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

R. v. Johnston, Clarke, Nicholson, Castles, and Crear [1824] NSWSupC 8

manslaughter - killing of Aborigines - criminal procedure - self-defence - Bathurst

Supreme Court of New South Wales
Forbes C.J., 6 August1824
Source: Sydney Gazette, 12 August 1824


Friday. [1] - The Attorney General [2] informed the Court, that he would present an information against John Johnston, William Clarke, John Nicholson, Henry Castles, and John Crear, charged with an assault on an aboriginal black woman, which terminated in death. The prisoners were accordingly indicted for manslaughter.

The Attorney General observed, that this was not a case which affected the lives of the prisoners, as there were certain transactions which prevented a capital charge being preferred. There were circumstances of danger which led to the present trial, but nothing, in his opinion, that could justify the measures that had been adopted. Many accounts of the barbarities perpetrated by the black natives had been circulated, and there had also been lives and property destroyed; which, in extreme cases, there could be no question should be defended at the risk of the lives of the assailants. The Attorney General further remarked, that no difference existed between individuals, whether black or white, but that the same laws, now in force, equally extended to each; and, although it was necessarily admitted that danger had no small influence upon the minds of the prisoners, nevertheless it was to be proved, that the steps resorted to were unjustifiably rigorous. Witnesses were then called in support of the prosecution.

Mr. William Lane, overseer to Mrs. Hassall, at O'Connel-plains, in the Bathurst country, deposed, that a party of the natives visited that neighbourhood about the latter end of May last; shortly prior to which 7 white men had been killed by them, in the vicinity of Mudjee. This occurrence had spread terror and alarm through the country. That a tribe of the natives also visited Brisbane Valley, a station belonging to Mr. James Hassall, distant 15 miles from O'Connel-plains. Here they plundered the stockmen of all their comforts and provisions. On the 31st of May, one of the men under his controul, named John Hollingshead, came home wounded in two places; one spear having passed through the left arm, just below the elbow, and another fractured the thumb bone. This man reported to Mr. Lane, that he had been pursued within one mile of the farm. The consternation among the men on the estate increased. Application was made by the prisoners at the bar, in conjunction with one Alexander Grant, to be allowed arms, that they might go in pursuit of the natives, else they would all be murdered. The witness, considering his family and people were in imminent danger, supplied the prisoners with horses and arms: four had muskets, and the fifth (Castles) could only obtain a sword. The wounded man (Hollingshead) having been pursued in the S.E. direction, which was close to the main road leading from O'Connel-plains, the prisoners went off in that route. In the evening the party returned, reporting the fruitlessness of the expedition, as they had not fallen in with any of the natives. After this, Clark and Castles admitted they had seen a party; in which they were borne out by the declaration of Alexander Grant, in presence of the prisoners. The latter remarked to the witness, that the blacks had their spears prepared to throw at him; that he called to the five prisoners, who were rather behind, to advance; that a volley was discharged in their midst; and that some of them dropped, but whether males or females then they did not know. It was afterwards ascertained, by the story of Grant, that one was an old woman, but of the age or sex of the others they pleaded ignorance. The party, which had been so fired at, contained about thirty in number, and fle[d] into the mountains. The prisoner Castles admitted, that as he passed, he gave the old woman a prick with his sword. Mr. Lane said, that he saw no dead natives, but that he was acquainted with some few of them by name, and that one was called Joe.

In reply to the cross-examination of Mr. Rowe, the Solicitor for the prisoners, Mr. Lane added, that about 50 armed natives had been at his place sometime previous to the late unhappy occurrence; at which period two of these sable marauders were suffering imprisonment at Bathurst for outrages that had been perpetrated. Their appearance manifested symptoms of hostility, though they conducted themselves quite peaceably, as all their wants were then supplied. It was generally reported, that seven white men had been killed, which was a fact well known to one of the prisoners at the bar (Nicholson), as he had been at Bathurst, and actually seen the bodies in a cart. The whole of the country, Mr. Lane stated, was in great agitation from the violence of the natives; some of whom, he has been informed, had fire-arms in their possession. He allowed the prisoners to go out in quest of the natives merely from motives of apprehension.

Henry Trickey, a crown servant [3] in the employ of Captain Raine, deposed, that he lives on his master's estate at the two mile creek, distant five miles from O'Connel-plains, and eighteen from Bathurst; that he is acquainted with Sidmouth Valley. He was going, about five weeks since, on a Tuesday, with his mess to grind; when between Sidmouth Valley and the two-mile creek, a trifling distance from the main road to Bathurst, his attention was arrested by a large quantity of crows, eagle hawks, and other birds of prey; he proceeded to the spot, and was surprised to find the bodies of three black women. The ground upon which those bodies were, is called the Government reserve. He returned to his hut for a spade, and interred the bodies, which were in a state of putrefaction. He did not particularly examine them, only one was an old woman, and the others were apparently girls. He was at work the day before within half-a-mile of the spot, but heard the discharge of no musketry. The day subsequent he saw the prisoners, but had no conversation upon the subject. This witness also stated, that the country was in considerable alarm from the atrocities committed by the natives.

Mr. Stephen Geary Wilks, acting surgeon at Bathurst, examined the bodies of three aboriginal women. Upon one of the bodies he discovered a wound, which had penetrated the cavity of the abdomen; in examining the second, there appeared a hole upon the bone of the skull; and the third exhibited nothing extraordinary. The wounds were sufficient to cause death[.] That, inflicted upon the skull, was of such force as to leave no doubt of its being occasioned by a gun-shot. He knows of 13 men that have been killed by the natives, two of whom have undergone the operation of scalping, which was supposed to have been done while the poor men were yet alive; but to this he could not speak positively.

Mr. William Webb Shannon, resides at Raineville, near Bathurst. At the direction of the Commandant, on the 19th of June, he was present at the medical enquiry upon the bodies of the black women. They had been interred within half-a-mile of his residence, on the left side of the road from Sydney. He could not venture an opinion as to the cause of the wounds.

John Hollingshead is in the employ of Mrs. Hassall, under the superintendence of Mr. Lane. He deposed, that while searching for horses, on the 31st of May last, he fell in with a tribe of black natives, about 30 in number, upon the summit of a hill. There were in ambush; and, as he was aware of disturbances that had only recently occurred, he took to flight. The spears came flying after him in showers; he was twice wounded, as already described, but kept running, as the natives were in close pursuit with the tomahawk, till he came within a mile of home; when the chace was relinquished. He further added, that it came within his knowledge, that many atrocities had been committed upon the white men prior to this occurrence, some of whom had been burnt to death in their huts.

Alexander Grant is in the same employ with the last witness. He deposed, that he went out in the morning after some cattle, and that proceeding about a mile on his way, he beheld one of the sable hordes; he called to them, but no reply was made; he named one of them; but as he was riding, and attended by several dogs, he passed unmolested. When he returned about 12 o'clock, he found the last witness in a bleeding state, from the effect of the wounds caused by the spears. The prisoners at the bar were equipped for an expedition after the natives, and as he had so lately seen a party, he was requested by the overseer (Mr. Lane) to accompany them. In scouring the woods, he became separated from the prisoners at the bar, and went to ascertain the safety of the flocks, and the stock-keepers. At a place called the 8-mile swamp, 7 miles from the main road, he espied the same tribe he had seen in the morning. He called to Joe, one of the chiefs, and he replied in an abusive and insolent way. He then named Simon, and being answered with a shower of spears, he was compelled to retreat in quest of his companions, the prisoners at the bar, who were 3 miles away. The little force then went in pursuit to the 8-mile swamp, but the natives had flown into the mountains. The stations of the shepherds were found safe, and the party returned home. He said he could not tell whether the prisoners had discharged their guns during the separation. Prior to this day, he had seen the bodies of 5 white men taken into Bathurst in a cart.

Peter Murphy is also in the above employ at O'Connel-plains. He saw Hollingshead subsequent to being wounded; at the time it happened he was absent with the team. He heard the prisoner Castles say, in the evening, that they had been out after the natives, but had seen none. On the following day, the 1st of June, by the orders of Mr. Lane, the party renewed the pursuit, but returned without encountering any of them.

James Carter, a shepherd to Mr. Arkell, deposed, that his station is about 28 miles from Bathurst, and 14 from O'Connel-lpains; [sic] and that about the latter end of May the natives took from him 490 sheep; but that the greater part had been recovered. Here the prosecution closed.

Mr. Rowe respectfully suggested to the Court, on behalf of his clients, that he did not see there was any necessity for the prisoners to enter into a defence, as the charge laid in the information did not appear to be borne out by the evidence that had been adduced. The learned Gentleman also contended, that the prisoners were entitled to the benefit of two points of law which suggested themselves in the case; viz. 1. - That the indictment charged the prisoners with having committed an offence within the County of Cumberland, whereas the spot, on which these poor native women met with death, was in the County of Westmoreland; and, 2. - That the prisoners were warranted in the adoption of the steps that had been taken, having acted under the direction of a Proclamation, bearing date the 4th of May, 1816; one clause of which enacted "That from and after the 4th day of June next ensuing, that being the Birth-day of His Most Gracious Majesty King George the Third, no black native, or body of black natives, shall ever appear at or within one mile of any town, village, or farm, occupied by or belonging to any British subject, armed with any warlike or offensive weapon or weapons of any description, such as spears, clubs, or waddies, on pain of being deemed and considered in a state of aggression and hostility, and treated accordingly." In reply to the learned Solicitor, His Honor the Chief Justiceobserved that these were matters of evidence, and it was necessary that the prisoners should go into their defence.

Mr. Robert Howe called. - His father, the late Mr. George Howe, was the Editor and Government Printer in 1816; and he (the witness) succeeded to the situation in 1821. That it was usual for all Proclamations, and other Orders of the Government, to be published through the medium of the Gazette; and that such had been invariably the practice. That it was a standing Order, "that all Public Communications which may appear in the Sydney Gazette, signed with any Official Signature, are to be considered as Official Communications made to those Persons to whom they may relate." The Proclamation, bearing upon the present question, was published by the late Governor (General Macquarie). That it had been called forth in consequence of certain outrages and murders that had been committed by the natives, on this side the mountains, which was the habit of being repeated every maize season; that it was found expedient to send out military aid to the settlers, owing to which numbers of the natives had been killed; and that since the date of the Proclamation, the natives had been in a tranquil state, with the exception of those in the new-discovered Country (Bathurst). In his cross-examination by the learned Attorney General, Mr. Howe stated, that he had not heard of disturbances in the vicinity of Bathurst, till within the last 8 months; and the preamble of Governor Macquarie's Proclamation was read to the witness, reciting that the black natives of the Colony had, for three years before its promulgation, manifested a strong and sanguinary spirit of animosity and hostility towards the British inhabitants, &c.

[The Proclamation was now read to the Court by the Prothonotary, by consent; its not being legal evidence being waved [sic]].

The Rev. Thomas Hassall was next called. - This gentleman also stated that the Proclamation had been issued by the late Government, owing to the destructive and cruel ravages of the natives; and it was true that several natives had been killed in the new country. The country over the mountains is designated "Westmoreland." For general humanity and kindness, Mr. Hassall gave the prisoners a most excellent character, and was quite lavish in his encomiums on John Johnston, whom, together with the prisoner Clark, he had known from a state of childhood.

On being cross-examined, Mr. Hassall stated that he knew nothing of the consequences of the Proclamation of 1816 of his own knowledge; and the concluding paragraph of the Proclamation of 1816 was read to Mr. Hassall by the Attorney General; viz. "And finally, His Excellency the Governor hereby orders and directs, that on occasions of any natives coming armed, or in a hostile manner without arms, or in unarmed parties exceeding six in number, to any farm belonging to, or occupied by, British subjects in the interior, such natives are first to be desired in a civil manner to depart from the said farm; and if they persist in remaining thereon, or attempt to plunder, rob, or commit any kind of depredation, they are then to be driven away by force of arms by the settlers themselves; and in case they are not able to do so, they are to apply to a Magistrate for aid from the nearest military station; and the troops stationed there, are hereby commanded to render their assistance when so required. The troops are also to afford aid at the towns of Sydney, Parramatta, and Windsor respectively, when called on by the Magistrates or Police Officers at those stations."

Mr. Hassall, on being asked, stated as to the clause - "they are then to be driven away by force of arms," - that his impression was, that the settlers might kill the natives, although they themselves were not attacked.

William Cox, Esq. J.P. deposed, that he remembers the Proclamation referred to perfectly well; and that it emanated from the Government on account of the murders that had been committed upon the settlers, and their families, which happened about the maize season. In his situation as Magistrate, a military guard had been placed at his disposal. Parties went out in 1816 with the Magistrate at their head; and they always came to a Magistrate, except the soldiers under Captain Shaw, who received their instructions from Government; and the settlers did never attack the black natives alone without a Magistrate. There have been no depredations, by the natives, on this side the mountains, since the promulgation of that Regulation in 1816; but that outrages have been occurring, since that period, in the County of "Westmoreland;" and the late hapless scenes had taken place 70 miles from the County of Cumberland. Mr. Cox added, that the natives have been more troublous, within the last eight months, than at any former period. He then enumerated the various acts of cruelty and depredation that had been committed, within his recollection. Mr. Cox thinks the natives may now be called at war with the Europeans; and that, in his opinion, resistance is justifiable. Well acquainted with the prisoner Johnston, who received an additional proof of humane and unblemished character. It never was usual to fire upon the natives, unless in such emergencies as called for the interposition of the Executive, and times like the present.

Mr. Richard Lewis, a resident of Bathurst, deposed, that he left home about 14 days since. His estate is 20 miles from Raineville, and is called the Mill-post[.] He had one man killed by the natives. One of his neighbours, a Mr. Tyndall, had 3 men slain, two of whom were burnt to death in their hut. Within 8 years 19 Europeans had been killed by the natives, and 7 of that number had met with a premature destiny from this cruel source, within as many months.

The learned Attorney General addressed the Court, upon the conclusion of the defence, observing that the case stood simply as to the particular fact which occupied its attention; and that, therefore, no reference could be had to the Proclamation that was exhibited. The learned Gentleman pressed upon the recollection of His Honor and the Jury, that violences had been mutual; and that reasonable men might have sufficient cause of alarm; but the fact for the Jury to consider was, whether the woman, mentioned in the information, had met with her death at the hands of one or either of the prisoners, without the occasion having justified her being killed. It could not but appear strange, that 30 natives had so defended themselves, as to expose three women, and that the men should escape. If it could be credited that a conflict with men had taken place; and that this conflict had been produced by personal danger, and that the women had met with their death by the prisoners in that conflict, their happening to be women could undoubtedly constitute no difference as to the point of law; although women should be put to death in very extreme cases of danger indeed. But the argument was this:- women only being killed made it incredible that there was such a conflict, and such danger as to justify these parties. It was to be remarked that they were not charged with murder, and although there might be terror on the mind, still there was no necessity for killing those three women. The learned Attorney General then ended his observation, by saying, "If you believe Lane, who obviously is a most unwilling witness, you must come to the conclusion that the prisoners killed the women mentioned in the information, without being in danger sufficiently great to justify the act; and it is only to this point I would press the question."

His Honor the Chief Justice [4] was pleased to observe, that the case was quite a different one from that of murder, as it required that malice aforethought which constitutes the crime of murder. His Honor then went through the whole of the evidence throwing out all superfluous statements, giving the simple facts as pressed upon His Honor's mind, separating the degrees of evidence, and laying down the points of Law for the direction of the Jury.

In remarking upon the Proclamation that was produced to the Court, His Honor observed, with all the deference due to the Authority from whence such edicts issue, that no Proclamation could furnish any protection to individuals committing outrages upon the natives of the Colony. [5] The main defence seemed to be, that what the prisoners had done was restored to in self-defence. His Honor did not consider that they were justified in taking arms against the natives, it being known that cruel acts had been perpetrated by the natives; as one of the prisoners (Nicholson) had actually seen the bodies of several white men at Bathurst, and one of their own people (Hollingshead) had been speared. The circumstances were sufficient to warrant the act, as it would have been too late to seek for that protection and assistance which they might otherwise have obtained. But, looking upon the subjects that had fallen victims, it seemed strange that these poor women should only have been killed; and His Honor could not help feelingly to remark upon the wantonness of Castles, in the instance related of pricking the old woman with the sword! It would, however, be for the Jury to determine whether the prisoners had acted with sufficient authority, or otherwise. His Honor was not aware that the same particularities existed here as in the Mother Country, regarding the specification of counties, as it appeared, by the evidence, that the county mentioned in the information should have been Westmoreland instead of Cumberland. [6] But in case the Jury were of opinion that the prisoners were Guilty, the point of law would then be reserved.

After a short consultation, the Jury resumed their seats, and, through the Foreman, returned a Verdict of Not Guilty. [7]




[1] 6 August 1824. For preliminary proceedings, see R. v. Johnson, July 1824.

[2] Saxe Bannister.

[3] Convict assigned to work for a private master.

[4] In a confidential letter to Wilmot Horton, dated 10 July 1824, a month before the trial, Forbes C.J. talked of the conflict between Aborigines and whites in the "interior". He said that the extent of the clashes had been "infinitely exaggerated". "Hopes however are confidently entertained that upon communicating with them, peace will be restored; and the causes which led to the rupture removed - they are generally, an improvident destruction of Kangaroos and other wild animals upon lands occupied by the natives, and an abuse of their women." This letter was withdrawn, apparently, and replaced by another dated 14 August 1824, after the trial. In the later letter, Forbes C.J. made clear that he was referring to the Bathurst area. He referred to the trial's evidence that seven or eight people had been killed on either side, and said that Governor Brisbane's response had been appropriately mild. In this letter he did not, however, attribute blame for the clashes on the whites. (Letters in Catton Papers, Australian Joint Copying Project, Reel M791.)

[5] The correct legal position appears to be, that in the absence of a legislature before the reforms introduced by (1823) 4 Geo. IV c. 96, the Governors did have power to make general Proclamations and Orders which had the force of law. They could not do so, however, if the Proclamations or Orders were repugnant to the laws of England which were in force in the colony: see E. Campbell, "Prerogative Rule in New South Wales, 1788-1823"(1964) 50 Jnl of the Royal Australian Historical Society 161, at 180; R. Else-Mitchell, "The Foundation of New South Wales and the Inheritance of the Common Law" (1963) 49 Jnl of the Royal Australian Historical Society 1, at 5; V. Windeyer, Lectures on Legal History, 2nd ed., Law Book Co., Sydney, 1957, 306. Evatt thought the Governors could make law even when it was repugnant to that of England: H.V. Evatt, "The Legal Foundations of New South Wales" (1938) 11 ALJ 409, at 423; H.V. Evatt, Rum Rebellion: a Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps, Angus and Robertson, Sydney, 1938, 1975 reprint, 82-83. For discussion of nineteenth century views on the issue, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, 1996, 6-9.

[6] A similar defence was attempted in R. v. Charland, 1824.

[7] The most dramatic of the cases where whites were charged with the killing of Aborigines was the Myall Creek case of 1838, as to which, see R. Milliss, Waterloo Creek: the Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 1992. For the reverse, where an Aborigine was charged with killing a white, see R. v. Foley, 1824. On frontier violence, see the works of H. Reynolds, particularly Frontier: Aborigines, Settlers and Land, Allen and Unwin, Sydney, 1987. On the legal status of Aborigines in the nineteenth century, see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 1; A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, chap. 18.

Published by the Division of Law, Macquarie University