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

R v Boatman or Jackass and Bulleye (1832) NSW Sel Cas (Dowling) 6; [1832] NSWSupC 4

Aboriginal defendant - stealing, sheep - Aborigines, mens rea - Aborigines, legal status - Hunter River - Aborigines, annual conference

Supreme Court of New South Wales

Dowling J., 10 February 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[1 ]

 

[p. 125]

February 10 1832

Rex v Boatman or Jackass

The prisoner, an aboriginal Black native had been committed for trial by country magistrates charged with feloniously stealing a considerable number of sheep at Hunter's River the property of Mr Palmer.  The prisoner who was a naked savage was put to the Bar and the Solicitor General proposed to try him by the law of England but he informed the Court that the prisoner did not understand a word of English or at least so imperfectly as not to be fully [p. 126] aware of the nature of the proceeding.  The Judge (Dowling) under the circumstances stated said he could not put the prisoner on his trial.  The utmost he could do would be to put the trial off until an interpreter was properly instructed in the prisoners language so as to make him acquainted with the proceedings on the trial.  The Solicitor General said this was a hopeless task and not all probable that there could be an interpreter procured.  The Judge then said that he could not try the prisoner in any other way than that prescribed by the law of England.  The prisoner was remanded until the last day of the Session.

 

Dowling J., 23 February 1832

Source: Sydney Gazette, 25 February 1832[2 ]

 

Boatman, an aboriginal native, was indicted for stealing two sheep, the property of John Palmer, Esq. at Ennindale, in the district of Hunter's River, on the 19th of Sept. last.

After the prisoner had been arraigned, the Rev. Mr. Threlkeld, who came up from Newcastle for the purpose, was sworn as and interpreter.

The evidence having been gone through, which went to show that the prisoner was one of a party of natives who drove away several sheep from the prosecutor's station.

Mr. Therry, who, at the request of the learned Judge, undertook the prisoner's defence, objected to the jurisdiction of the Court, on the ground that the aboriginal natives of the colony were not subject to the British laws.

The learned Judge said, he would take a note of the objection for the consideration of the full Court, should it be necessary.

His Honour then summed up the evidence, and the Jury found a verdict of - Guilty. Remanded.

The learned Judge directed the gaoler, if the prisoners behaved quietly, not to keep him in irons.

Billy Bulli, an aboriginal native, was then placed at the bar, and indicted for stealing four sheep, the property of John Palmer, Esq.

The Rev. Mr. Threlkeld acted as interpreter.

In this case, also, Mr. Therry undertook the prisoner's defence.

Mr. Justice Dowling asked Mr. Therry if he renewed his objection to the jurisdiction of the Court in this case?

Mr. Therry said he did. It was, in his opinion, a most important question, whether the aboriginal natives were subject to our laws. He had considerable doubt upon the subject, and wished that it should undergo the most mature consideration.

Mr. Justice Dowling said, the regular course of proceeding was to plead to the jurisdiction. He admitted the subject to be one of deep importance to the colony; because, if there really were no law by which these people could be tried, a question would then arise, whether it would not be necessary to resort to the local legislature. With the consent of the Solicitor General, he would take a note of the objection, in the form in which it had been raised by Mr. Therry, and draw out a case to lay before the Judges, which might be argued on a future day.

The Solicitor General consented to assume that all the necessary preliminaries had been gone through, and allowed the question to come on for argument in the manner proposed by His Honor.

The trial then proceeded.

James Casey examined by the Solicitor General. - I am a shepherd in the service of Mr. John Palmer; on the 29th of August I was our with our sheep near the Sugar Loaf; four black fellows came about 10 o'clock in the morning, rushed among the sheep, and took about 30 away; they kept four, and the remainder found their way home again; next morning, I found the four skins at the blacks' camp, about 100 rods off; the blacks were not there; the prisoner was one of the men who took the sheep; I knew him by the name of Billy Bulli for about four months before; he was not above thirty yards from me when he took the sheep; he had a waddy, a womorang, and a spear in his hand; I hallooed to him to let the sheep alone; I have no doubt the prisoner was one of the men, as he had been at the station several times; the prisoner can speak a little English; he understood a great deal of what I said, and I of what he said.

Cross-examined by Mr. Therry - Billy Bulli is the name by which the prisoner was known among the blacks; he had a gin; she was never away from him that I know of; I do not know it to be a custom among the stock-keepers to take away the black-fellows' gins; I can undertake to swear positively to the prisoner as being one of the party; I do not know it to be the custom to give away the diseased sheep to the natives; if I saw half-a-dozen natives I would not be able to swear to them six days after, unless I knew them; I know of no marks on the prisoner's person, but I would undertake to swear to him among a thousand.

This was the case for the prosecution.

On the part of the prisoner, the Reverend Mr. Threlkeld was called, and examined by Mr. Therry.

I have some knowledge of the customs and language of the natives; I know frequent instances of their gins being taken from them by whites; in two instances I had to interfere, and to appear at the Police Office; I have had repeated complaints from the blacks of their women being taken away from them for improper purposes; I do not think they supposed they had a right to retaliate on that account; they have a notion respecting the rights of property; they do not take what belongs to each other, nor do they make use, to any great extent, of the opportunities they possess of taking the property of the whites; I think this arises from fear; they have no knowledge of the laws of England; they would readily be induced to steal a sheep for a trifling reward; I think one fig of tobacco would induce one of them to do it; their ignorance of the consequences of the offence would induce them to commit it.

By the Court - I have observed a remarkable shrewdness in the native tribes; they are shrewd, and discover, in their language strong reasoning faculties, capable of moral improvement - indeed more so than some of the lower order of Englishmen; they display a remarkable cunning when they wish to accomplish any object; they make a distinction between free settlers and what they call "croppies" - that is, prisoners; if they met a free man in the bush they would not hurt him, but if they met a prisoner they would probably strip him; the reason of this is, that when Newcastle was a penal settlement, the commandants used to give them the clothes of all the runaway prisoner they apprehended as a reward; I do think they know right from wrong; from that natural instinct implanted in the heart of every human being; I resided for 8 years in the South Sea islands, and I think that the natives of this colony are equally capable of moral improvement and civilization as the natives of those islands, who have made such rapid improvement through the exertions of the missionaries; the natives of many of the South Sea islands are nominal Christians; as far as my knowledge goes, there is no foundation for the opinion that prevails at home, that the natives of this colony are utterly incapable of improvement; I form that opinion from a comparison and contrast between them and the natives of other savage countries; they are exceedingly particular with regard to the rights of property amongst each other; they will not allow any thing, however trifling, to be taken by one from another; they lend to each other, and, although not over-particular in exacting the return of the thing lent, lending and giving away; they have distinct words for each in their language; they have also some idea of barter; the Newcastle tribes send up bundles of spears which they manufacture to tribes up the country, and receive, in return, a cord made of the skin of the wallobi.

John Palmer Esq., examined - I do not know it to be the custom to give away the diseased sheep to the natives, for food, but I know an instances wherein 120 diseased sheep were turned loose into the bush, about three miles from my station, by Mr. Sparke, who now keeps the Australian hotel in Sydney; the greater part of these sheep were taken away by the natives, and no enquiry made after them, and from this circumstance, I think it highly probable that they considered sheep of no value, and that they might take them wherever they might find them; I had never known the natives to steal sheep before the last eighteen months, during which period I lost upwards of 200 from my flocks.

The learned Judge summed up the evidence, and told the Jury, after the last testimony they had heard, if they believed that the unhappy man a the bar had really taken those sheep under an impression that they were of no value, they ought to give him the benefit of that view of the case and acquit him. The jury found a verdict of not guilty.

The Solicitor-General, then rose, and stated that, after the conclusion at which the jury had arrived in this case, and feeling satisfied, had the same evidence been presented to them in the former case, that their verdict would have been the same he did not feel warranted in calling for judgment of the Court on the man who had been convicted.

Mr. Justice Dowling, after complimenting the Solicitor-General on the manner in which he, at all times, discharged his official duties in that Court, said he perfectly coincided in the course pursued by the learned gentleman, as well as in the conclusion to which the jury had come in this case. His learned friend, Mr. Therry, who, at His Honor's request, had kindly undertaken the defence of the prisoners, could not have been supposed, having an unexpected duty suddenly cast upon him, to be prepared in such a manner as, if time for deliberation had been afforded him; or he was satisfied that the line of defence he had set up in the last case, would have at once suggested itself to his accute [sic] and intelligent mind.

The two natives were then placed at the bar and discharged by proclamation.

 

Dowling J., 23 February 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

 

[p. 138] [The Black aboriginal Natives of New South Wales are amenable to the laws of England for offences committed by them against the persons & property of British Subject and are triable by Jury as British subjects provided the [sic] be sufficient proof of their intelligence as reasonable beings knowing right from wrong, and there be sufficient means of interpreting the proceedings of the Court assembled to try them for the infraction of English law.]

 

Rex v Boatman & Bulleyes

 

The prisoner a Black Aboriginal native of the Colony, was charged with Sheep Stealing.

I asked Solicitor General (M Dowel) how he proposed to interpret proceedings to the prisoner

Mr Solicitor General said he was provided with Mr Threlked a Missionary and black native conversant with English and the prisoners language.

The jury found the prisoner Guilty.  Vide Vol 64. page 1.

 

Dowling J., 23 February 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 64, Archives Office of New South Wales, 2/3247[3 ]

 

[p. 11] Dowling J.  The first question for consideration is whether the aboriginal natives of this Colony are subject to the jurisdiction of this court by the law of England.  The general principle acted upon, I believe, with respect to these people since the foundation of this as a British Colony, is to regard them as being entirely under the protection of the law of England for offences committed against them by the white settlers & subjects of the Crown, & on the other hand to render them liable for any infraction of the British Law which may be injurious to the persons or properties of His Majesty's white subjects.  We interfere not with their own habits, customs or domestic regulations,[4 ] but leave them to adjust their own disputes & differences amongst themselves.  Dirty Dick's case.[5 ] Vol. 22 p. 98.  But before a person of this description can be tried in this court it must be made to appear that he understands what is passing & is sensible of the liability he incurs; for if he does not understand what is passing he must be regarded as a person deaf & dumb, or a lunatic.  In other words he must be a reasonable & responsible being.  Rex vBinge Mhulto[6 ] Vol. 9. P. 100; but if he be a reasonable being, & understand the nature of his present responsibility [p. 12] then, I hold, as at present advised, that he is liable to the Britis [sic] law.  His anomalous position as a savage native of a country which has become the territory of the British Crown, disentitles him[7 ] to the privileges of a foreigner, of being tried by a jury half English & half foreigners, even if the Act for the administration of justice in this country would authorize us in adopting a course of trial for which we have no machinery.  Where should we find the materials for such a jury?

The second question then is whether the prisoner comprehends what is passing.  This a matter to be determined by the evidence.

The 3d. whether he took the sheep with knowledge that he had no right to do so, intending to convert it to his own use.

The jury found the Prisoner Guilty.

 

Notes

[1 ] Since the time of Governor Macquarie (who arrived in the colony at the end of 1809), the governor had called an annual conference of the Aboriginal tribes: see Sydney Gazette, 4 January 1828; and see Sydney Gazette, 22 January, and 28 November 1829.  On the 1832 conference, see a letter in the Sydney Herald, 13 February 1832, claiming that the indigenes had intellects barely above that of dogs.  Not all lawyers agreed with this: see R. v. Ballard, 1829.

[2 ] The Sydney Herald, 27 February 1832, recorded these cases as follows:

"Boatman, a native black, was indicted for stealing nine sheep, the property of John Palmer, at Ennindale, on the 19th of September last.

"The Second Count charged the prisoner with killing the sheep with intent to steal the carcases.  The Reverend Mr. Threlkeld, acted as interpreter.  The prisoner was found Guilty.

"Billy Bulleye, another black native, was indicted for stealing four sheep, the property of John Palmer, at Ennindale, on the 19th September.  The second count charged him with killing the sheep with intent to steal the carcase.  The prisoner was acquitted on the ground that he was not aware he was committing a felonious act at the time.  The learned Judge then directed that his countryman, Boatman, should be discharged with him, and he requested of Mr. Threlkeld to explain to them that they were not to make free with the settler's sheep in future."

[3 ] This notebook record of the trial commences at p. 1, in poor handwriting.  Threlkeld acted as interpreter, and Therry for the defence.  Therry objected to the jurisdiction of the court, under the law of nature and of nations.  The judge's statement of the law reproduced here, is from pp 11-12 of this source.

[4 ] Deletion in original: ``amongst themselves,".

[5 ] This reference is to R. v. Ballard, 1829.

[6 ] This reference is to R. v. Binge Mhulto, 1828.

[7 ] Deletion in original: ``of".

Published by the Division of Law, Macquarie University