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

R v Ridgway, Chip, Colthurst and Stanly [1826] NSWSupC 62

murder - Port Stephens - Aborigines, killing of - capital punishment, at place of crime - Crown mercy

Supreme Court of New South Wales

Forbes C.J.,[1 ] 20 September 1826[2 ]

Source: Sydney Gazette, 23 September 1826

 

John Ridgway, Samuel Chip, Edward Colthurst, and one Stanly,[3 ]not before the Court, were indicted for the wilful murder of an aboriginal native youth, called Tommy, at Miau River, near Port Stephens, on the 8th day of May last.

The following are the circumstances detailed in evidence: - It appeared that at a station near Port Stephens, where a person named Pennington acted as overseer to Mr. Lord, there were three huts - one occupied by Pennington, one used as a store, and the third at some short distance from the others, with a small creek between, was the dwelling of the three prisoners, a man named Stanly, who has since absconded, and another man.  A day or two before the 8th of May, the deceased boy had been about the place, and on the 8th was in Pennington's hut, when some of the prisoners were sent in search of some strayed cattle.  They returned about 12 o'clock the same day, stating that they had not been able to find them, and, as they were crossing the creek on the way to their own hut, Mr. Pennington, who was confined with a bad leg, heard one of them say, "let us drown the little b-g-r."  The deceased was in Pennington's hut at the time.  Shortly after the prisoner Colthurst came in, telling the deceased that "white man wanted to give him something to eat," took him away to the prisoners' hut, and when he came there Stanly went out, and returned with some wet curryjong, which was described by the witness to be a bark used instead of rope for various purposes, asking Chip if that would do?  Chip replied "yes," and soon after he and Stanly went on board the boat, to proceed, as they said, to the cedar raft, taking with them the deceased, and leaving Ridgway, and some others, on shore.  As the boat pushed off, Ridgway called out, "mind the young b-g-r does not jump over the bows," when some one of the party on board replied, "Oh! we'll take care of that."  The party who remained on shore then proceeded into the bush, as they said, to look for a kangaroo, taking the same direction as the boat, but refusing to allow one of the men, the same who gave evidence to this effect, to accompany them: after the lapse of about an hour the boat returned, but without the deceased, and nearly at the same time the other party also came back.  Mr. Pennington stated, that when the boat came back he distinctly heard, from the hut where he sat, Stanly say, "do not say any thing about it," and that he felt convinced the boy had been put an end to, but he was afraid to make any enquiries, from an apprehension that some plot would be laid for him if he did so.  It was also in evidence, that in two or three days after this occurrence, the native who had brought the boy to the station, came several times and made enquiries after him, and not receiving any satisfactory accounts, manifested extreme dissatisfaction and anger.  About nine days after, on the 17th of the month, a drowned body was seen floating in the river, and on a report being made to Mr. Pennington, he gave dirrections [sic] that it should be drawn ashore and buried, which was accordingly done.  The witness, who deposed to this fact, stated that he believed the body to be that of the deceased boy, Tommy, but that it was much disfigured from being eaten, as he thought by the crows.  Stanly, who was present when the body was brought on shore, observed, that "it looked very like himself," and that he supposed he had been crossing the river by a tree, had fallen in and been drowned; and on a subsequent occasion observed to another witness, that he did not think the blacks would come again about the place to be used as guides, on account of the boy being put aside.  The Chief Justice, in putting the case, depending as it did on circumstances, to the Jury, observed, it was hardly necessary for him to say that his Majesty's white subjects in this colony were as amenable to the laws, for violence committed on the persons of the natives as if it were perpetrated on any other of the inhabitants.

His Honor had seen some of the natives brought before the Court for outrages committed on the white people, and if, therefore, the blacks were liable to the penal consequences attendant on a breach of the laws towards the whites, certainly the whites were responsible for acts of violence towards them; and surely in no case more than murder.  The natural instinct that was in man, impelling him to the preservation of life, was of itself sufficient to shew that the law, as regarding murder, was not confined to persons or to places; it was not municipal, it was not local, it was the laws of nature and of God, and equally extended to all mankind.  His Honor then minutely recapitulated the evidence, remarking on its various points as they affected the prisoners, and the man Stanly, who, though not before the Court was equally prosecuted with them, and stated that as all were engaged in one common transaction, what one said or did, was to be taken as evidence against the whole.  The accounts given by the prisoners also at their examinations before the Magistrate, was evidently untrue.  They then stated that, on the day charged in the information, they had none of them seen the boy about the place, and that in direct contradiction of the positive testimony given by the witnesses, some of whom were of their own party.  His Honor did not wish to put the case to the Jury stronger against the prisoners than the circumstances required, but most certainly it impressed itself strongly upon his mind, throughout the whole of the case, that the boy had been made away with.  It was entirely for the consideration of the Jury, whether the facts detailed in evidence were strong enough to warrant their pronouncing the awful verdict of guilty; if they had any doubts they would give the prisoners the benefit of them; if not, they would discharge their conscience.  The Jury, after a short consultation, returned a verdict of Guilty.

His Honor then proceeded to pass the sentence of the law upon the prisoners.  He observed, that the Court had in vain looked for any thing like a motive which could have induced them to perpetrate the crime of which they had been convicted.  It was proper that, if the natives were to be kept in subjection, and to pay the dear penalty which they sometimes do for some small crime, that they should also be protected from outrage, and His Honor hoped that the example of the prisoners would show others that they could not destroy the natives with impunity.  They were ordered for execution of the 23d instant.[4 ]

 

 

Source: Sydney Gazette, 14 October 1826

 

Samuel Chip will be conveyed to Port Stephens, and there expiate the awful crime of murder at such time as the Executive Authority may think proper to appoint. [5 ]

We fervently trust, after this just but terrible example, people in this land will - 'Cease to do evil, and learn to do well."  The Governor has a painful but imperative duty to perform --- but he must not bear the rod of office in vain.  To spare such men would, indeed, be a waste of mercy.  Too long have these culprits abused clemency.  Oh, that the living --- the living --- may lay such things to heart, and profit by the awful spectacle that will take place.

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

[2 ] As it often did, the Sydney Gazette got this date wrong.  The trial was held on Wednesday, 12 September 1826: Forbes to Darling, 21 September 1826, Chief Justice's Letterbook (Archives Office of New South Wales, 4/6651, p. 77.

[3 ] Stanley was tried and found guilty on 3 March 1827: see R. v. Stanley, March 1827.  For other cases concerning the killing of other Aborigines in this period, see R. v. Lowe, May 1827; R. v. Jamieson, May 1827.

[4 ] The 23rd of September 1826 was a Saturday.  This indicates that this was not a normal murder case.  Most murder trials were heard on Fridays, and if found guilty, the prisoners were hanged on the following Monday, in accordance with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By usually holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.  By s. 4 of the Act, the judge was given power to stay the execution; for an example of that, see R. v. Fitzpatrick and Colville, June 1824.

A new policy was put into effect in 1826. The Monitor, 13 October 1826, reported that "In order to increase a more powerful example by the execution of criminals, it is in contemplation to make the actual scene of their respective crimes in future the place of punishment.  With this view it is supposed that the delay has taken place in allowing the law to take its course in the cases of nine unfortunate men who are now awaiting the awful mandate.  Port Stephen - Parramatta - Bathurst - and Burwood, will in that case, witness the operations of retributive justice."  This was of doubtful legality where the crime was murder, due to s. 1 of the murder Act.  It was not possible to reach Port Stephens so quickly.  See also R. v. Mustin and Brown, October 1826.

[5 ]In fact, only Colthurst was hanged, and that for piracy rather than murder.  On 21 September 1826, Forbes C.J. sent his trial notes of this case to the Governor, suggesting that it should be referred to the Executive Council before the sentence should be carried out, because of the "peculiarity of the case": Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 77.  (On the practice of Crown mercy, see also R. v. Butler, July 1826.)

The Executive Council discussed the case of the Port Stephens murderers on 21 and 23 September 1826 (Executive Council Minute Books, Archives Office of New South Wales, reel 2436l, pp 74ff).  Forbes C.J. introduced the case of Colthurst, Chip and Ridgway, saying "it was, however, attended with some circumstances of difficulty, and he recommended the examination, by the Council, of the principal witness on the Trial, Mr. Pennington, as likewise that Mr. Lord, to whom the prisoners were assigned Servants".  Pennington's letters showed that he believed that Tommy had been murdered by the prisoners, even before the body was found.

The Executive Council minutes for 23 September 1826 said, "After the most mature deliberation it appeared to the Council, that example has become so imperatively necessary from the circumstances of recent occurrence, that it was recommended in the case of Samuel Chipp, the Law should take its course, and in that of John Ridgway and Edward Colthurst, that they should be respited until the case should be further considered."  The minutes continued: "In carrying the Law into effect against Samuel Chipp, it was recommended that he should be executed at Port Stephen, and further, that a high reward be offered for the apprehension of Thomas Stanley"... The minutes continued "the Council likewise advised that the Governor should express in the strongest terms, its marked disapprobation of the wanton aggression which appear to the Council to have been heretofore made on the Native Black Inhabitants in the remote parts of the Colony."

On 8 October 1826, Governor Darling sent the cases of Ridgway and Colthurst to Earl Bathurst, with the recommendation that they should be reprieved but transported for life to Norfolk Island and put to hard labour in chains.  He made clear that the final decision rested with the King.  His despatch explained: "Samuel Chipp and Thomas Stanley are supposed to have been the Principals in this act.  The former has been entered for execution at the place, where the murder was committed.  Stanley, who absconded after the event, has been apprehended only within these few days, and is now awaiting his trial.  Ridgway and Colthurst, being considered less criminal, are therefore recommended to mercy."  (Source: Historical Records of Australia, Series 1, Vol. 12, p. 632; and McLeay to MacKaness, 25 November 1826, Copies of Letters to the Judicial Establishments, Archive Office Reel 624.)  The governors had discretion to exercise Crown mercy on behalf of all prisoners sentenced to death except those convicted of murder or treason.  In the latter cases, the final decision had to be made by the King on the advice of the British government: see Historical Records of Australia, Series 1, Vol. 12, pp 644-645; correspondence between governor and judges, 1828, Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 190ff.

After Stanley was captured and convicted, he and Chip were both condemned to die at Port Stephens.  On 30 March 1827, the gaol governor, Steel, was told that they were to be taken on the next day to the Lambton cutter, to be conveyed to Port Stephens.  However, later the same day, Governor Darling decided that the Lambton was too "crowded" to take them on that trip.  (Source: McLeay to Mr Steel, 30 March 1827; McLeay to Mackaness 30 March 1827, both in Copies of Letters to the Judicial Establishments, Archives Office of New South Wales, Reel 624.)

Eventually, both Chap and Stanley were reprieved as well, and sent to Norfolk Island to work in chains for life.  (Source: Sydney Gaol Entrance Book 1825-1828, Archives Office of New South Wales, Reel 851, 4/6430.)  Forbes became convinced that Governor Darling was autocratic.  Part of his evidence for that was " Shameful neglect of executing sentences - Port Stephens case ."  That is, he blamed Darling for the failure to execute Chip and Stanley, after the Executive Council had agreed that they should be hanged.  (Source, document apparently in Forbes' handwriting, in his personal papers, Mitchell Library, A 743.)

Colthurst was placed on a ship for transport to Norfolk Island, but he was one of the pirates who seized the vessel while at sea.  Found guilty of piracy on rather slim evidence, he was one of the few pirates chosen to be hanged.  The choice was made on the basis of the seriousness of his previous offence, that is murder.  In effect then, he did hang for the murder of the Aboriginal boy.  See R. v. Walton et al., February 1827. (For the first European to be hanged for the murder of an Aborigine, see R. v. Kirby and Thompson , 1820.)

Forbes C.J. wrote to his friend Horton about this on 15 May 1827 (Mitchell Library, Reel CY 760), knowing that Horton would have to consider the case of those convicted of the crime.  He said that the father of the murdered boy slew the first white man he came across "according to the rite of his countrymen, which demands blood for blood"; the man killed was called McDonna, and had had nothing to do with the murder of the boy.  Forbes also said that Chip was in a cell for seven months, awaiting execution, and that four times he was warned to be ready the next morning to be taken to his place of execution.  "Colthurst had been convicted of another capital felony, and on the scaffold acknowledged the murder - But it had now become too late to do justice by executing these murderers - the long confinement and torturing suspense of Chipp, had awakened a strong sympathy among the public - his sentence had been immeasurably increased by the delay of its execution - and about the latter end of last month, the governor brought the case of Chipp and Stanley before the Council, upon no other plea than the long interval since their execution had been awarded - I, for one, yielded to the merciful side - but a more cruel, unprovoked, and atrocious murder I never tried - I hope, however, that the sentence of these men will be commuted by His Majesty - the feelings of the public here would be wounded by seeing the law put into force after so long, an unnecessary, an interval of suspense - increased as it will now be by reference to England."

Published by the Division of Law, Macquarie University