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

R. v. Hawker [1822] NSWKR 4; [1822] NSWSupC 4

Aborigines, killing of - murder - manslaughter

Court of Criminal Jurisdiction

Wylde J.A., 10 June1822

Source: Sydney Gazette, 14 June 1822 [1]

            Seth Hawker was indicted for the wilful murder of a black native woman at Illawarra, or the Five Islands, on the 15th April last. The principal features attending this case are as follow: The prisoner was an overseer upon an estate at Illawarra, belonging to Captain Brooks (the Magistrate that had committed the prisoner to take his trial for the offence with which he now stood charged before the Court); and, upon the night of the 15th, was alarmed by the violent barking of the dogs upon the farm. The prisoner was induced to arise, and in company with others proceeded, without hesitation, in the direction to which the watchful animals conducted them. The prisoner was lost sight of for a few moments by his companions, in which interim the discharge was of the musket was heard, which he had seized in the house upon the first alarm. When he returned, the prisoner said he thought he had shot something, or somebody. He was desired to return to the dwelling with his companion, and reload the piece; and again went in pursuit, the dogs continuing to bark. The prisoner, with another man, proceeded through a corn field, which was enclosed, and just as they had quitted it, on the offside, a figure was beheld in the act of endeavouring to effect its flight. The prisoner fired and the poor object fell, which (to be brief) turned out to be an unfortunate black native woman. The poor thing, it is supposed, was shot dead, as the body was found the next morning much mangled by the dogs. Two nets, such as the natives carry their food in, were found containing shelled maize, one of which was full and held about a peck. The prisoner was properly advised, by a brother overseer in the same concern, to hasten to the district constable with all speed, and inform him of the unhappy circumstance, so that the nearest Magistrate might become acquainted with the fact, and proceed accordingly. It was proved by the constable that the prisoner followed the directions given him, and hence became committed. From the whole of the evidence on the part of the prosecution it was easily observable, that no murderous intention had existed in the mind of the prisoner; nor did any circumstance transpire, during the arduous examination of the witness by His Honor the Judge Advocate, to enfix even the most remote degree of manslaughter upon the prisoner. As was the case in former times and not many years since well to be remembered, no consequence of the decisive measures that were resorted to by the Government for the protection of the settler, and his family, the natives are excessively troublesome and annoying in the neighbourhood of the Five Islands, during the corn season. This last season that had been remarkably active in committing depredations; in the space of one night 100 or two of them would take the liberty of clearing a field of every corn and thus ruin the hopes of a poor hard-working man's family. This species of bitter robbery had been on repeated, and the natives became worse daily, purloining every thing that came in their way. One man, of the name of Graham, who has a wife and large family, was near being killed in the act of pursuing those sable robbers. One night a party had stripped his field and its produce; and in the morning himself, and eldest son, went in pursuit. They fell in with five of the natives, who had two nets full of the preceding nights spoil. He required them to surrender the corn, when they made off. Graham then fired at the legs of one of the natives who had a net; when one of them, armed with a bundle of spears, was preparing to throw at Graham who lost no time in making up to him, and with the butt end of his musket broke all the spears, which would have been immediately discharged at him, had not one of the other natives, who had flown, taken the wommerah with him; to which circumstance Graham and his son, may doubtless owe their lives. The native then took from his girdle a, tomahawk, with which he endeavoured to cleave the head of Graham, when the latter, at the same instant, seized from the hand of his son a sword, with which he cut off the hand of the native that held the tomahawk, when the Black immediately made off, with the loss of his limb. This circumstance came out, among others, upon the trial, which shewed that the prisoner was only endeavouring to protect that property that was confided to his care though it was to be lamented that a life (in such a case) had been untimely destroyed. His Honor the Judge Advocate wished it to be properly and lastingly impressed upon the minds of all, that the aboriginal natives have as much right to expect justice at the hand of the British Law, as Europeans; and that such ever would be the case; in this instance it was exemplified. The prisoner was acquitted; but previous to being liberated from custody, received that pathetic and energetic admonition, which, it is to be anxiously hoped, will ever remain indelibly and profitably stamped upon his conscience.


[1] The common theme of provocation in cases concerning Aborigines is once again evident in this trial. The Judge Advocate himself prompted witnesses to excuse Hawker's crime. In the trial papers, he first asked whether local Aborigines had been "troublesome" and whether they had been warned about the consequences of thieving. Secondly, the court asked whether witnesses believed that Seth Hawker had fired into the dark cornfield in fear for his life. Most answered yes to the first question. To the second question, Thomas Poole attested that Hawker was in fear of his life because the barking of their dogs suggested that more than one Aborigine was in the corn, and because of the "treachery of those people". A neighbouring freeholder also attested to the habitual thievery of local Aborigines and argued that Aborigines "have frequently threatened to kill me to burn the wheat and fire the house". See Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ797, p. 299 (no. 13); and see L. Ford and B. Salter, "From Pluralism to Territorial Sovereignty: The 1816 Trial of Mow-watty in the Superior Court of New South Wales" (2008) 7 Indigenous Law Journal (forthcoming).

Published by the Division of Law, Macquarie University