Decisions of the Superior Courts of New South Wales, 1788-1899
R. v. Kirby and Thompson  NSWKR 11;  NSWSupC 11
Aborigines, killing of
Court of Criminal Jurisdiction
Wylde, J.A., 14 December 1820
Source: Sydney Gazette, 16 December 1820
John Kirby and John Thompson were indicted for the wilful murder of Burragong, alias King Jack, a native chief at Newcastle, on the 27th of October; and the first witness called in support of the prosecution:
Isaac Elliot, a superintendent at that settlement who deposed that the two prisoners charged were employed in the blacksmith's shop there; that Kirby had been removed thither from hence, two years ago, under sentence of the Criminal Court; and that Thompson was also sent thither, for endeavouring to effect an escape from the Colony; that on the 26th of November they were absent from their work, and he discovered that they had both run from the settlement; which being reported to the Commandant, he immediately dispatched a military party, attended by two constables, in quest of them. In ten minutes after the party had left a black woman arrived with information to deponent of two men being taken up by some natives, who were conducting them into the town: the... party were in consequence recalled from their adopted route and joined by deponent, went out to meet the natives with their prisoners; and shortly met a number of natives (accompanied by the two prisoners), all armed with spears and other weapons, the murdered chief guarding Kirby: both the prisoners very soon descrying deponent and the pursuing party: immediately whereupon the natives set up a yell and shout, and clearly articulated the words "Croppy make big Jack booey" by which was to be comprehended that one of the white men had killed Jack their chief; whom the prisoner Kirby was seen to raise his arm to seize upon, but fell himself from a blow by a waddy.
Witness further deposed, that no blow was struck by the natives until the murderous act had been committed by the prisoner Kirby. The other prisoner at the bar had only endeavoured to effect his escape, but was secured by one of the constables, as was Kirby also, who had risen, and endeavoured to run off. Deponent saw the deceased in a wounded state, by some sharp instrument, in the belly, and bound him round: had him conveyed into the town; had a search made for the destructive implement, which could not be found. After ten days survival, the deceased went to deponent with an order from the worthy Officer that commands the settlement, to receive a suit of clothing, and then said he was murry bujjery, meaning that he was much recovered; but in five days after, deponent heard that this kind, useful, and intelligent elder had breathed his last. The fatal wound was given on the 27th of October, and he painfully languished till the 7th of November ultimo.
James Wills, one of the constables who attended the party, corroborated the foregoing evidence; and particularly to the fact that no blow was struck by any native before he saw Kirby stretch out his arm towards the wounded man, and heard the yells and shouts of the natives; and that while in the act of hand-cuffing the two prisoners, the prisoner Kirby expressed his regret at not having killed the deceased outright. He saw the deceased a few days after in the woods, and he then expressed a complaint of much illness, owing to his wound, and in a few days after he was dead.
The other Constable of the party, Mencelo, corroborated the foregoing testimony.
Mr Fenton, assistant surgeon of the 48th Regiment, gave testimony of the deceased having been brought into the settlement wounded, and was attended to with every care, in his own quarters; where he would not continue after the third day, though every persuasion was used to detain him, he being desirous of restoring to the expedients practised by themselves in wounded cases. Dr Fenton described the wound to have been received in the abdomen, and extremely dangerous. In five days after he is quieting, he returned, and Dr Fenton dressed his wound, he then appearing in a convalescent state; but he soon after heard of his death. Dr Fenton had no doubt of the death ensuing from an internal mortification in the abdomen, occasioned by the wound proved to have been inflicted by the prisoner John Kirby; against whom a verdict was returned of Wilful Murder; and sentence of Death was immediately pronounced upon him - his body directed to be dissected and anatomized. John Thompson was acquitted.
Sydney Gazette, 23 December1820
EXECUTIONS On Monday last [18 December 1820] John Kirby, who was found guilty of the late Criminal Court for murder, was executed pursuant to his sentence.
 This is earliest record we have found of a European being convicted and executed for the murder of an Aboriginal native. This trial took place more than 30 years after British colonisation began, but well before the Myall Creek executions in 1838. There were a number of similarities to R. v. Powell and others, 1799 above, but with a dramatically different legal result. Kirby was tried and executed not least because he was a convict and had killed an important indigenous chief and ally of the penal settlement. Ford argues that he was executed for his breaches of the protocols of diplomacy that existed outside the formal judicial framework, as much as for his breach of the law.
The execution took place on 18 December 1820: Sydney Gazette, 23 December 1820. See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ792, p. 496 (no. 39); and see
L. Ford, Settler Sovereignty: Jurisdiction and Indigenous People in Georgia and New South Wales 1788-1836 , Ph.D. dissertation, Columbia University 2007, (forthcoming revised manuscript: Harvard University Press, 2010), 224-225.