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

R. v. Ballard or Barrett [1829] NSWSupC 26; sub nom. R. v. Dirty Dick (1828) NSW Sel Cas (Dowling) 2

Aboriginal defendant, offence against another Aborigine - Aboriginal land rights - Aboriginal law, recognition of - Aborigines, killing of - Aborigines, legal status

Supreme Court of New South Wales

Forbes C.J., 21 April 1829

Source: Sydney Gazette, 23 April 1829

 

In the Supreme Court, on Tuesday last, the Attorney General applied to His Honor the Chief Justice, for his opinion on a subject involving a question of national law, with respect to the Aboriginal natives of the Colony.  It may be in the recollection of our readers, that a black native, known about Sydney by the soubriquet of "Dirty Dick," was murdered sometime since, near the heaving-down place, under the Domain, by some natives, of another tribe.  The murderer was discovered, and committed to gaol, to take his trial, where he has remained for some time past, and the question as to his amenability to the English law, for the crime with which he is charged, was the subject of the Crown prosecutor's application to the Court.  The Chief Justice observed, that, sitting alone, he should not like to prouounce [sic] any opinion upon a matter of so much importance; and, indeed, it would be much more adviseable that an opinion should not be rendered necessary.  He would state, however, that he could easily imagine cases in which the Aboriginal natives would clearly come within the provisions of the municipal law, and in which he did not consider that they would.   If, for instance, a dispute arose amongst a tribe, and that they dedided [sic] it according to their own customs, and what was, in fact the ancient law of England - namely, by battle, and that one or more of the combatants were slain, such a case would, clearly not be cognizable by our law.  If, on the other hand, a native, living in the town, and who, by such residence, had placed himself within the protection of the municipal law, was attacked and slain by any other native, then he conceived the native by whom he was slain would be rendered amenable to our law.  These remarks, however His Honor stated, were only made in passing, and upon mere general principles.  Should the case require to be raised in a formal manner for the consideration of the Court, he would have an opportunity of conferring with, and taking the opinion of the other Judges on so novel and so important an enquiry.  The Attorney General stated that he would make further investigation into the circumstances under which the death in the present instance took place, and be guided in such a course of proceedidg [sic] as he should think necessary to be adopted, by the opinion which had been expressed by the Court.

 

Forbes C.J. and Dowling J., 13 June 1829

Source: Dowling, Proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205

[p. 98]

Saturday 13th June 1829.[1 ]

Present

Forbes C.J.

Dowling J.

 & Stephen J. was ill

[The King v Dirty Dick an aboriginal native][2 ]

An aboriginal native of this territory called Dirty Dick had been committed for trial by the Sydney magistrates for the wilful murder of another aboriginal native called Robert Barrett, who [p. 99] was killed in an affray between two tribes of his countrymen, under circumstances of great cruelty.  The prisoner Dirty Dick was now put to the bar, and

The Attorney General prayed the direction of the Court, whether by the law of England he could be prosecuted for the alleged murder of one of his own countrymen; both having been in a savage state at the time of the transaction in question.  In his own judgment he was disposed to consent to the discharge of the prisoner from the difficulty of coming accurately at the merits of the case; but he would submit to the direction of the court as to the course to be pursued.

Forbes C.J.  Certainly this is a case sui generis, and the Court must deal with it upon general principles, in the absence of any fixed known rule upon the subject.  According to the view which the Court takes of the case, the Court is of opinion that the prisoner ought to be discharged for want of jurisdiction.  The facts [p. 100] of the case, are, as represented to us, simply these: - The prisoner is accused of the murder of one of his own tribe - one of the original natives of this Country, in the same state as himself - wandering about the country, and living in the uncontrolled freedom of nature.  In some way or other he has caused the death of another wild savage.  The precise circumstances under which the act has been committed, have not been brought before the Court; nor indeed was it necessary that the Court should look into these circumstances.  The Court knows no further than what has been stated, namely that the deceased came by his death in consequence of some difference that arose between him and the prisoner.  I believe it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves.  This I look to as matter of history, for I believe no inst[p. 101]ance is to be found on record in which the acts of conduct of the aborigines amongst themselves have been submitted to the consideration of our Courts of Justice.  It has been the policy of the Judges, & I assume of the Government, in like manner with other Colonies, not to enter into or interfere with any cause of dispute or quarrel between the aboriginal natives.  In all transactions between the British Settlers & the natives, the laws of the mother country have been carried into execution.  Aggressions by British subjects, upon the natives, as well as those committed by the latter upon the former, have been punished by the laws of England where the execution of those laws have been found practicable.  This has been found expedient for the mutual protection of both sorts of people; but I am not aware that British laws have been applied to the aboriginal natives in transactions solely between themselves, whether of contract, tort, or crime.  Indeed it appears to me that it is a wise principle to abstain in this Colony, [p. 102] as has been done in the North American British Colonies, with the institutions of the natives which, upon experience will be found to rest upon principles of natural justice.  There is one most important distinction between the savage & civilized state of man, namely that amongst savages there are no magistrates.  The savages decide their differences upon a principle of retaliation.  They give up no natural rights.  This is not merely matter of theory but practice.  In the civilized state, man gives up certain natural rights, in exchange for the advantage of social security, & other benefit arising from the institutions of civilized life.  It may be a question admitting of doubt, whether any advantages could be gained, without previous preparation, by ingrafting the institutions of our country, upon the natural system which savages have adopted for their own government.  It is known as matter of experience [p. 103] that the savages of this part of the globe, have a mode of dressing wrongs committed amongst themselves, which is perfectly agreeable to their own natures & dispositions, and is productive, amongst themselves, of as much good, as any novel or strange institution which might be imparted to them.  In the absence of a magistracy which is an institution peculiar to an advanced state of refinement, the savage is governed by the laws of his tribe - & with these he is content.  In point of practice, how could the laws of England be applied to this state of society?  By the law of England the party accused is entitled to his full defence.  Then how could this beneficent principle be acted upon, where the parties are wholly unacquainted with our language, laws & customs?  I am not prepared to say, that the mode of administering justice or repairing a wrong amongst a wild savage people, is not best left to themselves.  If their institutions, however barbarous or abhorrent [p. 104] from our notions of religion and civilization, become matured into a system and produced all the effects upon their intercourse, that a less objectionable course of proceeding (in our judgment) could produce, then I know not upon what principle of municipal jurisdiction it would be right to interfere with them.  The most important object of all human associations is to procure protection & security from internal as well as external aggression.  This principle will be found to influence the associations of some of the wildest savage tribes.  They make laws for themselves, which are preserved inviolate, & are rigidly acted upon.  However, shocking some of their institutions may be to our notions of humanity & justice, yet I am at loss to know how, or upon what principle this court could take cognizance of offences committed by a barbarous people amongst themselves.  They cannot be supposed to be acquainted [p. 105] with our laws, & nature prompts them to disdain the interposition of a race of people whom they find fixed in a country to which they did not originally belong.  There is reason & good sense in the principle that in all transactions between the natives & British subjects, the laws of the latter shall prevail, because they afford equal protection to all men whether actually or by fiction of law brought within their cognizance.  But I know no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves.  If part of our system is to be introduced amongst them, why not the whole?  Where will you draw the line: the intervention of our courts of justice, even if practicable, must lead to other interferences, as incompatible as impolitic, in the affairs of [p. 106] harmless inoffensive savages. - With these general observations, I am of opinion that this man is not amenable to English law for the act he is supposed to have committed.

Stephen J was absent.

Dowling J.  This point comes upon me entirely by surprize, & therefore I have had no opportunity of considering it in a manner satisfactory to my own mind.  It appears to me however that the observations which have fallen from his Honor the Chief Justice, are most consentaneous with reason & principle.  Until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us [p. 107] in interfering with their institutions even if such an interference were practicable.  It is an undoubted principle that a Colony of Englishmen settled in a new found country shall be governed by the laws of the parent state so far as those laws are applicable to the condition of the Colony.  This principle is carried a step farther, where the new found country is inhabited by aborigines.  If the inhabitants hold intercourse with the new settlers then the laws of the settlers shall be appealed to in case of dispute injury or aggression, arising from the one side or the other.  This rule is founded upon principles of equal justice, inasmuch as the law of England will not endure wrong or injury.  The savage, or the foreigner is equally entitled to protection from British law, if by circumstances that law can be administered between Britons & the savage or foreigner.  Amongst civilized nations this is the univer[p. 108]sal principle, that the lex loci, shall determine the disputes arising between the native & the foreigner.  But all analogy fails when it is attempted to enforce the laws of a foreign country amongst a race of people, who owe no fealty to us, and over whom we have no natural claim of acknowledgment or supremacy.  We have a right to subject them to our laws if they injure us, but I know of no right possessed by us, of interfering where their disputes or acts, are confined to themselves, and affect them only.  Most undoubtedly it is murder in an Englishman to kill an aboriginal native without excuse or reason.  So the law of England would hold the native amenable for destroying an Englishman, where the injury was unprovoked.  The same principle of protection applied to the preservation of property, although the notions of property may be very imperfect in the native. [p. 109]  The Englishman has no right wantonly to deprive the savage of any property he possesses or assumes a dominion over.  On the other hand the native would be responsible for aggressions on the property of the Englishman.  It is however, unnecessary to follow this principle any farther.  These are general observations suggested on the occasion, without meaning them to have the effect of judicial determination.  Cases have repeatedly arisen in this court where the first principle has been acted upon, both where an Englishman has murdered a native, and where a native has murdered an Englishman.  Beyond this, the doctrine has not been carried; & therefore, as it seems to me, it would be most unjust and unconscionable to hold the prisoner amenable to the law of England for an offence committed against one of his own tribe.

The prisoner was therefore Discharged.[3 ]

 

Source: Australian, 16 June 1829[4 ]

 

The aboriginal native known by the name of Bob Ballard, who has been kept in gaol ever since the murder of another native, "Borrondire," or "Dirty Dick," to which he is believed to have been a party, has been discharged from custody.  The principle which actuated the Judges in restoring this native to his liberty, deserves the warmest commendation.  They did not go upon the presumption of the native's innocence, but upon the injustice, the inconsistency, the absurdity of subjecting to the laws of civilized society, a savage, who, it was possible, might in his own estimation, and in the estimation of his countrymen, have been but conforming to some act of duty to his tribe, in imbruing his hands in the blood of his enemy.

At all events it would be contrary to the principle of natural international justice, to meddle in the quarrels of the aborigines, so long as they be confined to themselves.  It would be far more prudent, as well as more equitable, to leave the aborigines to adjudicate their disputes according to their own settled customs.  This certainly was the most liberal, enlightened, and proper conclusion, in such a case, that could b[e] arrived at.

 

Source: Sydney Gazette, 16 June 1829

 

The Attorney General here intimated his desire to have an Aboriginal native, named Robert Barnett, for some time in custody on a charge of killing another native, brought up in order to his being discharged.

The Chief Justice -  It being understood that this man is to be discharged from custody, I would just make a few observations on his case, and indeed on all cases of a similar nature, which may occur.  It is within the knowledge of this Court, that an oboriginal [sic] native, called Robert Barret, has been for some time confined in gaol, on a charge of murder committed, as alleged, upon another native, in an affray between two tribes, or in a dispute amongst several parties of the same tribe.  It never has been the practice in this Colony to interfere in the quarrels of the aboriginal natives; and as far as history goes, it has not been the policy of the Governments of other colonies to interfere with the savage tribes, whose countries we have taken possession of.  In occupying a foreign country, the laws that are imported have reference only to the subjects of the parent state; I am not aware that those laws were ever applied to transactions taking place between the original natives themselves.  This is founded on a wise principle.  The savage and the social state are widely different.  In the former there is no magistrate, the want of which, indeed, forms the most important distinction between them.  It is not a matter of mere theory, that every individual in the social state gives up a part of his natural rights in return for the protection, which society affords him --- it is a fact.  In the social state every individual sustaining an injury has the benefit of the collected wisdom of society to afford him redress.  But it is not so among savages; and I am not prepared to say but that, in such a state, the passions become the ministers of justice.  They have no magistrate to resort to, and therefore act upon the original principle of self redress; and, indeed I am not aware but that amongst themselves the greatest injustice would arise, if that brute force to which they have recource were to be restrained by the laws by which civilized society is bound.  Besides, if we interfere in cases of acts of oppression on the persons of the aboriginal natives, committed amongst themselves, we must also interefere in question of property, which very often give rise to those disputes, and thus have to administer justice in all their matters.  For these reasons, I do not think it just to apply our laws in cases arrising solely between the natives themselves, and am of opinion that this man should be discharged from custody.

Mr. Justice Dowling, coincided in the view taken of the subject by the Chief Justice, and the native was ordered to be liberated, with a recommendation that, not as a punishment, but as a matter of prudence, and for protection, he should be sent to some other part of the country.

 

Notes

[1 ] Dowling gave a short summary of this decision in his Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462.  The full text of the short version is:

"[p. 198]

[An Aboriginal Native of N.S.W. is not amenable to the British laws for an offence committed against one of his own countrymen.]

June 13th 1829

Rex v Dirty Dick

Forbes CJ

Dowling J

An Aboriginal native of this Territory called Dirty Dick had been committed for trial by the Sydney Magistrates for the wilful murder of another aboriginal native called Robert Barrett, who was killed in an affray between two tribes of his countrymen, under circumstances of great cruelty the prisoner Dirty Dick was now put to the Bar, and

The Attorney General prayed the direction of the Court whether by the law of England he could be prosecuted for the alleged murder of one of his own Countrymen; both having been in a savage state at the time of the transaction in question.  In his own Judgment he was disposed to consent to [p. 199] the discharge the prisoner from the difficulty of coming accurately at the merits of the case; but he would submit to the directions of the Court as to the course to be pursued. Vide.Vol.21.p.99."

The latter reference is to the full version of this case, but wrongly states it as vol. 21, p. 99 rather than vol. 22, p. 98.

The Sydney Gazette, 6 June 1829, reported a similar clash between two groups of Aborigines at George's River, in which ten died.

The Sydney Gazette, 26 and 28 November 1829, reported that another Aborigine was committed for trial on 23 November 1829 on a charge of murder.  His name was Broger or Brogan.  The Archives Office of New South Wales has a file called Miscellaneous Correspondence Relating to Aborigines (5/1161), which contains a lits of all Aborigines tried before the Supreme Court between May 1824 until February session 1836 (pp 271-273).  Broger or Brogan was the first on the list after Tommy, who was tried and executed in 1827.  His alleged accessory, another Aborigine called George Murphy, was held in custody in Argyle, but escaped.  He was later found drowned: Australian, 4 September 1829; Sydney Gazette, 28 November 1829.  Broger was convicted and hanged, but the victim was a European: see R. v. Broger, 1830.

[2 ] As their trial reports show, both the Sydney Gazette and the Australian reported that Dirty Dick (or Borrondire) was the person killed.  According to the Australian, the defendant was called Ballard, and the Gazette called him Barnett on one occasion.  It appears that in his notebooks, Dowling J. incorrectly reversed the names of the people concerned.

This is reported as (1829) R v Dirty Dick N.S.W. Sel. Cas. (Dowling) 2 (TD Castle and B Kercher (eds), Dowling's Select Cases 1828 to 1844: Decisions of the Supreme Court of New South Wales (Francis Forbes Society, 2005) p 2).

This decision was cited by McPherson JA in Stevenson v Yasso [2006] QCA 40 at [85].

[3 ] Eventually, a decision was take to send him to Port Macquarie: Sydney Gazette, 5 July 1829.

Ballard's case was in the newspapers again in 1830.  The Sydney Gazette, 11 May 1830, reported as follows: "The chief of the tribe about to proceed to Van Diemen's Land, to aid the police in discovering the retreats of the hostile natives is Bob Barrett, who was in prison some time since on a charge of murder, committed in melĂ©, on an aboriginal native called Dirty Dick.  Our Readers, we have no doubt, well remember this case, and the luminous decision of the Supreme Court, delivered by the Chief Justice, with respect to the liability of the natives to British laws for the result of quarrels among themselves.  Those who had the good fortune to hear it will not easily forget that masterly appeal to the reason, illustrated by the principles of international law, which Mr. Forbes delivered on that occasion."

[4 ] This is such an important case that the Gazette and Australian versions of the judgments are included here, as well as the most complete, and presumably most accurate versions, those in Dowling's notebooks.

 

 

Published by the Division of Law, Macquarie University