Went aft, and the first thing he saw was the captain lying on the poop, with the chief officer attending him. Assisted to carry him below. Had heard Adams and McLean talking together on Saturday morning, and heard them say, after the captain going ashore, that they would have their revenge.

Prisoner Adams-I did not say I would have my revenge. I might have said he was the son of a -----.

By McLean-Heard him and Adams talking about having their revenge about twenty minutes before the captain last went ashore.

By Rebbeck-Did not remember him saying near the galley that Adams had struck the captain, and that the mate was calling for assistance.

James Francis, seaman, said on the Saturday evening he was in the galley with the last witness and the cook. Heard a scuffle apparently aft. Upon hearing the chief mate call he and last witness came out. First met McLean who was followed by Adams who said "The son of a -----, I have had my revenge, and have done for him now." Assisted to carry the captain below.

By Adams-Heard you use the words distinctly.

Prisoner Adams-I never mentioned anything about revenge.

By McLean-Was near the fore-rigging when he heard Adams and him talking about revenge. Did not hear him (McLean) say he would be revenged.

By Rebbeck-Did not remember that he came to the galley door or that he (witness) asked him was the matter aft, or that he (Rebbeck) told him Adams had struck the captain.

Luke Gidney, seaman of the Tongoy, said he joined the ship at Liverpool. At tea on the Saturday in question Adams and the others were talking, but he did not know what about. Saw Adams with the cook's rolling pin at tea after he had spoken to the captain. He had it in the breast of his coat. McLean after tea asked witness if he would go aft and have a row with the captain, and so get clear of the ship. Refused to go. Saw the four prisoners go aft to the poop. They asked the captain to give them a decided answer as to what he was going to do with them. The captain told them , as before, that he would tell them on Monday morning. The captain called witness aft and asked him if he refused duty, and he said "No." After he had done talking with the man, and was walking away, the prisoners got on the poop. As they went on the poop the captain put up his hand, and said "Now, now," and wished them to go back. He turned round and was going below, when Adams struck him once with something. Assisted to carry the captain below.

Adams-Do you know if I had my coat on when I went aft?
Witness-I don't know.
Adams-You said I had a rolling-pin in my breast?
Adams-I had not the pin till after tea time. You have made a mistake. When we went aft to the captain had any of us got coats on?
Witness--I don't know.
Adams-You know where I had the pin?
Witness-Yes; in your breast.
Adams-Under my coat?
Witness-I don't say so. You took it from your breast.

McLean-You say I asked you to have a row?
McLean-Did you not say you would like to be clear of the ship, and yet you would not like to?
Witness-No; I said I was satisfied with the ship.

Rebbeck-You refused duty?
Witness-I don't know.

McLean-Did you not say you would like to leave the ship?
McLean-And I said, "Why do you not come out?" Luke, you are a perjured man. You refused duty like the rest of us. Why did you not come out?
Witness-Because I wanted to work.
McLean-Did you not come forward and say "If anyone will double-bank me I will join you?"
Witness-No; I said I did not want to see any violence used. McLean-Did you, when the captain was leaving, hear any revengeful expressions used?

By Rebbeck-Heard you say that they had no business to go down into the captain's cabin. Do not know if Adams called you from the forecastle. Do not know if Adams said he was going to get a satisfactory answer.

By the Crown Solicitor-I said I would not go to sea short-handed.

McLean-Did not the captain say to me he would give a decided answer on Saturday morning?
Witness-I don't remember.

Adams-You say you had no fault to find with the vessel. Were we not short of beef and pork on the voyage out?
Witness-That was your own fault.

McLean-How many kicks did you see me give?

Adams-How did I strike him? Was it a swinging blow?
Witness-No; just with the stump of your arm downwards.
Adams-That's right.
Rebbeck-Did you not refuse to weigh anchor?
Witness-Yes; but that was after all of you did so.
Rebbeck-You were just as bad as any of us.

Vincent Buckley, steward and cook on board the Tongoy, said-He used a rolling-pin in the galley on the afternoon of July 26. Washed it, and put it out to dry. Saw Adams pick it up, look at it, and put it down again. Looked for it afterwards, but was unable to find it, and has never seen it since. It was small and rough at one end, making it better to have a good hold. The other part was perfectly smooth and round. The witness then referred to the assault, at which time he was in the galley. Rushed out on hearing the noise, and found their captain lying down.

By Adams-Never heard you make use of any bad language or threaten. Told you the captain was not much hurt.

Adams-I went forward to see how the captain was-whether he was hurt, as I had no ill-feeling against him.

By McLean-Did not hear you say either that you were glad, or that you were not glad, the captain was hurt.

Adams-What was the length of the rolling-pin?
Witness-About eighteen inches.
Adams-Then it was not the stick I had.

His Honor-What kind of wood was it?
Witness-American elm. His Honor-Was it heavy?
Witness-The carpenter said it was heavier than deal.

Alexander Adams recalled (examined by McLean)-Spoke to the captain about the delay in getting under weigh through their not working, and asked him how he was going to get to sea so short-handed. The captain and the crew had shipped for the run, and would have to return by the run. He would not give any decided answer as to how he was going to get under weigh. By Adams-Did not remember saying that it would be better to go to gaol in Adelaide than in Newcastle, because they would be better treated in Adelaide.

Arthur Burchell, police-constable, said on the 24th July he took Adams and McLean from gaol upon a deliverance warrant to return to the ship. They refused to go till they saw the warrant and objected to have the irons put on them. McLean hit him in the mouth, and Adams kicked him on the leg. They said they would soon be back in gaol. Took the boot of McLean on the 28th July.

By Adams-The conversation at the Gaol was directed more particularly against the captain. Took no notice of the remarks, as sailors, on being taken to or from gaol, generally threatened violence, but became quiet on going on board. Did not remember hearing him say that he would strike the captain, or that he had any ill-will against him. He said the vessel should go to the bottom before he would go on board; also, that the captain was all right on shore, but at sea he was a devil.

Prisoner Adams-I never did have any ill-will against the captain. He made me his steward coming out, and always treated me well. I knew the captain and his family, and all belonging to him.

By McLean-When he took him and Adams from gaol, he advised them to be good boys, and conduct themselves properly when they got on board, as he believed any grievances they had to represent would then be fairly considered. Adams said McLean could talk a good deal on shore of what he would do, but on board, he was a coward.

John Smyth, of the water police, said he arrested the prisoners for the murder of the captain of the Tongoy. After witness took Adams into the yard, he said, "Is the captain dead? I said yes. He said "If I had known that, you would never have brought me ashore." The other prisoners said nothing.

By Adams-You gave me to understand that you would do away with yourself.

Adams-I did not know the captain was much hurt, and when I heard it, I felt as if I could make away with myself.

Sergeant Doyle said-On the morning of the 27th went on board the Tongoy. After searching the captain and making enquiries, returned to the shore. Two constables brought the prisoners ashore. On Sunday afternoon read the charge of murder to Adams. He said nothing. He subsequently sent for witness, and said "I want to tell you we were all in it. I struck the captain twice, and McLean kicked him." McLean was not present. Asked him what he struck the blow with; was it a belaying-pin? He said he didn't know-he said "I can't say." The next morning read the charge over to the four prisoners, and cautioned them all round. They said nothing. Saw blood on McLean's boot. There was no blood in the cell. Adams seemed to be much troubled, and so witness put Edgar with him. Was present at the Port Adelaide Police Court when a charge was laid by McLean against the captain of the Tongoy for an assault. It was dismissed. The captain went out with his solicitor, and almost immediately afterwards returned, and a charge was laid by the captain against McLean for an assault within the precincts of the Court. Saw the captain's mouth cut, and blood was flowing from the wound.

McLean said he had a charge of an assault against the captain, but the information was incorrect; it should have been for threatening language. The captain jeered at him.

The prisoner called the mate,

Wm. Bruce Ferguson, who said he did not call any one particularly to turn to. Sang out-"Man the windlass" by the captain's orders and did not speak to any one specially. Rebbeck refused duty then. Edgar and Gibney refused duty. After the captain was struck, Gibney returned to duty, for he manned the boat to go for the doctor then.

Adams said the captain used to get drunk and came forward and abused them.

The witness said the captain had been drinking on the Friday night, but not on the Saturday.

By McLean-Saw the captain struck. Saw no one else strike him. By Adams-you ran aft, and threw the rolling pin overboard.

McLean said the captain would not let him have his clothes, and no bed to lie on, and he said he would not work till he got his clothes.

The prisoners were then asked if they had anything to say.

Adams said he had no ill-feeling towards the captain, who had always been kind to him, and who had removed him from "forward" to the stewardship, but he had made up his mind to run away to Australia, and it was for that purpose he shipped. When he reached Port Adelaide, he was advised to run away, so he thought he would "clear off" and he smashed a cabin skylight. The captain came down and kicked him, and put him in irons, though he was only in his shirt, and it was a cold night. He was going to gag him, and called him a bastard. About 6 o'clock that morning he got on deck, and into a boat, and though still ironed he skulled [sic] her ashore, and went to the Police-Station. He consulted a lawyer, intending to sue the captain for defamation of character, but was unable to do so. When he was put on board after his imprisonment by the captain for smashing the skylight, he said he would not "turn to" until he had seen a Magistrate. He told the captain that he had no bed, nor no changes, and the captain said he could not help it. He said "Go for'ard" and he (Adams) said he would not until he had seen a Magistrate. Neither Edgar nor Rebbeck had anything to do with the assault on the captain.

McLean said he wanted to get ashore and see a Magistrate because the captain had threatened his life on the high seas. He went to the Clerk of the Court and described the affair to him, and he stated that an information for an assault was the correct procedure. An information for an assault was accordingly laid, but the case broke down, as no assault had been committed, and the captain jeered him. He got in a passion and struck him, not on the mouth, as had been said, but over the right eye. He was sent to gaol for three months because of this. He thought he was clear then, but the contrary seemed to be the case. He had never any ill-feeling against the captain, who was right enough when sober, but when drunk a regular devil. When the captain came on board he said "Captain, will you give me my clothes?" He said "I will give you a shift" and that was the reason he refused duty. As to the blood being found on his boots, he might say he was working in the slaughter-house near the Gaol, over his boots in blood. The mate and another man were present when the captain was knocked down, and neither of them stated that he (McLean) kicked the deceased. He told the captain that he would suffer any imprisonment rather than go on board the vessel again. Neither Rebbeck nor Edgar spoke a word to the captain; they were simply called up to know what they would do.

Edgar said he never signed articles till they were 56 days out. He was called into the cabin then, and asked to sign. He refused, and the captain said, "It makes no difference, you can leave when you get in port, and I shan't trouble after you." When they arrived at Port Adelaide he asked the captain if he could leave, but they would not let him. When he went aft on the evening of the assault he had no intention of striking the captain. He refused duty also because there were not hands enough to man the vessel.

Rebbeck went into a long account of conversations on board, of the refusals of some of the men to work, and then went on to speak of the assault. He said Adams went up to the captain and said "You called my mother a -----," and then he struck him on the face. The captain fell on his back, and then turned over on his side, and Adams struck him on the head as he was down, and ran aft. Afterwards heard him say "He called my mother a -----, and me a bastard, and I've got satisfaction." One of the men said "It was an ungodly blow you gave him, Joe." He said "Yes, I didn't intend to give him such a blow." The next morning Joe was laughing and chaffing him (the speaker); so much so that he said "You are laughing now, but you may be crying yet;" and sure enough his words came true, for shortly afterwards Joe was crying and tearing his hair, having heard of the death of the captain. He (the speaker) did not intend to strike the captain, and when he heard he was dead any one could have knocked him down flat. He felt very sorry that the captain had died, and when he heard of his death he knelt down and prayed earnestly about it.

Adams said he would like to make some further remarks. He was accused of taking up the cook's rolling-pin. He never did so. He went to the captain when he came on board and said "You had better let me go ashore." The captain said "No," and he went aft. McLean had the rolling-pin. (McLean-"What, me?") and he (the speaker) said, "Go for'ard." He would not, and he (the speaker) said, "You need not." Someone said, "Take your coats off, boys," and they took their coats off. Saw the pin lying down by the galley door, and took it up and put it in his trousers pocket. Thought the captain might have a revolver and when he turned his face and held up his hand he thought he might be going to shoot, and then pop down the companion, and he struck him on the side of the head, and as he was falling he struck him again. Then he ran aft and the mate following him, and as he turned round he saw McLean kick the captain. Then he did not feel contented, and wanted to see what was the matter with the captain. The mate said "All right, go back like a good boy," and he went back.

Rebbeck-I never had the slightest idea that Adams was going to strike the captain.

Edgar-I saw Adams strike the captain twice, and then McLean kicked him. Asked what the blow was struck with, and some one said "the cook's rolling-pin." McLean said "I kicked him, " and lifted up his boot to show the marks of the blood upon it.

His Honor, in summing up, said the prisoners had made statements reflecting upon one another, but the jury would not give these considerations in fixing the guilt on any one of them. What they would have to consider was-were they together, the whole four of them for an unlawful purpose, and were the blows struck in furtherance of the purpose; and so far as Edgar and Rebbeck were concerned, did they go forward to the captain in furtherance of an unlawful purpose-not altogether to strike him, but to do some act which would lead to their being sent on shore. What was alleged took place on the voyage out, and on Friday night, had no bearing on the case. It only showed, if it showed anything, theat the prisoners might have such feelings of revenge and malice that they would be likely to contemplate an act of violence. The Jury would have to decide by whom the blows had been struck, whether he was guilty of manslaughter, and what was the position of the others in reference to it. If they believed the evidence, it was clear that McLean at least went forward for the purpose of doing something that would compel the captain to send them ashore, and they would see that the evidence pointed to this. Three persons said that the captain turned away before the blow was struck. The mate said he was standing quietly by the companion; so that no provocations was given. The blows, then, were given in furtherance of an unlawful purpose, and they were blows which could not fail to produce grievous bodily harm. It was his duty to tell them that blows given with an implement of the nature of the weapon with which these were given, in furtherance of an unlawful purpose, not on a sudden impulse-the person who gave the blow terminating in death was guilty of murder, and it would be impossible to have any definiteness of murder if it did not include a blow given under such circumstances.

If they found Adams guilty, they must also find McLean guilty; not only because he asked another to go forward, but because when the victim was lying senseless on the deck he went up and kicked him on the head. He not only furthered an unlawful purpose, but actually assisted in the killing. Then they must consider whether Edgar and Rebbeck knew the object of Adams and McLean. If they believed that these two knew substantially what was the purpose of the others, it would be their duty to find them guilty of murder. Having read over most of the evidence, he repeated his directions as to the law, and then said there was no doubt a heavy responsibility rested upon them as Jurors in this case, but it was a duty upon the due performance of which the peace and well-being of society rested and the security of people's lives; and seeing this, he was sure they would not shrink from the responsibility.

Mr. Shanks, a Juror, referred to the case of poachers quoted by the Crown Solicitor, and said in that case the men were all armed. It was different to the circumstances attending the action of Rebbeck and Edgar.

His Honor said-If you think they merely went up to hear what the captain had to say, or for the purpose of inducing him to give a more favorable answer then before, you will find them not guilty; but if you think they contemplated blows being struck, you will find them guilty. The Jury retired at 3:45. At ten minutes past 4 they returned, and the prisoners stood up. Adams was evidently feeling his position, and his face betrayed evidence of is feeling. Rebbeck had an anxious look; the others wore a more composed look. The prisoners Adams and McLean were found guilty. Edgar and Rebbeck were found not guilty, as the jury thought they were not aware of the unlawful intent of the other prisoners. Adams and McLean were recommended to mercy on account of the provocation they had received and their youth.

His Honor-I will take care that that recommendation is forwarded to the proper authorities, and I have no doubt it will be taken into consideration with the other circumstances of the case. The law imposes on me the duty of passing sentence; beyond that the power lies in other hands. William Edgar and Benjamin Rebbeck, you are now discharged; but I trust that the trial you have passed through-the fearfull risk you have run-will render you less liable to be under the conduct of other persons, and make you cautious in your future career.

These two then shook hands with their comrades, and left the box.

The associate having put the usual question to the prisoners as to whether they had anything to say why sentence of death should not be passed upon them.

Adams said, spasmodically-Not guilty of wilful murder.

McLean-Not guilty either. In the evidence of Dr. Gething he explains the cause of the captain's death, which he says was caused by blows from a blunt instrument. Death, he said, would not have been accelerated by a kick, and that if he had been kicked an external mark would be shown, and, therefore, I do not think I am guilty. I am found guilty but I didn't intend to do the man any harm, as God is my Judge. I am found guilty, however, and must suffer, I suppose.

Adams-He always behaved to me as a father, and I had no intention of hurting him.

His Honor-You have been found guilty on evidence which would leave very little doubt on any reasonable mind of the wilful murder.

McLean-What constitutes wilful murder?

His Honor-Whether you contemplated the captain's death I don't know, but there is no doubt you were there to do some violence, so as to prevent his taking you to sea. I can find no excuse in any provocation you have received, although there appears to have been on previous evenings some violence on the part of the captain. On this occasion he seems to have been quiet and self-possessed, and it was evident that you were inclined to provoke him to some demonstration. It is now my duty to pass the sentence of the Court, which is that you be taken from the place where you stand to Her Majesty's Gaol, and thence to the place of execution, and that you be hanged by the neck till you are dead. I will take care that the recommendation of the Jury is forwarded to the proper authorities. Adams (in an agitated tone)-It is very hard on us. We have no friends here; we are not in our own country. If we had been we should have had a lawyer to plead for us.

The prisoners were removed, and The Court adjourned at 4:25 till next day.

Saturday, August 23rd, 1873

The Executive have commuted the sentence of death passed upon the murderers of Captain Withecombe into imprisonment for life, with hard labor. It would ill become us to find fault with the exercise of the prerogative of mercy, and-undoubtedly-murderers have been reprieved whose cases were fully as bad as that of the convicts now referred to. But it was strongly felt that the special risk which ships' officers run at the hands of reckless and brutal sailors, and the risk which passengers and all on board run from these murderous tendencies, called for a signal example of the terror of the law. Certainly, the reprieve will not be hailed with unmixed satisfaction, although it will relieve the minds of very many human individuals, who could not bear the thought of sending two young men so prematurely to their final account.

However, their lives are spared; but let it be known to all seafaring men, that Joseph Adams and Thomas McLean have had a very narrow escape from an ignominious death on the gallows. And now, what is their doom? Enforced labor in a prison as long as they live. They murdered their captain in order to be set at liberty before the period of their engagement had expired; now they have lost their liberty forever. Impatient of discharging the honest duties they voluntarily undertook to fulfil, they are now slaves for life. Many people think that imprisonment with hard labor for life is a punishment worse than death itself. Well, such is their punishment-a doom richly merited, and one which there is not the remotest prospect of being mitigated. For the whole of their earthly existence-shut out from society, cut off from all intercourse with their companions, and immured within the gloomy walls of a prison-will they have cause to lament their wicked and lawless conduct. It is to be hoped that this mournful event will have a salutary effect upon the minds of any other persons who may have sought to accomplish illegal objects by violent means. Should another such tragedy occur as that on board the Tongoy, there is no probability of a Jury ever of the Executive listening to such a recommendation, even were it made.



Many thanks to Ernest Rebbeck in Holden Hill, South Australia, for sending this story, painstakingly photocopied by his daughter-in-law from the dehydrated old newspaper.

Although Benjamin's age is given as 22 in this article, he had his 21st birthday on 7 November 1873, a few weeks after the trial. Perhaps he added a couple of years to his age when he went to work on the Tongoy-perhaps he didn't know exactly how old he was.

Benjamin Rebbeck married Harriet Rayner 14 February 1876 in Adelaide. They had five sons and six daughters. Ernest Rebbeck's father George James Rebbeck, born in 1890, was their eighth child. Ernest is the youngest of George's four children.

Benjamin Rebbeck and Harriet Rayner have had one hundred and eighty one descendants.


Transcribed August 1998 in California.

Judy Watten née Rebbeck
Box 874
Kenwood, California
95452 U.S.A.


If anyone wants Register Report of his descendants, can send that too. Been working on this line for a long time and many mysteries have been solved!


REF: email to Jenny Brandis by Judy Watten on 17 August 1998



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