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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Millar and Bevan [1797] NSWKR 3; [1797] NSWSupC 3

Aborigines, killing of, insufficient evidence

Court of Criminal Jurisdiction

Atkins J.A., 9 or 10 October 1797

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, April 1795 to December 1797, State Records N.S.W, 5/1147B[1]

[353] William Millar and Thomas Bevan were brought before the court for that they not having the fear of God before their eyes but being moved and seduced by the instigation of the Devil on or about the sixth day of October in the thirty fourth year of the reign of our Sovereign Lord George the Third now King of Great Britain etc. with force and arms on the north-shore in county aforesaid in and upon a native commonly known by the name of Tom Rowley in the peace of God and our said Lord the King then and there being feloniously, willfully and of their malice aforethought did make an assault. And that the said William Millar a certain gun value 70 shillings then and there charged with gunpowder and pistol balls of slugs, which gun he the said William Millar then and there had and held to against and upon the said native then there feloniously, willfully and of his malice aforethought did shoot and discharge, and that the said Millar with the pistol balls or slugs aforesaid out of the gun aforesaid then and there by the force of the gunpowder shot and sent forth as aforesaid the aforesaid native in and upon the right thigh of him the aforesaid native then and there with the pistol balls or slugs aforesaid out of the gun aforesaid by the said William Millar aforesaid shot discharged and sent forth feloniously, willfully and of his malice afore they did strike, penetrate and wound, giving to the said native one mortal wound, of which wound he languished and languishing did die and that the aforesaid Thomas Bevan then and there [354] feloniously, willfully and of his malice before thought was present aiding, helping abetting, comforting, assisting and maintaining the said William Millar the felony and murderer aforesaid in manner and form aforesaid to do and commit against the peace of our Sovereign Lord the King his Crown and Dignity.

            Acquitted for want of evidence.

Note

[1] This is the first of only four trials based on settler-indigenous violence in the 25 years after 1788. Richard Atkins tried this first case, Richard Dore the second and third (R. v. Hewitt, 1799, and R. v. Powell and others, 1799) and Ellis Bent the fourth (R. v. Luttrell, 1810). All four are reported here.

As Venecia Wilson kindly reminded us, there was also a magistrates' hearing about the killing of a native boy in 1794, which preceded this (Murder of Native Boy case [1794] NSWKR 2; [1794] NSWSupC 2). That did not lead to a charge and trial however.

It was common for the accused European settler in these and later cases to evoke self-defence or provocation to secure an acquittal. Other acquittals were based on "a lack or want of evidence".

See Castles, Australian Legal History, chap. 18; A. Atkinson, "Richard Atkins: the Woman's Judge" (1999) 1 Journal of Colonial History 115, 134; Atkins, "Opinion on Treatment to be Adopted Towards the Natives", 20 July 1805, Historical Records of Australia, series 1, vol. 5, 502-504.

Published by the Division of Law, Macquarie University