The Box at the Wharf Part Two
James Duval and the trial that cleared his name
Brian AJ Newman LLB
Employment and Human Rights Advocate | BAJN.au
On 14 January 1845, a Sydney jury acquitted my fourth great grandfather, James Duval, without leaving the jury box.
Chief Justice Alfred Stephen then described the acquittal as honourable. The Sydney Morning Herald reported him going further, expressing his belief that Duval was really innocent. [1–2]
Only weeks earlier, Duval had been implicated in one of the most disturbing murders reported in colonial Sydney. He had helped move a chest containing the burned and dismembered remains of Thomas Warne. A coroner's jury had returned a finding of wilful murder against him and John Vidall. Newspapers carried the story far beyond Sydney. [3–5]
The discovery at the waterfront began the story. The trial explains why an accusation that appeared so damning ended in an immediate acquittal.
The fuller records also answer a question that stayed with me throughout this research: why did the French Consul think so well of Duval, and what did he actually do?
The man whose death began the investigation
Thomas Warne collected accounts and rents. Contemporary reports describe his long dark hair, distinctive appearance and earlier disputes. One of those disputes involved Louis or Lewis Breton, who had been convicted of biting off part of Warne's little finger. Edward Charles Turner later gave an account suggesting that the injury had been self-inflicted. Warne subsequently complained to police magistrate Charles Windeyer about alleged threats from Turner. [4–5]
These events gave investigators reasons to ask questions. They did not prove a revenge conspiracy. Turner was discharged following the inquest. The missing finger joint had a more direct significance: it helped identify Warne's damaged remains.
Warne deserves to remain a person in this history. Recovering my ancestor's acquittal also requires acknowledging the man who was killed and the compelling reasons for investigating his death.
A carrying job became an accusation
On Sunday evening, 24 November 1844, a chest reached the Watermen's Stairs near Sydney's waterfront. The men involved in its removal were Vidall, Duval and Thomas Wilson.
Waterman John King was approached about taking a man and the chest across to the North Shore. [3–5]
The smell made King refuse. Vidall said the contents were pork. Fluid was noticed on the stones, police were called and the chest was opened. Constable Henry Porter pursued Vidall.
Sergeant John Nugent became involved in examining Warne's rooms. Human remains, blood and evidence of attempts at concealment turned a proposed boat journey into a murder investigation. [4–5]
Duval had helped arrange the journey. He knew Vidall and had previously worked for Warne. He was therefore connected with a transaction that demanded an explanation.
The question was what he knew.
That question can become obscured when the contents of the chest are read backwards into the mind of everyone who touched it. The trial required evidence about Duval's knowledge at the time he helped.
Wilson's account illustrates the problem. He said Vidall had engaged him for a carrying job at one shilling and sixpence. He understood Creole French and could not follow the conversation between Vidall and Duval. His evidence established his own involvement in moving the chest; it could not supply the meaning of words he did not understand. [1–2]
The importance of time to prepare
The Herald of 10 January records a development that deserves a place in the story of the acquittal.
On the previous day, defence counsel Robert Lowe sought a postponement supported by an affidavit from Mr Want, the defence attorney. Duval's defence was not ready. Vidall's was.
Lowe also argued that justice would be better served by trying the men separately. [6]
The court arranged for Vidall to be tried on Friday 10 January and Duval on Tuesday 14 January.
That gave Duval's representatives further time to prepare and allowed a separate jury to consider his position. The distinction between the defendants was reflected in the charge eventually put to Duval's jury: being an accessory after the fact, rather than a principal in the killing. [1–2, 6]
Preparation time can sound like a minor administrative matter when a case is retold. Here, it formed part of the process through which witnesses and explanations could be brought before the court.
Two defendants and two separate questions
Vidall's trial concerned whether he had murdered Warne. The five counts described alternative ways in which that one killing might have occurred. The court heard evidence about his presence at the premises, the chimney fire, the chest and Warne's possessions. George Frederick Stanley interpreted for him. [7–8]
Dr Frederick Mackellar and Dr John Silver's medical findings attributed death to a heavy blunt blow or blows to the head, followed by burning after death. Early descriptions of Warne being burned alive therefore require correction. The medical account and the later reported confession differ over the order of burning and dismemberment; that uncertainty should remain visible. [5, 9]
The Crown's circumstantial case was contested. Lowe questioned identification, motive, the interpretation of broken English and the possibility that witnesses' recollections had become more alike through discussing the events. Chief Justice Stephen warned against allowing horror at the crime to become hostility towards someone simply because he had been charged. [7–8]
The jury, headed by George Miller, convicted Vidall. He asserted his innocence before sentence, according to the Herald, and was sentenced to death. His later reported confession belongs to a subsequent stage of the case. [7]
Four days after Vidall's trial, Duval faced a different jury. Chief Justice Stephen and Justice John Nodes Dickinson presided. Attorney-General John Hubert Plunkett prosecuted; Lowe appeared for Duval, with Want as attorney. [1–2, 15–17]
The Crown still had to establish Duval's own criminal responsibility. Vidall's conviction could not answer that question for him.
The witnesses who placed Duval with his family
The defence called people who had seen Duval or his wife on Saturday 23 November, the evening on which the prosecution placed the killing.
William Hawkesley, a master mariner and employer, said he had paid Duval around six or seven that evening. He described him as industrious and well behaved and was prepared to employ him again. [1–2]
Francis Cohen saw Margaret Duval at Clark's public-house around half-past eight, accompanied by a child and a man he believed was Duval. Thomas Hurley saw Margaret at his shop between nine and ten, but did not see her husband. [1–2]
The qualifications matter. Cohen's identification of the man was a belief. Hurley's evidence concerned Margaret. Neither should be rewritten as an unqualified identification of Duval.
Margaret Sheehan, printed Sheen in The Australian, gave the more direct account. She knew the couple and saw them at her Prince Street shop between nine and ten. Duval stood outside holding the child while Margaret went inside. [1–2]
That detail has stayed with me: a father outside a shop with his child, preserved in a newspaper report for more than 180 years because it became evidence in a murder case.
Lowe connected these sightings with Mackellar's estimate of the time required to burn the body. They supported an account of Duval spending part of the evening working and accompanying his family. They weakened the theory that he had been helping with the killing or the fire.
They did not account for every minute, and they did not by themselves decide what he might have learned on Sunday. The allegation of knowing assistance still required examination.
The smell the key and the buckets
The circumstances against Duval were serious. He helped arrange the boat, handled or commented on the fluid at the waterfront and entered rooms containing a terrible smell. A convincing review has to confront those facts. [1–2, 4]
Other evidence gave them a different context.
Porter said Duval did not run away. Nugent described him accompanying police willingly to Warne's rooms and reacting with apparent surprise to the blood inside. That conduct supported Lowe's account of a man who had been used to assist with a carrying job. [1–2]
The key was another example. In the Herald's account of Vidall's trial, Porter stated that Vidall gave Duval the key after they had been taken into custody. Possession while escorting police upstairs therefore did not establish possession before arrest. [7]
The supposed necessity for an accomplice also weakened. A witness had described buckets being handed to Vidall from inside while he extinguished the chimney fire. Mackellar accepted that a table near the window could allow a man on the roof to reach the buckets himself. He also accepted that one person could separate the limbs with sufficient care. [1–2]
Those answers did not identify every movement in the room. They removed the assumption that the disputed tasks necessarily required another offender.
Why the French Consul stood by him
The French Consul was M Faramond, also printed Pharamond. French diplomatic records identify him as Jean Antoine Marie Faramond and place his service in Sydney between 1842 and 1852. [13–14]
His favourable opinion of Duval was explained in his evidence.
The Herald reported that he knew Duval and regarded him as honest and hardworking from what he had observed. Since Duval's arrest, he had also made enquiries about his character and received satisfactory accounts. The Australian recorded his view that Duval appeared to be a good husband and father. [1–2]
That is the strongest answer the records provide. Faramond had personal acquaintance, had formed an opinion through observation and had checked Duval's reputation with others after his arrest.
Other witnesses supplied a similar account. Guion had known and employed Duval for two or three years. Birnstingl had travelled from England with him. Vaillant had known him for about a year. Catherine Dowse, printed Douce in The Australian, knew the household and spoke of his conduct as a husband. An employer witness is named George Rattray in The Australian and George Butteny in the Herald; the inconsistent names require further checking. [1–2]
Some witnesses described Duval's intellectual ability in the blunt language of their time.
These were lay character opinions. They provide no basis for a retrospective diagnosis. Faramond's own recorded evidence concerned work, honesty and reputation.
There is also evidence of the Consul's broader role. During Vidall's trial, the Chief Justice credited his intervention with the appointment of defence counsel and praised Lowe and Want, both reportedly acquainted with the prisoner's language. The Herald records the Consul attending throughout that trial. [7–8]
That passage concerns Vidall. It shows consular efforts to secure representation for a French defendant. Faramond's separate character evidence at Duval's trial explains his particular regard for my ancestor.
How they first met remains unknown. The reports identify neither a family relationship nor a special service that Duval had performed for the Consul. Their evidence is sufficient to explain a favourable opinion without inventing a more remarkable connection.
An honourable acquittal
Duval's trial also exposed a formal problem with proof of Vidall's conviction. Court clerk J B Hutchinson initially produced the information carrying a memorandum of the result. Lowe objected that the proper conviction record was required. The judges agreed, and the Prothonotary, named as Mr Gregory in The Australian, subsequently produced it. [1–2]
The trial continued. The acquittal therefore cannot be attributed to a missing record that never arrived.
The Chief Justice directed the jury on the need to establish knowledge of the crime and guilt beyond reasonable doubt. The jury returned not guilty without retiring. He then spoke of Duval's honourable acquittal and the favourable character evidence. The jury left no separate written reasons, but the reported evidence and direction explain the substantial grounds for its verdict. [1–2]
A contemporary diary now held by the State Library of New South Wales recorded the honourable acquittal in its entry for 15 January. That was the day the diarist noted it; the detailed court reports place the trial on 14 January. [10]
The confession followed the verdict
The sequence becomes clearer with Bell's Life in Sydney of Saturday 18 January. It reports Duval's acquittal on Tuesday and says Vidall made a full and voluntary disclosure to gaol governor Henry Keck on Thursday. On that account, the confession occurred on 16 January, two days after the acquittal. [11]
In the confession published by several newspapers, Vidall reportedly accepted sole responsibility for the killing and concealment. He denied that anybody had helped extinguish the fire and said Duval and Wilson had merely been asked to assist in moving the chest without knowledge of what had occurred. [9, 11]
These are contemporary reports of a confession. I have not examined an original signed statement. Reprints in different newspapers also do not amount to separate confessions.
The timing is nevertheless important. The trial reports do not show this confession being put before Duval's jury. Bell's Life positively places the disclosure afterwards. The jury had already acquitted him on the evidence it heard.
A conviction prepared before the jury decided
The Parramatta Chronicle's item Rather Too Soon adds another troubling detail.
It reported that, on the Tuesday evening before Duval's trial had finished, a print showing likenesses of Vidall and Duval was ready for publication. Its description presented both men as convicted of Warne's murder. [12]
Vidall had been convicted. Duval had not.
The item does not establish who produced the print, how widely it circulated or what happened to it after the acquittal. It records a public narrative moving ahead of the court's decision.
Earlier reporting had also drawn Margaret into the accusation. She was arrested, and newspapers circulated references to an alleged disclosure without providing its contents. The materials examined do not establish a conviction against her. Her arrest deserves to be recorded without turning rumour into an admission. [5, 18]
What this history asks of us
Vidall was executed at Darlinghurst on 7 February 1845. Before the execution, The Australian questioned the consistency of mercy after George Byford, convicted in a separate case, received a reprieve. That editorial was an argument about punishment and executive decisions; it did not overturn Vidall's conviction. [19–20]
The case contains several questions of fairness, arising at different stages. Investigators had to pursue an appalling crime. The court had to assess each defendant's responsibility. A foreign accused person needed a practical opportunity to understand and answer the case. Public reporting needed to distinguish suspicion from a verdict.
These questions remain recognisable to me as an employment and human rights advocate.
People arrive with accounts that have already been compressed into labels. Their conduct can be interpreted through the worst allegation made against them. A fair opportunity to respond depends on time, access to the evidence and attention to what individual witnesses actually saw.
My family's connection gives this research a personal weight. It also gives me a responsibility to preserve the difficult details and the limits of the sources.
Duval helped move the chest. The trial examined whether he knew what it concealed. His jury acquitted him immediately, and the Chief Justice expressly described the outcome as honourable. The later reported confession reinforced the account that he had been drawn into a carrying job without knowledge of the murder.
That verdict belongs at the centre of his story.
Warne's death remains the crime at the centre of the case. Remembering the victim and accurately recording the acquittal allow both men their proper place in the history.
Sources and further reading
The following sources support this article. Spelling varies across contemporary reports. The companion chronological PDF brings together 41 distinct supplied newspaper PDFs, preserving all 159 original pages and adding an index and bookmarks. A separate full review provides the larger people register and comparison of the evidence.
Download all newspaper articles considered and cited.
1. The Sydney Morning Herald, 15 January 1845, p 4, Duval's trial, character evidence and acquittal. Trove article 12876734.
2. The Australian, 15 January 1845, p 3, Tuesday January 14 1845. Trove article 37158121. See also Morning Chronicle, 18 January, p 4, article 31744464.
3. The Sydney Morning Herald, 25 November 1844, p 2, Horrible Murder. Trove article 12407915.
4. The Australian, 27 November 1844, p 3, Horrible Murder and Inquest on the Late Mr Thomas Warne. Trove article 37124372.
5. Morning Chronicle, 30 November 1844, pp 3–4, Dreadful Murder of Mr Warne. Trove article 31744116. For later reporting, Courier, Hobart, 17 December, p 4, article 2950130.
6. The Sydney Morning Herald, 10 January 1845, p 2, Supreme Court notice concerning postponement and separate trials. Trove article 12876635.
7. The Sydney Morning Herald, 13 January 1845, p 4, Friday murder trial of John Vidall. Trove article 12876665.
8. Morning Chronicle, 15 January 1845, p 4, Supreme Court Friday January 10, Wilful Murder. Trove article 31744433.
9. The Weekly Register of Politics Facts and General Literature, 18 January 1845, pp 26–27, Domestic Intelligence, confession attributed to Vidall. Trove article 228134395.
10. State Library of New South Wales, manuscript diary, transcript a1502, entry for 15 January 1845, manuscript p 234. Digital transcript.
11. Bell's Life in Sydney and Sporting Reviewer, 18 January 1845, p 2, Local Intelligence. Trove article 59763749.
12. Parramatta Chronicle and Cumberland General Advertiser, 18 January 1845, p 2, Rather Too Soon. Trove article 228248665.
13. Archives diplomatiques, Sydney consulate, institutional history, reference 662PO, identifying Faramond's service from 1842 to 1852. Official catalogue.
14. Archives diplomatiques, FR MAE 432QO, Chancelleries Serie B 1850–1854, Faramond Pharamond Jean Antoine Marie, entry 432Q/281. Used for identification. Official inventory.
15. Supreme Court of New South Wales, Alfred Stephen, official Chief Justice biography. He was knighted after these proceedings. Court history. See also the judicial roster for John Nodes Dickinson.
16. Parliament of New South Wales, John Hubert Plunkett. Member biography.
17. Parliament of New South Wales, Robert Lowe. Member biography.
18. Parramatta Chronicle and Cumberland General Advertiser, 7 December 1844, p 3, Warne's Murder. Trove article 228248419. Earlier arrest reporting also appears in The Australian, 26 November, p 3, article 37125565.
19. The Australian, 8 February 1845, p 3, Execution of John Vidall. Trove article 37153893.
20. The Australian, 4 February 1845, p 3, Capital Punishment Byford and Vidall. Trove article 37158545.
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