Weight of Evidence

Forgery, drunkenness, prejudice, injustice ... The notorious Newtown Ejectment Case of the 1850s provides a fascinating slice of colonial life ... Matt Murphy's Weight of Evidence reviewed by Linda Funnell 

Scandalous land deals are nothing new in New South Wales.

The Newtown Ejectment case ran for 10 years in the middle of the 19th century and is claimed to be Australia's longest and most expensive legal action.

It encompassed two trials and an appeal to the Privy Council in London and involved some of the colony's most influential figures.

The catalyst was the arrival in Sydney of a Catholic Irishman, John Devine, in December 1846, to claim the estate of his great-uncle Nicholas Devine, who had died in 1830.

But, by 1846 the estate had been sold off to numerous individuals - many of them prominent figures in the colony, many of them English, many of them Protestant - and none of them were willing to relinquish "their" holdings.

The influence of the case (known officially as Doe dem Devine v Wilson) has been far-reaching, and has been cited in court cases around the world, as well as featuring in the High Court's Mabo decision in 1992.

However, its main interest for the lay reader is the picture it gives of colonial Sydney, including its porous nature that allowed assigned convicts to live away from their assigned places - indeed, to undertake other jobs - and the greed that outstripped good sense on the part of the purchasers (who became "the defendants"), who sniffed something amiss but went ahead and bought the land anyway.

At the heart of the case is Bernard Rochford, the kind of person who, in another era, might well have had a fine bridge to sell you.

A Galway Ribbonman, a commander of one of the bands of well-organised Irish Catholic outlaws who plundered the estates of Protestant landowners, Rochford was captured in 1820 and sentenced to transportation for life.

Trained as a lawyer, he had fallen out with his well-to-do Protestant family, and his reputation in the law left something to be desired:

... his tactics were often questioned by his peers and even magistrates who believed he was manipulating and procrastinating so as to line his pockets at the expense of his clientele.

When Rochford encountered Nicholas Devine in Sydney, the seeds of the Ejectment Case were sown.

Nicholas Devine had arrived on the Second Fleet as a superintendent of convicts, and in the course of his career received land grants totalling 210 acres covering the present-day suburbs of Newtown and Erskineville.

He named his farm Burrin, after the village he hailed from in Cavan, Ireland. At a time when Catholics were forbidden to own property in Ireland, these grants would have been particularly sweet.

Devine seems to have enjoyed the novelty of his position as an Irishman who had authority over Englishmen - a contrast to the situation in his native land:

Just as he took pleasure in exaggerating his Irish accent so as to reverse the role in the convict hulks moored in the Thames, so too he now liked to boast of being part of the new country's landed gentry, leasing chunks of his land to a string of English tenants ... [who] would necessarily clear it for him.

His position also allowed him to redirect government resources into developing Burrin Farm. In addition to his 120-acre grant, Devine was also given:

... a 14-year lease of 8 acres at the head of Farm Cove with the intention of experimenting with orchards of different imported fruit trees and tobacco ... this grant of pristine harbourside land became Devine's first experience of making a dishonest gain from the government's benevolence. Most of the trees and seeds that were intended to be sowed on the land adjacent to Farm Cove, and many of the assigned convicts that superintendent Devine had hand-picked to work the land, were instead transported and put to use three miles south at Burrin Farm ... [this] was not merely condoned but actively encouraged as many others were up to their necks in similar schemes.

But by 1825, when Bernard Rochford took up residence at Burrin Farm, Devine was in a bad way.

He was in his 80s, and the days when he had ridden proudly around the colony on one of his fine thoroughbreds were long gone.

His brother-in-law, George Crossley, a solicitor and convict with an eye for the main chance, had died two years earlier, and however self-interested Crossley's care had been, its absence left Devine and the farm vulnerable.

Into this vacuum stepped Rochford.

Rochford was meant to be assigned to a man called Cullen, but managed to convince people that he was assigned to Devine.

Over time he seems even to have convinced people that he was Nicholas Devine, as the frail original became increasingly housebound. He began to style himself as Devine's "agent" and regularly attempted to sell off parts of Burrin Farm, which he repeatedly (and tellingly) misnamed "Burn Farm".

When Devine died, on 29 May 1830, his will - dated just three weeks earlier - named Rochford executor and chief beneficiary.

One of the key questions at the eventual trials was Devine's state of mind in his final years. Was he of sound mind?

There was considerable evidence that his capacities were very limited, that he was unable to hold a spoon and feed himself and often hid under the bed with a sack of sugar.

Was this a man able to transact property or dictate the terms of his will?

The defendants countered with witnesses of their own, though not all of them helped their cause: a Dr Bland "gave a detailed description of how he had visited the dying Devine in the company of a man who had himself been dead for many years".

Rochford was unable to own land. He was an "attainted convict" - one whose death sentence had been commuted to life - and so "could not hold property, sue or give evidence".

Nevertheless, he found purchasers for Burrin Farm who were either unaware of his true status or prepared to overlook it.

Most of the sales went through his wife, a formidable free settler who had already buried two previous husbands, and who ensured that very little of the money from these sales went to Rochford, whose drinking and gambling simultaneously spurred his need for money and rapidly vaporised any he came by.

The 30 defendants listed in the case - some of whom had built fine villas on the land - included a number of aldermen, a member of the Legislative Assembly, a director of the Bank of New South Wales, the editor of the Sydney Morning Herald, the Clerk of the Legislative Council and Collector of Internal Revenue, a Presbyterian minister, a solicitor general and a host of businessmen. 

The chance of an impartial jury was slim, and the Catholic Freeman's Journal summed it up thus:

Very little hopes were ever entertained for a fair issue to this case by those who were best acquainted with the predominant feelings of the majority of our Sydney special jurymen, or that an impartial verdict would be returned, where the interests of so many of their friends or neighbours were so deeply involved.

Given the strength of the vested interests, it is a testament to John Devine's doggedness in pursuing it that the case was resolved at all.

Matt Murphy's passion for the Newtown area shines through this book, and he includes a generous chapter of "Digressions and Postscripts" of further snippets of local history not directly related to the case, including an analysis of the evidence for Newtown identity Eliza Donnithorne being the inspiration for Dickens's Miss Havisham in Great Expectations.

Eliza Donnithorne's property abutted Burrin Farm and had been subject to a separate claim while Devine was still alive. 

This is a lively account that manages to keep the many strands of the case clear, and paints engaging pictures of the vain Devine and the devious Rochford and the supporting cast of colourful characters.

There is a thorough listing of references at the end of the book, but unfortunately no index, and no endnotes to lead the reader to specific sources for specific details.

Nevertheless, this is a fascinating and revealing slice of Australia's colonial history.

Matt Murphy Weight of Evidence Hale & Iremonger 2013 PB 294pp $29.95

Reviewed by Linda Funnell of The Newtown Review of Books