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

R v Finney [1833] NSWSupC 103

murder - Aborigines, killing of - jury, military - Liverpool Plains

Supreme Court of New South Wales

Burton J., 15 November 1833

Source: Sydney Gazette, 16 November 1833[1 ]

(Before Judge Burton and a Civil Jury.)[2 ]

James Finney was indicted for the wilful murder of a Black Native, called Black Jemmy, on the 21st of June last; the first count charged the prisoner with a stabbing the deceased with a bayonet, the second count with suffocating or drowning him in the water, and the third count with killing a Black Native, whose name is unknown.

Patrick Dowling deposed that he was an assigned servant of Mr. Dangar's, stationed at a sheep-fold at Liverpool Plains, I know the prisoner, he was in the employ of Mr. Dangar in June last, he was employed as a shepherd; the prisoner told me he had lost a sheep, which was taken by three black men; he said he knew them all; one was Jemmy, one Wolf, and the other Porter; the prisoner and myself went and looked for the sheep; we found the three blacks; we made an attempt to take them, but two escaped; we caught one, which was Old Jemmy; we took him to the sheep station that night, and the next morning we went with Old Jemmy and another black, and he took us to where there were some blacks encamped, and shewed us some parts of the skin belonging to the sheep; we then took Old Jemmy to the Overseer, and there I left him, the prisoner, Old Jemmy, and the Overseer together, saying I had done my duty, and I would have no more to do with it; I went out about sun-rise; about 12 o'clock I heard the black (cooing) or crying out; I could not see Finney or his flock any where; I saw Finney about three o'clock; I asked him where was Jemmy; prisoner said he cryed out and he let him go; about two days afterwards some blacks made an attack upon us, when we were in our hut; the blacks told us we were very stupid for taking Old Jemmy, and that they would make us tumble down for it; they then commenced making fires all round the hut, and remained near us all night, in the morning they went away.

John Hilton deposed -  I was an assigned servant of Mr. Dangar's in June last; I was employed at Liverpool Plains; I was a watchman there; I know the prisoner Finney; I remember prisoner and Dowling bringing a black man to the hut; it was on Monday morning, the 21st June; the black man they called Old Jemmy; they charged him with stealing a sheep; the prisoner insisted upon taking the black man to Mr. Dangar, but he overseer said Mr. Dangar was not at home; the overseer told the prisoner to keep the black until the master came home; there were there the prisoner, overseer, and Dowling; they then tied the black's hands behind him; and the overseer told the prisoner to take care of him till Mr. Dangar came home; about twelve o'clock I heard the cries of a black man, and I said to Dowling, there is Finney beating the black fellow, I suppose he will not go on; the prisoner came home about two o'clock, and I asked him what he had done with the black fellow; prisoner said he had let him go; the day after, prisoner came to me, and said, Jack, I want you to do me a favour; the black jumped into the creek and drowned himself, and I want you to come with me and help to bury him, for fear the other blacks should find it out and kill us; so with that I considered a little, and then went with the prisoner to help to bury him; I saw the body lying in the creek; the black's hands were tied behind him; we got him out, and carried him upon two handspikes to a place and buried him; in burying him I discovered a wound in his side; I said to Finney, look at this wound; how did it happen? prisoner said it was the fish had done it; I said it was not the fish, but I thought it was done with the old bayonet; upon this Finney smiled, and said no more, but buried him; the next evening about ten or twelve blacks surrounded our hut, and make fires, and staid against the hut all night; during the night prisoner and Dowling ran off to Mr. Dangar's, and Mr. Dangar came to the hut next morning, with Finney and Dowling; Finney and myself were going over to the station, two days after, when the prisoner asked me who told Mr. Dangar; I said perhaps it was Patrick; prisoner said he would as soon blow his head off as he would a black fellow's; I had occasion to go every day from the hut to the creek where the black man's body lay; I never observed any blood on the grass or on the bushes, or on the body; I did not show Mr. Dangar where the body lay, for he never asked me.

By the Judge - Hilton, upon your solemn oath, do you know how the man came by his death?

Witness - I do not know how the deceased came by his death.

By the Prisoner - did I not tell you, that the black-fellow had jumped in, and that I had reported it to the overseer, and he had ordered me to fetch you.

Witness - Yes you did.

James Ralph deposed, I was overseer to Mr. Dangar in June last; I recollect the prisoner and Dowling bringing a black man to the hut, on the charge of killing one of the shepherd's sheep; the prisoner said, he would take him to Mr. Dangar; I told him Mr. Dangar was not at home; the prisoner said, he would take him into the bush and keep him till Mr. Dangar came home; the black man and the prisoner then went away together, and I went towards my own house.

By the Judge - Did you order the black's hands to be tied.

Witness - I did not.

By the Judge - Had the prisoner a musket or bayonet in his hand when the black man and the prisoner left the hut.

Witness - He had not I am certain, or else I should have seen it.

By the Judge - Is it true, that you, the black man and the prisoner, walked together towards the Creek.

Witness - It is not ; for I went in quite a contrary direction.

Judge - Did you ask the black man any questions respecting the sheep.

Witness - I did; and he told me, that himself and two others stole the sheep and eat it.

Judge - Prisoner, if you have any thing to say in you defence, now is the time for you to speak.

Prisoner - I am as innocent of the crime laid to my charge as a child.

The Judge then summed up the evidence to the Jury, who returned a verdict of - Not Guilty.

 

Notes

[1 ] See also Sydney Herald, 21 November 1833.  The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2409, vol. 6, p. 18-42.

Another clash in 1833 did not lead to a criminal trial. On 30 November 1833, a Hunter River magistrate, Scott, reported that an escaped convict and bushranger, Herbert Owen, had attacked an Aborigine known as Jimmy.  Owen hit Jimmy in the face with an axe, causing serious injury.  There seem to have been two motives: robbery plus revenge because Aborigines had helped in the capture of Owen's bushranging mates (Riley and another) through tracking.  Jimmy had possession of a gun, which Owen stole.  The natives had complained that convicts at several farms had threatened to murder them with an axe.  Owen was the last of a desperate gang of ten bushrangers.  Source: Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, pp 134-137 (document online).

See also the Australian, 23 December 1833 reporting that a native was shot at Fremantle in the Swan River colony while robbing a store.  This was followed by the revenge spearing of two whites by Yagan, brother of the first man shot (Dougan).  Yagan's father was then taken and shot at Perth, followed by the killing of Yagan.

For material on similar clashes in Van Diemen's Land, see Historical Records of Australia, Series 1, Vol. 15, p. 446.

[2 ] This was one of the first cases in which a criminal trial was held before a jury of civilians.  Since 1788, all major criminal trials had been held before a jury of military and naval officers.  See Australian, 18 November 1833; and see Dowling, Proceedings of the Supreme Court, Vol. 91, Archives Office of New South Wales, 2/3274, p. 187.

Published by the Division of Law, Macquarie University