Decisions of the Superior Courts of New South Wales, 1788-1899
R. v. Fitzpatrick and Colville  NSWKR 2;  NSWSupC 3
murder - Aboriginal evidence - Newcastle
Supreme Court of New South Wales
Murder. - Cornelius Fitzpatrick and Thomas Colville were indicted for the wilful murder of John Bentley, a shepherd in the vicinity of the settlement of Newcastle. It appeared by the testimony of Robert Sears, an accomplice, that the prisoners and himself were in company on the way from Patrick's Plains to Newcastle; that, when within a few miles of the settlement, the prisoner Colville and the witness passed a hut occupied by Bentley, the deceased, leaving behind Fitzpatrick and a black native. That when about 60 yards a-head of Fitzpatrick, the witness heard the report of a musket. Upon Fitzpatrick coming up, the witness Sears enquired the cause of his discharging his piece at that time, it being in the night: - the reply elicited was, that he had been shooting at a dog; and here, for the moment, further enquiry dropped. On their arrival at Newcastle, however, the native and the witness Sears were at the house of a constable, named Young, when the black-man expressed vast sorrow for what had been done by Fitzpatrick, whom he, the native, then impeached with the death of "Old John," meaning unfortunate Bentley, the deceased. Further enquiry became instantly instituted, and the information given by the native proved to be too true! In the presence of the gaoler at Newcastle, it was also proved, that Fitzpatrick acknowledged to the discharge of the musket, which had occasioned the death of Bentley; at the same time exculpating the witness Sears, and adding that the musket went off accidentally. There was corroborative testimony of the fact, that the prisoner Fitzpatrick did fire the gun, and that the deceased met with death in consequence. The Members retired after the charge of His Honor the Chief Justice, and were occupied nearly an hour in the jury-room, when a verdict of Guilty was returned against the first prisoner, Cornelius Fitzpatrick, and Not Guilty against Thomas Colville.
The awful sentence of the Law was then passed upon the murderer, by His Honor the Chief Justice; which decreed that he should suffer death on Wednesday morning (yesterday). 
 Elsewhere in the same day's issue of the Sydney Gazette (p. 2, col. 1), it was noted that:
"The King against Fitzpatrick and Colville. - In the course of this trial it appeared that Bulwaddy, a black native, was present at some part of the transactions. His evidence could not be offered to the Court, inasmuch as he had not that belief in a superior Being, the avenger of falsehood, which the Law requires to sanction an oath. But, as he had made certain statements to a competent witness, in the presence of one of the prisoners, that witness was called upon to repeat them. The statements, however, did not affect the prisoner, and he [Colville] was acquitted on the whole case.
"Before the statements so made were received, Bulwaddy was produced, in order that the Court might judge of his capacity or inability to take an oath. He appeared to know well the distinctions between truth and falsehood, and appeared to have some apprehension of an existence after death; but not to have either a superstitious or religious fear of a superior Being, who would punish him if he should speak falsely. His testimony therefore could not be taken, except under the circumstances before mentioned."
 Forbes respited the sentence until Governor Brisbane could review the case. He told the Governor that "Your Excellency will observe that the evidence against the prisoner, is presumptive, and that without taking into consideration his confession, it does not completely bring home the Guilt of Murder to his charge - the confession is qualified, by the affirming of the prisoner, that he killed the deceased Bentley by accident and without knowing at the time that he had killed him.
"Your Excellency will also observe that there was a person present at the fatal scene, who could have proved the exact circumstances under which Bentley came to his death - that person is a native New Hollander, called Bullwaddy - but from the Rule of our Law, which requires a Witness to believe in a future state of Reward and punishment, his testimony could not be taken at the trial.
"I have felt that under the peculiar and perhaps unprecedented circumstances in which the Court was placed, that the best evidence (at least vital evidence) had not been produced; and that it was possible the crime of the accused might not have amounted to more than manslaughter , - I have therefore respited the prisoner, in order that your Excellency might have an opportunity of considering the case, divested on those restraints which the strict rules of evidence imposed upon the Court at the trial, and with that light which the evidence or statement of Bullwaddy will in all probability throw upon it." (Source: Forbes C.J. to Governor Brisbane, 24 June 1824, Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 1.)
Brisbane replied as follows on the same day: "After I had the honor of an interview with you on the subject of Fitzpatrick case, the Attorney General produced Bullwaddy , who I examined in his presence and he gave a clear and distinct account of the murder of Bentley which removed every doubt in my mind of Fitzpatrick having committed a cool and deliberate murder on the unfortunate Bentley. This link in the chain of evidence I felt necessary to fortifying my mind as to the guilty of the Prisoner, which Bullwaddy's testimony has completely turned against him and I have in consequence to direct the Execution of Fitzpatrick, the day to be decided upon by you." (Source: Brisbane to Forbes, 24 June 1824, Archives Office of New South Wales, 4/6651, p. 2. This correspondence is also quoted by C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 103.)
Under (1752) 25 Geo. III c. 37, s. 1 (An Act for Better Preventing the Horrid Crime of Murder), those who were convicted of murder were to be hanged the next day but one after the conviction (unless that day were a Sunday). By s. 4, however, the judge had power to stay execution, as happened in this case. On this Act, see R. v. Donovan, 1824.
Forbes reported this case in a letter to Wilmot Horton on 14 August 1824 (Catton Papers, Australian Joint Copying Project, Reel M791): "I have already discovered several defects in our act - among the more important is the want of means to get at the testimony of the native black people. They have no sense of an after state of rewards or punishments, but they are governed like ourselves by that instinctive love of justice, and natural law which always leads to the expression of truth where there is no superior inducement to falsehood. Lord Coke says an infidel is not to be taken as a witness - the light of latter times has dissipated this very barbarous notion - but still the exact application of our present rules of evidence will utterly exclude the testimony of all the aboriginal people of this extensive country for our Courts. A case lately occurred in which the injustice of the ordinary rule was forcibly felt - it was a case of murder upon circumstances - the only person present was a native black -the prisoner admitted the fact of killing, but stated it was by accident. The Jury convicted, altho' it was possible the excuse set up by the Prisoner might be true. I respited the sentence and recommended the Governor to have the black before him and inquire into those circumstances which we could not legally bring before the Court - the governor had up the native, and he gave in presence of the Attorney General, the fullest, clearest, and most conclusive account of the whole affair - Now was it not barbarous to exclude such testimony by a mere rule of Court, which was engendered in days of superstition, and framed by men who never heard of the consequences to which it would tend. Why is not competency confined to interest, and credibility left in all cases to the jury? Truth is a natural institute of mankind -it is founded in moral feeling -and providence has so guarded it, that perhaps it is next to impossible so to cover falsehood as to prevent its discovery, if sufficient care and means be used to expose it. I shall at a future period bring this subject under the official notice of Lord Bathurst." Forbes rarely wrote so strongly about what he saw as injustice.
Fitzpatrick was hanged on 28 June 1824, a week after the trial. The Sydney Gazette, 1 July 1824, p. 2, col. 4 reported that "He confessed the fact of having discharged the gun which wounded and killed poor Bentley, but averred it originated in accident. The justice of that sentence, however, which doomed him to an untimely end, he fully acknowledged; and hoped for mercy through the merits of Christ Jesus."
On Aboriginal evidence, see also R. v. Miller, 1824.
On Aboriginal evidence, see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, 532-534; B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1985, 15-17.