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

R. v. Binge Mhulto (1828) Sel Cas (Dowling) 1; [1828] NSWSupC 82

Aboriginal defendant, murder, attempted murder, Lord Ellenborough's Act, Moreton Bay

Supreme Court of New South Wales

Dowling J., 19 September 1828

Source: Australian, 26 September 1828

CASE OF THE "NIGER."

  An aboriginal native of Moreton Bay, was placed in the dock on Friday, for the purpose of being tried on an indictment charging him with the wilful murder of a European.[1 ] Before the information being gone into or the prisoner called to plead, the learned Judge Mr. Dowling enquired whether or no the black was at all conversant with the English language, to which the Attorney-General[2 ] replied in the negative.

  Judge Dowling - Then how do you purpose Mr. Attorney-General to try this man.  The prisoner, according to the principles of the British Constitution, is entitled to be tried by a jury composed one half of his own countrymen.  But waving even this as a matter of consideration; by what means do you intend Mr. Attorney-General to convey to this man's mind whom you purpose to try for a capital felony, the nature and particulars of the charge?

  The Attorney-General - May it please your Honor.  I consider, that in the trial of this aboriginal native, it is not incumbent in me to provide either of the requisitions to which your Honor refers.  Constituted as this Colony is, in respect of the aboriginal population, it is, I apprehend, to be considered on terms of relationship and good feeling between this class of people and Europeans.  I hold that the aboriginals of this Colony are amenable to the British Laws for any acts they may be found guilty of, in the same proportion as Europeans, convicted of offences against them, might be punished by our Courts.  With respect to the formation of a Jury composed one-half of Europeans and the other half of aboriginals; this, in the present untutored and savage state of the natives, is next to impossibility to effect.  Hence, then, the absolute necessity of departing from the rule of law, which your Honor has adverted to, but which I admit is strictly in unison with the spirit of the British Constitution.  But in the present unlettered state of the black community, I apprehend your Honor will see the necessity of foregoing this rule in the instance before the Court.

  The Judge - The material question for the consideration of the Court is - does the prisoner stand in such a situation as that he may be made to understand what is passing to his prejudice on the trial?

  The Attorney-General - I believe your Honor he does not; and it may perhaps be necessary for me to explain to your Honor, why I have not taken the precaution of having persons in attendance who are conversant with the dialect of the Moreton Bay blacks, and who might have been used as interpreters on the occasion.  The reason was this.  Some months ago, a black native was tried for murder.  On that occasion, I obtained the attendance of Mr. Threlkeld, a gentleman connected with the Wesleyan Mission, who understood tolerably well the native language of the person then on trial.  I also procured the Chief, Boongaree, who was employed in Court to assist Mr. Threlkeld in interpreting and propounding questions to the black.  The latter however, for reasons best known to the man himself, refused to make answer to any of the questions put to him.  The black was convicted, and subsequently executed in the usual course of legal proceedings.[3 ]

  The Judge - Mr. Attorney-General, this man is a savage.  He stands before the Court in the same light as a dumb man - as void of all intellect.  You purpose examining witnesses in support of a charge, and that of capital felony, which affects his life.  The man knows nothing of what is being said against him.  He is incapable of making any defence.  Non constat.[4 ]  If this man were made sensible of the nature of the charge you are here prepared to prove against him, he might set up such a satisfactory defence as to prove that he had been placed in such a situation, as that the retaliation on his part, which affected a European's death, was justifiable in law.

The Attorney-General - I will just observe to your Honor, that the case as affects the prisoner, is one so clear and satisfactory in its character, as that it would be morally impossible, by any evidence which might be offered on the prisoner's side, to shake that testimony.  I can have no wish, your Honor, beyond the promotion of the end of public justice - but I must say that in the present instance public justice would be sacrificed, if the dry forms of law were to be rigidly adhered to, in instances where the aboriginals of the Colony are parties who have to appear before the Court.  Your Honor is not perhaps aware of the fact, that with the black natives here, they do not make it a practice to revenge any insult that may have been offered them, upon the actual aggressor, but that they do so upon the very first European they meet with.

The Judge - The public justice of the country cannot be in any way defeated by the delay of this trial.  The aboriginal inhabitants of the Colony are most certainly amenable to all the consequences of punishment which the English law affixes - but if these wretched people are to be held liable to punishment, the same as a European, surely those miserable outcasts are entitled to all the privileges and protection which the British law affords to its own immediate subjects.  Looking at this case, in any point of view, I am clearly of opinion, that if I were to try this savage, in his utterly defenceless situation, I should be at once departing from the spirit and letter of the British law.  As such I will not try this man.  Let him be remanded. -   the Attorney-General has it in his power to provide interpreters from the district the man came from (Moreton Bay), against the next Criminal Court Sessions. -  In India (continued his Honor), trials of this sort are of common occurrence.  Fixed interpreters are there named by the courts; and these are called upon whenever instances of quarrel or theft are committed between the Europeans and the black population of that country.

The Attorney-General said he would be prepared to proceed on the trial of the prisoner next Session; and the man, who appeared before the Court almost in a state of nature, having an old blanket merely wrapped round his persons, was then released from the dock, and ordered to be returned to gaol, with express instructions by the learned Judge to the Sheriff, that whilst there, the man should meet with humane treatment.[5 ]

State Records, NSW 28/10171 4/2005

Supreme Court

19 December 1828

Sir,

  I have the honor to inform you for the information of His Excellency, that there are Two Native Black men, (Binghi Multi and Willimore ) now confined in Gaol on charges of Murder. - On consultation with their Honors the Judges I have been advised, in consequence of the impracticability of enabling these men to take their Trials under all or any advantages of British Law or Justice, to forego the Prosecution and to recommend their being removed to some part of the Colony distant from their former abodes -

  The first man, named Binghi Multi, was sent down from Moreton Bay, and the other, Willimore from the neighbourhood of Port Stephens.

            I have the honor to be

            Sir,

            Your most obedient servant,

            Alex. M. Baxter

To the Hon.

The Colonial Secretary 

 

Notes

[1 ] See also Sydney Gazette, 22 September 1828.

Justice Dowling recorded this case as follows (Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461): [p. 338]

"[An aboriginal Black Native, who could neither speak or understand English was put to the Bar charged under Ld Ellenborough's act, with stabbing a white subject of the Crown, and there being no interpreter produced who could speak the language of the prisoner or make him understand the proceedings of the Court  Dowling J. refused to try him until a properly qualified interpreter was produced and ordered him to be remanded for that purpose.]

"Friday  19 September 1828

"Crown Case

"Rex v Binge Mhulto

"Case of an Aboriginal Native

"This person, an aboriginal Native who could not speak a word of English was put to the bar under Lord Ellenborough's act with stabbing with a spear a British Subject at Moreton Bay.

"The Attorney General informed me that he had no interpreter who understood the prisoners language and he knew of no person who could speak it, but he said on the authority of a case tried by the Chief Justice when the native was executed for murder he purposed proceeding to [p. 338 sic] try this person.

"I said I could not try this man any otherwise than by the English Law, and as the prisoner must be made acquainted some how or other with the proceedings against him I could not try him until an interpreter was properly instructed to communicate and interpret the proceedings to the prisoner.  I likened this course of proceeding to the case where a person unacquainted with the nature of an oath, the trial was postponed until the witness was properly instructed.

"Attorney general adopted the suggestion and hearing that Captain Logan the committing Magistrate was in Town, he should make inquiry as to the practicability of procuring an interpreter."

Lord Ellenborough's Act (43 Geo. 3 c. 58) applied to specific kinds of attempted murder.  On its applicability in New South Wales, see R. v. Smith, 1825.

On 27 March 1828, Governor Darling sent Huskisson Archdeacon Scott's report on proposals to "civilize" the Aborigines.  Darling was sceptical about the plan, noting that those who learnt English at the school in Black Town returned to the woods as soon as their education was complete "though accustomed for some considerable time to the Comforts of a House, good food and Clothing".  The report, based on the work of Sadleir, recommended the acquisition of knowledge of the language of the native people, but Darling pointed out that it failed to notice the great multiplicity of Aboriginal languages.  (Historical Records of Australia, Series 1, Vol. 14, pp 54-64.)

Governor Darling reported other violence in the north in a despatch to Huskisson on 25 February 1828 (Historical Records of Australia, Series 1, Vol. 13, p. 793). A surgeon at Melville Island, near what is now Darwin, was reportedly murdered by natives in November 1827.  On 1 November 1828, the British government ordered the abandonment of the settlement there: Murray to Darling, 1 November 1828, Historical Records of Australia, Series 1, Vol. 14, pp 410-411; and see p. 521.

See also R. v. Brown, 1828 for another tragic inter-racial conflict in 1828.

For a case in which Aborigines were discharged without trial, see Australian, 5 April 1842 (Bathurst Circuit Court, Stephen J.): "Two blacks were placed at the bar for murder, but the interpreter not being able to understand what they said, his Honor refused to try them."

[2 ] A.M. Baxter.

[3 ] This apparently refers to R. v. Tommy, 1827.

[4 ] It does not follow.

[5 ] On 12 November 1828, the Sydney Gazette noted that there were two Aborigines in gaol at that time, one for murder, presumably Binge Mhulto, and the other as accessory to a murder allegedly committed by a convict at Moreton Bay.

It appears that Binge Mhulto was never tried.  He does not appear on a contemporary list of Aborigines tried between 1824 and 1836, though the list may not be complete.  See SRNSW,5/1161, Miscellaneous Correspondence Relating to Aborigines, pp 271-273.

[6] This letter is annotated 'Approved' in the margin. That is followed by what appears to be "Finch at Sutton House informed 29 Decr 1828 - Sheriff to deliver the Blacks [to] the P.S. of Police 29 Decr/28. Atty Gnl. informed". A photograph of the original document is also online in two parts: part 1part 2. We thank Kris Harman for her generosity in supplying this particular document and transcribing it for us.

Published by the Division of Law, Macquarie University