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

R. v. Hewitt [1799] NSWKR 2; [1799] NSWSupC 2

Aborigine, murder of

Court of Criminal Jurisdiction

Dore J.A.., 1 February 1799

Source: Court of Criminal Jurisdiction Minutes of Proceedings, 1798 - 1800, State Records N.S.W, X905 [1]

[68] Thomas Hewitt charged with the wilful murder of Willie Cuthie (a native) was put to the bar and arraigned on the indictments.

            Plea not guilty.

            No prosecutor appearing and the native widow of the deceased being incapacitated from giving such testimony as could be admissible in law to affect the life of the prisoner he was by the court.

            Acquitted.

            But being further charged with being an incorrigible rogue and vagabond and pleading not guilty.

            Thomas Smyth, the Provost Marshal being sworn, deposeth that he verily believes the prisoner to be a reputed rogue and vagabond and an idle, disorderly person without any visible way of getting his living, being frequently at large and found guilty of flagrant acts of vagrancy in the woods.

            Edward Collins, a district constable, being also sworn deposeth that he's well known the prisoner. That he is frequently at large and wandering abroad in the woods, and inhabiting and associating with the natives, contrary to order and regulations and that he had no visible means of maintenance.

            Sentenced to receive 300 lashes in public and at a time when the greatest number of natives can be assembled together to witness his punishment after which he is to work in the gaol gang for the space of 12 calendar months from this day.

            [Further notes:] ... [90] Thomas Hewitt to the first count of the indictment charging him with wilful murder pleaded not guilty.

            The prosecutor at the hearing and the native widow of the deceased not being capacitated to give sufficient testimony to reach the life of the delinquent or substantiate the count laid in the said indictment he was by the court hereupon acquitted.

Note

[1] Judge Advocate Richard Atkins was one of the first colonists to raise the issue of whether Aborigines could give evidence. He asked the question in his widely cited "Opinion on the Treatment of Natives" written in 1805. Atkins said "the evidence of persons not bound by any moral or religious tye can never be considered or construed as legal evidence". Castles examined why such attitudes were held: "there were two basic ways in which the admission of Aboriginal evidence was affected. First, there was the basic difficulty of communication when an Aboriginal witness had no knowledge of English, or at best only a rudimentary understanding of the language. This situation was exacerbated when reliable interpreters could not be found. Secondly, as Burton J. of New South Wales outlined it, insuperable difficulty could ensue 'where a proposed witness had been found ignorant of a Supreme Being and a future state.' Under the prevailing notions of English law, sworn testimony could not be received in such circumstances."

            See Castles, Australian Legal History, 532-533; Atkins, "Opinion on Treatment to be Adopted Towards the Natives", 20 July 1805, Historical Records of Australia, series 1, vol. 5, 502.

See also Bench of Magistrates, 1788-1820, 26 January 1799, SZ767, Reel 655, 43.

Published by the Division of Law, Macquarie University