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

R. v. Brown [1828] NSWSupC 10

Aborigines, killing of, Aborigine, kidnapping of, murder, manslaughter, Wellington

Supreme Court of New South Wales

Trial, 29 February 1828

Source: Sydney Gazette, 5 March 1828

George Brown, was indicted for the wilful murder of an aboriginal native female child, whose name was unknown, at Wellington Valley, or [sic] the 11th of December last.

The Attorney General[1 ] stated the case, and called the following witnesses.

Frederick Hambush deposed that, about 4 o'clock in the afternoon of the 11th of December last, he heard the report of a pistol in an adjoining hut, where the prisoner dwelt, and on going out, saw a little black girl, between 8 and 9 years old in the agonies of death, and the prisoner standing over her with a pistol in his hand; witness asked the prisoner what was the matter when he exclaimed "My God!  I have shot a child by accident;" he stated there were several of the native children about the door, asking for bread, that he told them to go away, which they would not do, and that he took down the pistol, which he did not know to be loaded, and presented it at them for the purpose of frightening them away, when his finger accidentally coming in contact with the trigger, it went off, and shot the child; there was one large hole in the back of the deceased's head, through which several slugs might have entered; life was extinct in a moment.

Cross-examined. -  Witness knows the prisoner for some time; he was always particularly kind to the black natives; about a quarter of an hour after this occurrence, the prisoner said that Broadhurst, the constable, from whom he had the pistol, told him it was not loaded; from what witness knows of the prisoner's character, and from his demeanor afterwards, he has, no doubt, that the occurrence was positively accidental.

Other witnesses spoke to the same facts, and the Jury, under the direction of the Court, found the prisoner guilty of manslaughter.  Remanded.

 

Forbes C.J., 1 March 1828

Source: Sydney Gazette, 5 March 1828

 

George Brown, convicted of manslaughter, for shooting an aboriginal native female child, being placed at the bar, the Chief Justice stated, that if it were only to set an example to shew that accidents produced by such incautious conduct as that of which the prisoner had been guilty, should not pass unpunished, and to teach others that the lives of the unfortunate natives were not to be sported with, the sentence of the Court was, that the prisoner be sent to an iron gang for two years.[2 ]

Notes

[1 ] A.M. Baxter.  See also R. v. Binge Mhulto, 1828, for details of another inter-racial conflict in 1828.

On 28 August 1828, Governor Darling also reported to Huskisson on "a very gross Outrage committed by a Party employed in Patrolling the Neighbourhood of the Settlement of Fort Wellington on the Northern Coast in the Month of December last."  (Fort Wellington was in what is now the Northern Territory, whereas Wellington Valley, the site of the killing of the Aboriginal child in Brown's case, was in western New South Wales: see evidence in R. v. Lookaye alias Edwards, 1828.  The similarity in place names is a coincidence.)  The commandant at Fort Wellington, hoping to reduce native attacks, decided to capture an Aborigine.  The aim was to prevent further attacks and operate later as a means of conciliation when the captive was released unharmed.  In attempting to do this, a patrol came across a large body of native people.  Frightened of their own weakness, they fired on the Aborigines and wounded four or five, including a woman and two children.  The woman and one of the children died.  The other wounded child, a girl of six or seven, was taken to the settlement.  They also "despatched", deliberately killed, another wounded Aborigine, to relieve him of his sufferings.  Darling referred the matter to the Executive Council, but it made no further suggestion.  The governor ordered that the men who committed these acts be sent to Sydney, but said that "it did not appear, much as the Event is to be deplored, that any benefit would result from the further prosecution of the matter".  Thus the killings continued on the frontier, relatively unhampered by the law.  (Source: Historical Records of Australia, Series 1, Vol. 14, pp 350-351.)

Murray replied to Darling about the Fort Wellington killings on 3 September 1829 (Historical Records of Australia, Series 1, Vol. 15, pp 153-154).  He said "I cannot too strongly express my reprobation of the behaviour of all the Persons concerned in this inexcusable transaction."  Soldiers and convicts, without an officer, being sent on the promise of a reward for the capture of an Aborigine, inevitably led to the deaths.  Captain Smith's conduct led to loss of life and harm to the damage of the British name.  Murray sent the file to military authorities for action against him.  Murray reluctantly agreed that the length of time since the events and the withdrawal of troops from the area meant that it was too late to act against the members of the party who committed the acts.  He warned that if anything similar happened in future, the British government would proceed with the utmost severity against those concerned, either as principal or accessory. 

Time and distance, it appears, made the British government feel powerless to do more than warn.  Once a decision had been made in the colony not to prosecute, the delay in getting British advice meant that the initial decision could not be overturned.  In this way, matters such as this were left in colonial hands.

A very similar event occurred in Newfoundland while Forbes was Chief Justice there.  A group of fishermen, frustrated by natives who were damaging their equipment, decided to seize a native with the same misguided notion of reconciliation through kidnapping.  They, too, killed one native and seized another.  Despite the governor's attempts, the seized woman was not returned to her family, and died in white custody.  (Source: Provincial Archives of Newfoundland, Letter Books of the Colonial Secretary's Office, Vol. 30, 1819, GN 2/1/30, pp 122-137, 156-164, 180-181, 201-209, 260-262, 299-308.)  As Chief Justice, Forbes did not try the kidnappers or killers, but merely set a Grand Jury inquiry in motion and took a leading role in a town meeting on native reconciliation.  Those responsible for the kidnapping and killing were held not to be criminally liable, and were not put on trial.

There was also another conflict in New South Wales in 1828, which the Colonial Secretary, McLeay, described as a massacre of natives at the Liverpool Plains by whites.  Singleton had opened a new run (a squatter's property) there, and the killings were said to be in self defence.  No legal action followed.  See the correspondence in Archives Office of New South Wales, Miscellaneous Correspondence Relating to Aborigines, 5/1161, pp 94-99.

[2 ] The Australian, 5 March 1828 reported this differently: "George Brown, for manslaughter, in shooting at a native female child, name undescribed, the prisoner having put in, justification of the act occurring in self defence - to be worked on the roads in chains for a term of two years."

Published by the Division of Law, Macquarie University